EX-10.33
[LOGO EAB] PLEDGE AGREEMENT*
--------------------------------------------------------------------------------
THIS PLEDGE AGREEMENT is made on January 31, 1996, by the undersigned
(herein, whether one or more in number, referred to as "Pledgor" and which, if
two or more in number shall be jointly and severally bound) with an address as
it appears with the signature below to European American Bank, a New York
banking corporation (herein referred to as "Bank").
RECITALS
WHEREAS, Bank has extended credit to Pledgor; and
WHEREAS, to induce Bank to extend credit to Pledgor and in
consideration of any existing and future obligation of Pledgor to Bank, Pledgor
wishes to grant further security for Borrower's performance of its obligations
to Bank and, to that effect, to pledge and assign to Bank all of its rights,
title and interest in securities owned by Pledgor, represented by the stock
certificates listed on Schedule A hereto (the "Pledged Shares"):
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, Pledgor agrees as follows:
1. Security Interest.
(a) As security for the Obligations (as defined below), Pledgor hereby
delivers, pledges to Bank, and creates in Bank, a first security interest in all
of its right, title and interest in and to all of the Pledged Shares together
with all rights and privileges of Pledgor with respect thereto, all proceeds,
income and profits thereof and all property received with respect to the Pledged
Shares in addition thereto, in exchange thereof or in substitution therefor (the
"Collateral").
(b) This Pledge Agreement secures the payment of all now existing or
hereafter arising obligations of Pledgor to Bank, whether primary or secondary,
direct or indirect, absolute or contingent, joint or several, secured or
unsecured, due or not, liquidated or unliquidated, arising by operation of law
or otherwise under any promissory note, guarantee, loan or credit agreement,
letter of credit, draft, acceptance, interest rate or foreign exchange
agreement, mortgage or other documents evidencing indebtedness whether for
principal, interest, fees, expenses or otherwise, together with all costs of
collection or enforcement, including, without limitation, reasonable attorneys
fees incurred in any collection efforts or in any action or proceeding (all such
obligations being the "Obligations").
2. Stock Dividends, Options, or Other Adjustments. Until the date on
which this Pledge Agreement terminates as provided in Section 11 hereof, Bank
shall receive as Collateral any and all additional shares of stock or any other
property of any kind distributable on or by reason of the Collateral, whether in
the form of or by way of stock dividends, warrants, liquidation, partial
liquidation, conversion, prepayments or redemptions (in whole or in part) or
otherwise. If any additional shares of capital stock, instruments, or other
property against which a security interest can only be perfected by possession
by Bank, which are distributable on or by reason of the Collateral shall come
into the possession or control of Pledgor, Pledgor shall hold or control and
forthwith transfer and deliver the same to Bank, subject to the provisions
hereof. However, Pledgor may receive and retain cash dividends or cash interest
payments made prior to the occurrence of an Event of Default (as defined below).
3. Delivery of Share Certificates: Stock Powers: Registration of
Pledge. All instruments and share certificates representing the Collateral are
being delivered to Bank simultaneously herewith together with stock powers duly
executed in blank by Pledgor. Pledgor shall deliver or cause the entity issuing
the Collateral to deliver directly to Bank all instruments, share certificates
or other documents representing Collateral acquired or received after the date
of this Agreement with a stock power duly executed by Pledgor. If at any time
Bank notifies Pledgor that additional stock powers endorsed in blank held by
Bank with respect to the Collateral are required, Pledgor shall promptly execute
in blank and deliver such stock powers as Pledgee may request. If advisable in
the sole determination of Bank, Pledgor shall cause the issuer of the Pledged
Shares to register Bank as the record owner of the Pledged Shares on its stock
books.
4. Power of Attorney. Whether or not any Event of Default (as defined
below) has occurred, Pledgor hereby constitutes and irrevocably appoints Bank,
with full power of substitution and revocation by Bank, as Pledgor's true and
lawful attorney-in-fact, to the full extent permitted by law, to transfer or
cause the transfer of the Collateral, or any part thereof on the books of the
entity issuing
----------
* This form is to be used when Borrower pledges shares owned by it to secure
its own obligations.
