EXHIBIT 20
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EXECUTION VERSION
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ASSIGNMENT AND PLEDGE AGREEMENT
THIS ASSIGNMENT AND PLEDGE AGREEMENT (this "AGREEMENT") dated
as of August 8, 2003 is executed and delivered by the undersigned ("PLEDGOR") in
favor of SUNTRUST BANK (the "SECURED PARTY").
RECITALS
A. The Secured Party has agreed to issue that certain
Standby Letter of Credit No. F841723 (the "CREDIT") for the benefit of the
Beneficiary (as such term is defined in the Credit) and for the account of AFO,
LLC, a limited liability company organized under the laws of the State of
Florida (the "Applicant"), pursuant to that certain Application and Agreement
for Standby Irrevocable Letter of Credit dated August 8, 2003 and executed by
Applicant (the "APPLICATION").
B. The Credit is guaranteed by the Guarantor (as such
term is defined in that certain Guaranty of Payment and Performance dated as of
the date hereof (the "GUARANTY")), as evidenced by the Guaranty.
C. The Secured Party has stated that it will not issue
the Credit solely upon the covenants of the Applicant under the Credit, but will
require, as further collateral and security, a pledge of certain securities
owned by the Pledgor and held in Accounts (as such term is defined below)
maintained by The Northern Trust Company (the "INTERMEDIARY").
D. The Pledgor is a trust that holds assets for the
benefit of Xxxxx Xxxxxx, who will benefit from the issuance by the Secured Party
of the Credit and the transactions relating thereto.
E. Capitalized terms defined herein shall have the
meaning ascribed to them in the Credit.
NOW, THEREFORE, in consideration of the recitals, the sum of
$10.00 and other good and valuable consideration, the receipt of which is hereby
duly acknowledged, and in order to be of material benefit and assistance to
Applicant and in order to induce the Secured Party to make the Credit, the
Pledgor agrees as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION.
(a) DEFINITIONS. As used herein,
"Account" means that certain securities account maintained
with the Intermediary by and in the name of the Pledgor as more fully described
on Schedule A attached hereto.
"Affiliate Securities" means any securities that are listed on
the New York or American Stock Exchanges or the NASDAQ - National Market System
which were issued by entities of which the Pledgor is an affiliate as such term
is defined in Rule 144
under the Securities Act of 1933 and which the Pledgor has held for less than
two (2) years as determined under paragraph (d) of such rule.
"Collateral" means: (1) the Account; (2) all Financial Assets
now or hereafter credited to the Account; (3) all present and future Security
Entitlements with respect to such Financial Assets; (4) all cash balances now or
hereafter credited to the Account; (5) any replacement or successor Account; (6)
all books and records relating to any of the foregoing; (7) all proceeds of any
of the foregoing, including dividends, stock dividends, stock splits, interest
payments or other distributions of cash or other property; and (8) any rights
incidental to, or arising out of, the ownership of any of the foregoing, such as
voting, conversion, put, call and registration rights and rights of recovery for
violations of applicable securities laws.
"Credit Documents" means the Credit, the Application, this
Agreement, and the Guaranty.
"Eligible Investments" means: (1) securities that are listed
on the New York or American Stock Exchanges or the NASDAQ - National Market
System or any market-recognized international exchange comparable to NASDAQ -
National Market System, the New York Stock Exchange or the American Stock
Exchange, and are not Affiliate Securities; (2) marketable direct obligations
issued or unconditionally guaranteed by the United States Government (or by an
agency thereof) and backed by the full faith and credit of the United States
and/or an agency thereof; (3) bonds issued by any sovereign government,
province, state, municipality or other government or instrumentality thereof and
rated by Xxxxx'x Investor Services, Inc. ("MOODY'S") as A or above; (4)
corporate bonds quoted on a recognized bond exchange and rated by Moody's as A
or above; or (5) certificates of deposit, bankers acceptances and similar money
market instruments denominated in dollars and issued by banks having the highest
credit rating given by Moody's.
"Entitlement Order" means an "entitlement order" as defined in
the UCC.
"Event of Default" is defined in Section 5(a) of this
Agreement.
"Fair Market Value" means, (i) with respect to any other
marketable security, the average of the closing prices thereof on all securities
exchanges (whether domestic or foreign) on which such security may be listed on
the date of valuation, and (ii) in the case of any other property or interest in
property, the "Fair Market Value" shall be the fair value thereof as determined
by the Secured Party in its sole but reasonable discretion.