This form is to be used when Pledgor holds share certificates and delivers
possession to Bank.
the same, to the name of Bank or Bank's nominee and thereafter exercise as to
such Collateral all the rights, power and remedies of an owner and otherwise to
take such actions and execute such instruments as Bank may deem necessary or
advisable to accomplish the purposes of this Agreement. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect the interest of Bank in the Collateral
and shall not impose any duty upon Bank to exercise any power. This power of
attorney shall be irrevocable as one coupled with an interest prior to the
payment in full or other satisfaction of all of the Obligations to Bank.
5. Inducing Representations of Pledgor. Pledgor represents and
warrants to Bank that:
(a) Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Collateral, free and clear of all pledges, liens,
security interests and other encumbrances other than the security interest
created by this Agreement, and Pledgor has the unqualified right and authority
to execute this Agreement and to pledge the Collateral to Bank, as provided for
herein;
(b) There are no outstanding options, warrants or other agreements
with respect to the Collateral;
(c) The Pledged Shares have been validly issued and are fully paid and
non-assessable; the holder or holders thereof are not and will not be subject to
any personal liability as such holder; and are not subject to any charter,
bylaw, statutory, contractual or other restriction governing their issuance,
pledge, transfer, ownership or control except that sale or transfer may be
limited in the absence of an effective registration statement (i) under the
Securities Act of 1933, as amended (the "Act"), (ii) under applicable state
securities laws, and (iii) under applicable non-U.S. laws provided however that
if any such registration statement is unnecessary, Pledgor shall provide Bank an
opinion of counsel satisfactory to Bank that the sale or transfer is exempt from
registration under said Act and laws);
(d) Any consent, approval or authorization of or designation or filing
with any authority on the part of Pledgor which is required in connection with
the pledge and security interest granted under this Agreement has been obtained
or effected and is in full force and effect; and
(e) The execution and delivery of this Agreement by Pledgor, and the
performance by Pledgor of its obligations hereunder, will not result in a
violation of any mortgage, indenture, contract, instrument, judgment, decree,
order, statute, rule or regulation to which Pledgor is subject.
6. Obligations of Pledgor. Pledgor further covenants to Bank that,
during the term hereof:
(a) Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any lien or encumbrance to be created upon or with respect to,
any of the Collateral (other than as created under this Agreement);
(b) Pledgor will, at its own expense, at any time and from time to
time at Bank's request, execute and deliver such agreements and other documents
as may be requested by Bank to further preserve, perfect or enforce Bank's
rights, interests and remedies provided in this Agreement.
7. Rights of Pledgor. Prior to the occurrence and continuance of an
Event of Default (as defined below), and so long as Bank has not transferred the
Collateral to its own name under Section 4 hereof, Pledgor shall be entitled to
vote or consent with respect to the Collateral in any manner not inconsistent
with this Agreement or any note, document or instrument delivered pursuant to or
in connection with this Agreement or with the Obligations. Pledgor hereby grants
to Bank an irrevocable proxy to vote the Collateral, which proxy shall be
effective immediately upon the occurrence of an Event of Default or registration
of the Collateral in the name of Bank.
8. Rights of Bank. At any time whether or not an Event of Default
shall exist, unless otherwise explicitly noted below in this Section and without
notice, Bank may:
(a) Collect by legal proceedings or otherwise all dividends, interest,
principal payments, capital distributions and other sums now or hereafter
payable on account of said Collateral, and hold the same as part of the
Collateral, or apply the same to any of the Obligations in such manner and order
as Bank may decide in its sole discretion;
(b) Upon the occurrence and continuance of an Event of Default, enter
into any extension, subordination, reorganization, deposit, merger, or
consolidation agreement or any other agreement relating to or affecting the
Collateral and, in connection
2
therewith, deposit or surrender control of such Collateral thereunder, and
accept other property in exchange therefor and hold and apply such property or
money so received in accordance with the provisions hereof; or
(c) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral, or pay for the maintenance and