"Financial Asset" means "financial asset" as defined in the
UCC.
"Obligations" is used herein in its most comprehensive sense
and includes all indebtedness, obligations (including, but not limited to,
reimbursement obligations under the Application) and liabilities of the
Applicant and the Pledgor to the Secured Party, whether direct or indirect,
joint or several, absolute or contingent, due or to
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become due, now existing or hereafter arising under or in respect of this
Agreement, the other Credit Documents, the Control Agreement (as such term is
defined below) or any other agreement between the Applicant or Pledgor and the
Secured Party relating to the Credit, including the Application, any promissory
notes, guaranties or other instruments or agreements executed and delivered
pursuant thereto or in connection therewith or this Agreement, whether or not
contemplated by the parties on the date hereof.
"Securities Accounts" means "securities accounts" as defined
in the UCC.
"Security Entitlement" means "security entitlement" as defined
in the UCC.
"UCC" means the Uniform Commercial Code now or hereafter in
effect in the State of Florida.
(b) RULES OF CONSTRUCTION. In this Agreement, words in
the singular number include the plural, and in the plural include the singular,
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender. The word
"or" is disjunctive but not exclusive. "Includes" and "including" are not
limiting. The captions appearing in this Agreement are inserted only as a matter
of convenience. They do not define, limit or describe the scope or intent of the
provisions of this Agreement.
2. SECURITY INTEREST.
(a) GRANT OF SECURITY INTEREST. To secure the payment and
performance in full of the Obligations, Pledgor hereby assigns and pledges to
the Secured Party a security interest in the Pledgor's right, title and interest
in the Collateral, whether now owned or hereafter acquired by Pledgor, wherever
located, whether now or hereafter existing or arising.
(b) CONTROL AGREEMENT. Simultaneously with the execution
and delivery of this Agreement, Pledgor, the Secured Party and Intermediary have
executed and delivered a Custodial Account Control Agreement (the "CONTROL
AGREEMENT") for the purpose of perfecting the Secured Party's security interest.
(c) VOTING AND TRADING RIGHTS. If no Event of Default has
occurred or is continuing, Pledgor may make trades in the Account and exercise
any voting or consensual rights that Pledgor may have as to any of the
Collateral for any purpose which is not inconsistent with this Agreement. If an
Event of Default has occurred, then the Pledgor shall cease making trades in the
Account and shall instruct the Intermediary in writing, with a copy to the
Secured Party, to cease making trades on the Pledgor's behalf on the Account. In
addition, the Secured Party may exercise all voting or consensual rights as to
any of the Collateral, and the Pledgor shall deliver to the Secured Party all
notices, proxy statements, proxies and other information and instruments
relating to the exercise of such rights received by the Pledgor from the issuers
of any of the Collateral promptly upon receipt thereof and shall at the request
of the Secured Party execute and
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deliver to the Secured Party any proxies or other instruments which are, in the
judgment of the Secured Party, necessary for the Secured Party to validly
exercise such voting and consensual rights.
(d) DUTY OF THE SECURED PARTY. If the Secured Party takes
possession of any of the Collateral, the duty of the Secured Party with respect
to the Collateral shall be solely to use reasonable care in the physical custody
thereof, and the Secured Party shall not be under any obligation to take any
action with respect to any Collateral or to preserve rights against prior
parties. The powers conferred on the Secured Party hereunder are solely to
protect its interest in the Collateral and do not impose any duty upon it to
exercise any such powers. Pledgor is not looking to the Secured Party to provide
the Pledgor with investment advice. The Secured Party shall have no duty to
ascertain or take any action with respect to calls, conversions, exchanges,
maturities, tenders or other matters concerning any Collateral, whether or not
the Secured Party has or is deemed to have knowledge of such matters, or as to
the taking of any necessary steps to preserve any rights pertaining to any
Collateral. The Secured Party shall have no duty to preserve the value of any of
the Collateral.
(e) SUBSEQUENT CHANGES AFFECTING COLLATERAL. Pledgor
acknowledges that it has made its own arrangements for keeping informed of
changes or potential changes affecting the Collateral (including conversions,
subscriptions, exchanges, reorganizations, dividends, tender offers, mergers,
consolidations and shareholder meetings), and the Pledgor agrees that the
Secured Party has no responsibility to inform it of such matters or to take any
action with respect thereto even if any of the Collateral has been registered in
the name of the Secured Party or its agent or nominee.
(f) RETURN OF COLLATERAL. The security interest granted
to the Secured Party hereunder shall not terminate and the Secured Party shall
not be required to return the Collateral to the Pledgor or to terminate its
security interest therein unless and until: (a) the Obligations have been fully
paid or performed; (b) the obligations of all parties to the Credit Documents
have been fully paid or performed; and (c) Pledgor has reimbursed the Secured
Party for any expenses of returning the Collateral and filing any termination
statements and other instruments as are required to be filed in public offices
under applicable laws.
(g) TAX REPORTING. All items of income, gain, expense and
loss recognized in the Account shall be reported to the appropriate tax
authorities under the name and taxpayer identification number of the Pledgor.
3. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants to the Secured Party as follows:
(a) ENFORCEABILITY. This Agreement and the Control
Agreement have been duly executed and delivered by the Pledgor, constitute valid
and legally binding obligations and are enforceable in accordance with their
respective terms against the Pledgor.
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(b) NO CONFLICT. The execution, delivery and performance
of this Agreement and the Control Agreement, the grant of the security interest
in the Collateral hereunder and the consummation of the transactions
contemplated hereby and thereby will not, with or without the giving of notice
or the lapse of time, (a) violate any material law applicable to the Pledgor;
(b) violate any judgment, writ, injunction or order of any court or governmental
body or officer applicable to the Pledgor; (c) violate or result in the breach
of any material agreement to which the Pledgor is a party or by which any of the
Pledgor's properties, including the Collateral, is bound; nor (d) violate any
restriction on the transfer of any of the Collateral.
(c) CONSENT. No consent, approval, license, permit or
other authorization of any third party (other than Intermediary) or any
governmental body or officer is required for the valid and lawful execution and
delivery of this Agreement and the Control Agreement, the creation and
perfection of the Secured Party's security interest in the Collateral or the
valid and lawful exercise by the Secured Party of remedies available to it under
this Agreement, the Control Agreement or applicable law or of the voting and
other rights granted to it in this Agreement or the Control Agreement except as
may be required for the offer or sale of those items of Collateral which are
securities under applicable securities laws.
(d) ACCOUNT. The Account, the Security Entitlements
carried in the Account, and other sums credited to the Account are the valid and
legally binding obligations of Intermediary, the Financial Assets or sums
credited thereto are valid and genuine, and the Pledgor has provided the Secured
Party with a complete and accurate statement of the Financial Assets, the
Security Entitlements and the money credited to the Account as of the date
hereof.
(e) SECURITY INTEREST. Pledgor is the sole owner of the
Collateral free and clear of all liens, encumbrances and adverse claims (other
than the Secured Party's security interest), has the unrestricted right to grant
the security interest provided for herein to the Secured Party and has granted
to the Secured Party a valid and perfected first priority security interest in
the Collateral free of all other liens, encumbrances, transfer restrictions and
adverse claims.
(f) INFORMATION. None of the information, documents, or
financial statements which have been furnished by the Pledgor's or Pledgor's
representatives to the Secured Party or any of its representatives in connection
with the transactions contemplated by this Agreement or the other Credit
Documents contains any untrue statement of material fact or omits to state any
material fact required to be stated hereby or thereby to make such statements
not misleading.
(g) NAME AND ADDRESS. Pledgor's full legal name correctly
set forth below, and Pledgor's address for mailing of notices or correspondence
is identified in Schedule B hereto.
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4. COVENANTS. Until all Obligations have been fully paid and
performed, the Pledgor hereby agrees that, unless the Secured Party otherwise
consents in writing:
(a) DEFEND TITLE. Pledgor shall defend its title to the
Collateral and the security interest of the Secured Party therein against the
claims of any person claiming rights in the Collateral against or through the
Pledgor and maintain and preserve such security interest.
(b) NO TRANSFERS OR WITHDRAWALS, COLLATERAL VALUE
MAINTENANCE.
(i) Pledgor shall neither sell nor offer to sell
nor otherwise transfer nor encumber any portion of the Collateral.