preservation of the Collateral; and the amount of such payments, plus any and
all fees, costs and expenses of Bank (including attorneys' fees and
disbursements), in connection therewith, shall, at Bank's option, be reimbursed
by Pledgor on demand, with interest thereon at the highest interest rate
applicable with respect to the Obligations from the date paid, or added to the
Obligations secured hereby
9. Event of Default: Remedies.
(a) The occurrence of any one or more of the following events shall
constitute an event of default ("Event of Default") under this Agreement: (i) if
a "Default" or "Event of Default" shall occur under the terms of any agreement
giving rise to or executed in connection with the Obligations; (ii) if at any
time Bank shall, in its sole discretion, consider the Obligations insecure or
any part of the Collateral unsafe, insecure or insufficient, and Pledgor shall
not on demand furnish other collateral or make payment on account, satisfactory
to Bank; (iii) if Pledgor or any obligor or guarantor of, or any party to, any
of the Obligations or the Collateral (the same, including Pledgor, being
collectively referred to herein as "Obligors") shall default in the punctual
payment of any sum payable with respect to, or in the observance or performance
of any of the terms and conditions of, any Obligations or of this Pledge
Agreement or any other agreement between any Obligor and Bank; (iv) if any
warranty or representation made to Bank at any time by or on behalf of any
Obligor is false or misleading in any material respect when made; (v) in the
event of the making or filing of any lien, levy, or execution on, or seizure,
attachment or garnishment of, any of the Collateral; (vi) if any of the Obligors
being a natural person or any general partner or member of an Obligor which is a
partnership or limited liability company, shall die or (being a partnership,
limited liability company or corporation) shall be dissolved, or if any of the
Obligors (if a corporation) shall fail to maintain its corporate existence in
good standing; (vii) or if any of the Obligors shall become insolvent however
defined or evidenced) or make an assignment for the benefit of creditors, or
make or send notice of an intended bulk transfer, or if there shall be convened
a meeting of the creditors or principal creditors of any of the Obligors or if a
committee of creditors is appointed for any of them; (viii) or if there shall be
filed by or against any of the Obligors any petition for any relief under the
bankruptcy laws of the United States now or hereafter in effect or under any
insolvency, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction now or hereafter in effect (whether at law or in equity); (ix)
if the usual business of any of the Obligors shall be terminated or suspended;
(x) if any proceedings, procedure or remedy supplementary to or in enforcement
or judgment shall be commenced against, or with respect to any property or, any
of the Obligors; or (xi) if any petition or application to any court or
tribunal, at law or in equity, be filed by or against any of the Obligors for
the appointment of any receiver or trustee for any of the Obligors or any part
of the property of any of them.
(b) Upon the occurrence and continuance of an Event of Default as
hereinbefore defined:
(i) In addition to all the rights and remedies of a secured party
under the Uniform Commercial Code, Bank shall have the right, and without demand
of performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon the Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly waived to the
extent permitted by law), to proceed forthwith to collect, receive, appropriate
and realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange, broker's
board or at any of Bank's offices or elsewhere at such prices and on such terms
(including, without limitation, a requirement that any purchaser of all or any
part of the Collateral shall be required to purchase any securities constituting
the Collateral solely for investment and without any intention to make a
distribution thereof) as Bank in its sole and absolute discretion deems
appropriate without any liability for any loss due to decrease in the market
value of the Collateral during the period held or the manner in which the
Collateral is sold. If any notification of intended disposition of the
Collateral is required by law, such notification shall be deemed reasonable and
properly given if mailed, postage prepaid, at least ten (10) days before any
such disposition, to Pledgor's address indicated below. Any disposition of the
Collateral or any part thereof may be for cash or on credit or for future
delivery without assumption of any credit risk, with the right to Bank to
purchase all or any part of the Collateral so sold at any such sale or sales,
public or private, free of any equity of redemption or right of redemption in
the Pledgor, which right or equity is, to extent permitted by applicable law,
hereby expressly waived or released by the Pledgor.
(ii) All of Bank's rights and remedies, including but not limited
to the foregoing, shall be cumulative and not exclusive and shall be enforceable
alternatively, successively or concurrently as Bank may deem expedient.
3
(iii) Bank may elect, at Pledgor's expense, to obtain the advice
of any investment banking firm or other advisor, with respect to the method and
manner of sale or other disposition of any of the Collateral, the best price
reasonably obtainable therefor, the consideration of cash or credit terms, or
any other details concerning such sale or disposition. Bank, in its sole
discretion, may elect to sell on such credit terms which it deems reasonable.
The sale of any of the Collateral on credit terms shall not relieve Pledgor of
its liability under any of the Obligations until the full purchase price for the
Collateral has been paid in full. All payments received by Bank in respect of
all sale of Collateral shall be applied to the Obligations in such order as Bank
shall elect, as and when such payments are received.
(iv) Pledgor recognizes that Bank may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in the Act or in any applicable U.S. state laws or non-U.S. laws, but
may be compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire the
Collateral for their own account, for investment and not with a view for the
distribution or resale thereof. Pledgor agrees that private sales so made may be
at prices and on other terms less favorable to the seller than if the Collateral
were sold at public sale, and that Bank has no obligation to delay the sale of
any Collateral for the period of time necessary to permit the registration of
the Collateral for public sale under the Act. Pledgor agrees that a private sale
or sales made under the foregoing circumstances shall be deemed to have been
made in a commercially reasonable manner.
(v) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effect any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure the same. Pledgor further agrees to use its best efforts
to secure such sale or other disposition of the Collateral as Bank may deem
necessary pursuant to the terms of this Agreement.
(vi) Upon any sale or other disposition, Bank shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold or disposed of. Each purchaser at any such sale or other disposition
(including Bank) shall hold the Collateral free from any claim or right of
whatever kind, including any equity of redemption or right of redemption of
Pledgor. Pledgor specifically waives, to the extent permitted by applicable law,
all rights of redemption, stay or appraisal which they had or may have under any
rule of law or statute now existing or hereafter adopted.
(vii) Bank shall not be obligated to make any sale or other
disposition, unless the terms thereof shall be satisfactory to it. Bank may,
without notice or publication, adjourn any private or public sale, and, upon
five (5) days prior notice to Pledgor, hold such sale at any time or place to
which the same may be so adjourned. In case of any sale of all or any part of
the Collateral, on credit or future delivery, the Collateral so sold may be
retained by Bank until the selling price is paid by the purchaser thereof, but
Bank shall incur no liability in case of the failure of such purchaser to take
up and pay for the property so sold and, in case of any such failure, such
property may again be sold as herein provided.
10. Disposition of Proceeds.
The proceeds of any sale or disposition of all or any part of the
Collateral shall be applied by Bank in the following order:
(i) to the payment in full of the costs and expenses of such sale
or sales, collections, and the protection, declaration and enforcement of any
security interest granted hereunder, including the reasonable compensation of
Bank's agents and attorneys;
(ii) to the payment of the Obligations in such order as Bank may
elect; and
(iii) to the payment to Pledgor of any surplus then remaining
from such proceeds, subject to the rights of any holder of a lien on the
Collateral of which Bank has actual notice.
11. Termination. This Pledge Agreement shall continue in full force
and effect until all of the Obligations shall have either been paid in full or
otherwise satisfied. Subject to any sale or other disposition by Bank of the
Collateral or any part thereof pursuant to this Agreement, at such termination
Bank shall return the Collateral to Pledgor without warranty by or recourse to
Bank.