(ii) If at any time during any business day the
Fair Market Value of the Collateral is less than 160% of the then-outstanding
liability of the Secured Party under Section C(1) of the Credit, the Pledgor
shall immediately pledge (or cause to be pledged) to the Secured Party,
additional Collateral, the Fair Market Value of which, when added to the amount
of the Fair Market Value of the Collateral at such time, is sufficient to cause
Fair Market Value of the Collateral to be equal or greater than two hundred
percent (200%) of the then-outstanding liability of the Secured Party under
Section C(1) of the Credit. This provision shall not prohibit the Pledgor from
making trades in the Account before the occurrence of an Event of Default (as
such term is defined in Section 5(a) hereof); PROVIDED, that the proceeds of the
trades shall remain in the Account. The Secured Party agrees to give any consent
required by the Intermediary to effect a withdrawal permitted by Section 2.3.1
of the Control Agreement.
(c) PERMITTED INVESTMENTS. Pledgor shall permit the
Account to contain only cash and Eligible Investments.
(d) CONTROL AND CUSTOMER AGREEMENTS. Pledgor shall
neither attempt to modify nor attempt to terminate the Control Agreement or the
customer agreement with Intermediary under which the Account were established.
(e) FURTHER ASSURANCES.
(1) At Pledgor's expense, Pledgor shall do such
further acts and execute and deliver such additional agreements,
conveyances, certificates, instruments, legal opinions and other
assurances as the Secured Party may at any time request or require to
perfect, protect, assure or enforce its interest, rights and remedies
under this Agreement. Pledgor shall execute and deliver to the Secured
Party and file with the appropriate governmental offices one or more
UCC financing statements describing the Collateral, or amendments or
continuations thereof whenever necessary to continue the perfection of
the Secured Party's security interest hereunder and whenever requested
by the Secured Party.
(2) Pledgor shall promptly deliver any
certificate or instrument constituting or representing any of the
Collateral Pledgor may obtain possession
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of from time to time to Intermediary for credit to the Account, duly
endorsed in blank without restriction.
(3) Pledgor shall promptly deliver to
Intermediary any endorsements or instruments which may be necessary or
convenient to transfer any Financial Assets held by Intermediary, which
are registered in the name of, payable to the order of, or specially
endorsed to the Pledgor, to Intermediary or its securities intermediary
or to one of their respective nominees.
(f) CHANGE OF NAME OR ADDRESS. Pledgor shall notify the
Secured Party at least thirty (30) days before it changes its name or its
mailing address.
(g) ACCOUNT STATEMENTS. Pledgor shall cause Intermediary
to send to the Secured Party a complete and accurate copy of every statement,
confirmation, notice or other communication concerning the Account that
Intermediary sends to the Pledgor. All information furnished by the Pledgor
concerning the Collateral or otherwise in connection with this Agreement, is or
shall be at the time the same is furnished, accurate, correct and complete in
all material respects.
(h) CHANGES IN COLLATERAL. Pledgor shall advise the
Secured Party promptly, completely, accurately, in writing and in reasonable
detail: (a) of any material encumbrance upon or claim asserted against any of
the Collateral; and (b) of the occurrence of any event, other than changes in
general market conditions adequately reported in the general news media, that
would have a material adverse effect upon the aggregate value of the Collateral
or upon the Secured Party's security interest.
5. THE SECURED PARTY'S RIGHTS AND REMEDIES.
(a) EVENTS OF DEFAULT. "Event of Default" means any one
or more of the following:
(1) The occurrence of any "event of default" as
such term is used in any of the Credit Documents or the occurrence of
any other event which would entitle the Secured Party to declare any
portion of the Obligations forthwith due and payable; or
(2) Pledgor's failure to pay or perform, as the
case may be, any of the Obligations when the same become due; or
(3) Pledgor's or Intermediary's failure to pay
or perform any obligation or violates any covenant contained in this
Agreement or the Control Agreement; or
(4) If any representation or warranty made by
the Pledgor or Intermediary in this Agreement, the Control Agreement or
otherwise contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not
misleading in light of the circumstances in which they were made.
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(b) REMEDIES.