4
12. General Provisions.
(a) All expenses (including reasonable fees and disbursements of
counsel) incurred by Bank in connection with any actual or attempted sale of the
Collateral, or any other action taken by Bank hereunder whether directly or as
attorney-in-fact pursuant to a power of attorney or other authorization herein
conferred, for the purpose of enforcing satisfaction of the liability of Pledgor
hereunder, including Pledgor's failure to pay Bank's costs of acting against the
Collateral as provided herein, shall be deemed an Obligation of Pledgor for all
purposes of this Agreement and Bank may apply the Collateral to payment of or
reimbursement of itself for such liability.
(b) Bank and its assigns shall have no obligation in respect of the
Collateral, except to use reasonable care in holding the Collateral and to hold
and dispose of the same in accordance with the terms of this Agreement.
(c) Unless the party to be notified otherwise notifies the other party
in writing as provided in this Section, notices shall be given hereunder by
telecopy, by certified mail or by recognized overnight delivery services to any
party at its address on the signature page of this Pledge Agreement. Notices
shall be effective (a) if given by certified mail, on the third day after
deposit in the mails with postage prepaid, addressed as aforesaid; (b) if given
by recognized overnight delivery service, on the business day following deposit
with such service, addressed as aforesaid; or (c) if given by telecopy, when the
telecopy is transmitted to the telecopy number as aforesaid; provided that all
notices to Bank shall be effective on receipt.
(d) No course of dealing between Pledgor and Bank or Bank's failure to
exercise or delay in exercising any right, power or privilege hereunder shall
operate as a waiver thereof. Any single or partial exercise of any right, power
or privilege hereunder shall not preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
(e) The provisions of this Pledge Agreement are severable, and if any
clause or provision shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Pledge Agreement in any jurisdiction.
(f) This Pledge Agreement is subject to modification only by a writing
signed by all of the parties hereto.
(g) The benefits and burdens of this Pledge Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties hereto; provided, however, that the rights and obligations of Pledgor
under this Pledge Agreement shall not be assigned or delegated without the prior
consent of Bank.
(h) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflicts of laws
principles, Pledgor hereby irrevocably consents to the jurisdiction of the
courts of the State of New York and of any Federal Court located in such State
in connection with any action or proceeding arising out of or relating to the
Obligations, this Pledge Agreement or the Collateral, or any document or
instrument delivered with respect to any of the Obligations. Pledgor hereby
waives personal service of any summons, complaint or other process in connection
with any such action or proceeding and agrees that the service thereof may be
made by certified mail directed to Pledgor at the address provided herein for
receipt of notices. Pledgor so served shall appear or answer to such summons,
complaint or other process within thirty days after the mailing thereof. Should
Pledgor so served fail to appear or answer within said thirty-day period, such
Pledgor shall be deemed in default and judgment may be entered by Bank against
such Pledgor for the amount or such other relief as may be demanded in any
summons, complaint or other process so served. In the alternative, in its
discretion Bank may effect service upon Pledgor in any other form or manner
permitted by law.
(i) IN THE EVENT OF ANY LITIGATION RELATING TO THIS AGREEMENT OR THE
OBLIGATIONS, PLEDGOR AND BANK EACH WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY.
5
IN WITNESS WHEREOF, Pledgor has executed and delivered this Agreement as of the
date first above written.
Trust U/W X. Xxxxxx Xxxxx
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Trust U/W X. Xxxxxx Xxxxx
Title: Xxxxx X. Xxxxx
Managing Trustee
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
WITNESS:
[illegible]
6
SCHEDULE "A" TO PLEDGE AGREEMENT DATED JANUARY 31, 1996
Pledged Shares
American International Group, Inc.: 87,468 shares I/N/O Trust U/W X. Xxxxxx
Xxxxx Cusip 000000000.
Investment Account # 5990.
Trust U/W X. Xxxxxx Xxxxx
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Trust U/W X. Xxxxxx Xxxxx
Title: Xxxxx X. Xxxxx
Managing Trustee