(1) If any Event of Default has occurred, then
the Secured Party shall have the rights and remedies of a secured party
under Articles 8 and 9 of the UCC. Without limiting the foregoing, the
Secured Party may, in its discretion: (a) deliver a notice of exclusive
control under the Control Agreement to Intermediary; (b) cause the
Account to be reregistered in its sole name or transfer the Account to
another broker/dealer in its sole name; (c) remove any Collateral from
the Account and register such Collateral in its name or in the name of
its broker/dealer, agent or nominee or any of their nominees; (d)
exchange certificates representing any of the Collateral for
certificates of larger or smaller denominations; (e) exercise any
voting, conversion, registration, purchase or other rights of a holder
of any of the Collateral; and (f) collect, including by legal action,
any notes, checks or other instruments for the payment of money
included in the Collateral and compromise or settle with any obligor of
such instruments.
(2) If the UCC requires notice of the time and
place of any public sale of the Collateral or the time after which any
private sale or other intended disposition, Pledgor acknowledges that
five (5) days' advance notice thereof will be a reasonable notice. The
Secured Party shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Secured Party may
adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(3) The Secured Party may purchase any part of
the Collateral, and the Secured Party may apply any part of the
Obligations in payment of any part of the purchase price thereof. If
the Secured Party sells any Collateral on credit or for future
delivery, the Secured Party need not retain it until the purchase price
is paid, and the Secured Party shall incur no liability if the
purchaser fails to take up or pay for such Collateral. In case of any
such failure, the Secured Party may sell such Collateral again.
(4) Any cash held by the Secured Party as
Collateral and all cash proceeds of any sale of, collection from, or
other realization upon all or any part of the Collateral may, in the
discretion of the Secured Party, be held by the Secured Party as
collateral for, or then or at any time thereafter be applied (after
payment of any amounts payable to the Secured Party pursuant to ss. 6
below) in whole or in part against, all or any part of the Obligations
in such order as the Secured Party may elect. Pledgor shall be liable
for any deficiency and shall be entitled to any surplus.
(5) Pledgor shall execute and deliver to the
purchasers of the Collateral all instruments and other documents
necessary or proper to sell, convey, and transfer title to such
Collateral and, if approval of any sale of Collateral by any
governmental body or officer is required, Pledgor shall prepare
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or cooperate fully in the preparation of and cause to be filed with
such governmental body or officer all necessary or proper applications,
reports, and forms and do all other things necessary or proper to
expeditiously obtain such approval.
(c) APPOINTMENT OF THE SECURED PARTY AS AGENT. Pledgor
hereby appoints and constitutes the Secured Party, its successors and assigns,
as Pledgor's agent and attorney-in-fact for the purpose of carrying out the
provisions of this Agreement and taking any action or executing any instrument
that the Secured Party considers necessary or convenient for such purpose,
including the power to endorse and deliver checks, notes and other instruments
for the payment of money in the name of and on behalf of the Pledgor, to endorse
and deliver in the name of and on behalf of the Pledgor securities certificates
and execute and deliver in the name of and on behalf of the Pledgor instructions
to the issuers of uncertified securities, and to execute and file in the name of
and on behalf of the Pledgor financing statements in such jurisdictions as the
Secured Party may require and any forms required by the United States Securities
and Exchange Commission. This appointment is coupled with an interest and is
irrevocable and will not be affected by the death, disability or bankruptcy of
the Pledgor nor by the lapse of time. If Pledgor fails to perform any act
required by this Agreement, the Secured Party may perform such act in the name
of and on behalf of the Pledgor and at Pledgor's expense. Pledgor hereby
consents and agrees that securities intermediaries, issuers of or obligors of
the Collateral, or any registrar or transfer agent or trustee for any of the
Collateral shall be entitled to accept the provisions hereof as conclusive
evidence of the rights of the Secured Party to effect any transfer pursuant to
this Agreement and the authority granted to the Secured Party herein,
notwithstanding any other notice or direction to the contrary heretofore or
hereafter given by the Pledgor, or any other person, to any of such
intermediaries, issuers, obligors, registrars, transfer agents, or trustees.
(d) IMPACT OF REGULATIONS. Pledgor acknowledges that
compliance with the Securities Act of 1933 and the rules and regulations
thereunder and any relevant state securities laws and other applicable laws may
impose limitations on the right of the Secured Party to sell or otherwise
dispose of securities included in the Collateral. Therefore, the Pledgor hereby
authorizes the Secured Party to sell any securities included in the Collateral
in such manner and to such persons as the Secured Party may reasonably deem
necessary or advisable in order that such sale may reasonably be affected
without registration or qualification under any applicable securities laws.
Pledgor understands that a sale under the foregoing circumstances may yield a
substantially lower price for such Collateral than would otherwise be obtainable
if the same were registered and sold in the open market, and Pledgor shall not
attempt to hold the Secured Party responsible for selling any of the Collateral
at an inadequate price even if the Secured Party accepts the first offer
received or if only one possible purchaser appears or bids at any such sale. If
the Secured Party shall sell any securities included in the Collateral at such
sale, the Secured Party shall have the right to rely upon the advice and opinion
of any qualified appraiser or investment banker as to the commercially
reasonable price obtainable on the sale thereof but shall not be obligated to
obtain such advice or opinion. Pledgor hereby assigns to the Secured Party any
registration rights or similar rights Pledgor may have from time to time with
respect to any of the Collateral.
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6. EXPENSES. Pledgor shall forthwith upon demand pay to the
Secured Party:
(a) the amount of any taxes which the Secured Party may
have been required to pay by reason of holding the Collateral or to free any of
the Collateral from any lien encumbrance or adverse claim thereon; and
(b) the amount of any and all out-of-pocket expenses,
including the fees and disbursements of counsel and of any brokers, investment
bankers, appraisers or other experts, that the Secured Party may incur in
connection with: (a) the administration or enforcement of this Agreement,
including such expenses as are incurred to preserve the value of the Collateral
and the validity, perfection, rank and value of the Secured Party's security
interest therein; (b) the collection, sale or other disposition of any of the
Collateral; (c) the exercise by the Secured Party of any of the rights conferred
upon it hereunder, including the Secured Party's performance of any obligation
of the Pledgor hereunder (without waiving any default); (d) the Secured Party's
discharging any taxes, liens, security interests or other encumbrances on the
Collateral; or (e) any action or proceeding to enforce its rights under this
Agreement or in pursuit of any non-judicial remedy hereunder including the sale
of the Collateral; and
(c) interest on the foregoing amounts until paid
(computed on the basis of the number of days elapsed over a year of 360 days) at
the highest rate allowed by law.
7. INDEMNITY. Pledgor shall indemnify the Secured Party and its
directors, officers, employees, agents and attorneys against, and hold them
harmless from, any liability, cost or expense, including the fees and
disbursements of their legal counsel, incurred by any of them under the
corporate or securities laws applicable to holding or selling any of the
Collateral, except for liability, cost or expense arising out of the
recklessness or willful misconduct or gross negligence of the indemnified
parties.
8. MISCELLANEOUS.
(a) NOTICES. All notices, requests, and demands shall be
in writing and be given to or made upon the respective parties hereto at their
addresses set forth above, or to such other address as either party shall
designate for itself in writing to the other party.
(b) NO WAIVER BY THE SECURED PARTY: NO ORAL
MODIFICATIONS. Notwithstanding any course of dealing between the parties,
neither failure nor delay on the part of the Secured Party to exercise any
right, power, or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege. No notice to or demand upon the Pledgor shall be
deemed to be a waiver of the obligation of the Pledgor or of the right of the
Secured Party to take further action without notice or demand. Notwithstanding
any course of dealing between the parties, no amendment, modification,
rescission, waiver or release of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by the Secured Party.
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(c) JOINT AND SEVERAL LIABILITY. The obligations of the
Pledgor hereunder and under the Control Agreement shall be joint and several.
(d) BENEFIT OF AGREEMENT. This Agreement shall be binding
upon the Pledgor, its successors and assigns, and inure to the benefit of and be
enforceable by the Secured Party, its successors and assigns. No other person
shall be entitled to claim any right or benefit hereunder, as third-party
beneficiary or otherwise.
(e) SEVERABILITY. If any provisions of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or enforceability without in any manner affecting the validity
or enforceability of such provision in any other jurisdiction or the remaining
provisions of this Agreement in any jurisdiction.
(f) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
(g) COMPLETE AGREEMENT. This Agreement, the schedules and
exhibits hereto and the agreements and instruments required to be executed and
delivered hereunder set forth the entire agreement of the parties with respect
to the subject matter hereof and supersede and discharge all prior agreements
(written and oral) and negotiations and all contemporaneous oral agreements
concerning such subject matter and negotiations.
(h) COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
(i) CONSENT TO JURISDICTION, WAIVER OF VENUE OBJECTION;
SERVICE OF PROCESS. WITHOUT LIMITING THE RIGHT OF THE SECURED PARTY TO BRING ANY
ACTION OR PROCEEDING AGAINST THE PLEDGOR OR AGAINST PROPERTY OF THE PLEDGOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT (AN "ACTION") IN THE COURTS OF
OTHER JURISDICTIONS, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO AND ACCEPTS THE
NON-EXCLUSIVE JURISDICTION OF ANY FLORIDA STATE COURT OR ANY FEDERAL COURT
SITTING IN MIAMI-DADE COUNTY, AND THE PLEDGOR HEREBY IRREVOCABLY AGREES THAT ANY
ACTION MAY BE HEARD AND DETERMINED IN SUCH FLORIDA STATE COURT OR IN SUCH
FEDERAL COURT. THE PLEDGOR HEREBY IRREVOCABLY WAIVES AND DISCLAIMS, TO THE
FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO, ANY DEFENSE OR OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY DEFENSE OR OBJECTION TO VENUE BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH THE PLEDGOR MAY NOW OR HEREAFTER HAVE TO
THE MAINTENANCE OF ANY ACTION IN ANY JURISDICTION. THE PLEDGOR HEREBY
IRREVOCABLY AGREES THAT THE SUMMONS AND COMPLAINT OR ANY OTHER PROCESS IN ANY
ACTION IN ANY
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JURISDICTION MAY BE SERVED BY MAILING (USING CERTIFIED OR REGISTERED MAIL,
POSTAGE PREPAID) TO AFO, LLC, X.X. XXX 00-0000, XXXXX, XXXXXXX 00000-0000,
ATTENTION: XXXXXXX XXXX. SUCH SERVICE WILL BE COMPLETE ON THE THIRD BUSINESS DAY
AFTER THE DATE SUCH PROCESS IS DELIVERED OR DELIVERY IS REFUSED, AND PLEDGOR
WILL HAVE THIRTY DAYS FROM SUCH COMPLETION OF SERVICE IN WHICH TO RESPOND IN THE
MANNER PROVIDED BY LAW. THE PLEDGOR MAY ALSO BE SERVED IN ANY OTHER MANNER
PERMITTED BY LAW, IN WHICH EVENT THE PLEDGOR'S TIME TO RESPOND SHALL BE THE TIME
PROVIDED BY LAW.
(j) WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED
BY LAW, PLEDGOR AND THE SECURED PARTY HEREBY IRREVOCABLY WAIVE AND DISCLAIM ANY
RIGHT TO TRIAL BY JURY (WHICH THE SECURED PARTY ALSO IRREVOCABLY WAIVES AND
DISCLAIMS) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING
OUT OF OR RELATING TO THIS AGREEMENT.
(k) JUDGMENT CURRENCY.
(i) If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in Dollars into another
currency, Pledgor agrees, to the fullest extent permitted by law, that the rate
of exchange used shall be that at which in accordance with normal banking
procedures the Secured Party could purchase Dollars with such other currency
after any premium and costs of exchange on the Business Day preceding that on
which final judgment is given.
(ii) The obligation of the Pledgor in respect of
any sum due from it to the Secured Party hereunder shall, notwithstanding any
payment in any other currency, whether pursuant to a judgment or otherwise, be
discharged only to the extent that on the Business Day following receipt by the
Secured Party of any sum adjudged to be so due in such other currency the
Secured Party may in accordance with normal banking procedures purchase Dollars
with such other currency, after any premium and costs of exchange. If the
Dollars so purchased are less than the sum originally due to the Secured Party
in Dollars, Pledgor agrees, as a separate and independent obligation and
notwithstanding any such payment, to indemnify the Secured Party against such
loss.
(l) WAIVER OF SOVEREIGN IMMUNITY. To the extent that the
Pledgor now has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment,
both before and after judgment, execution or otherwise) with respect to the
Pledgor or its property, Pledgor hereby irrevocably waives such immunity in
respect of its obligations hereunder and agrees that it will not raise or claim
any such immunity at or in respect of any such action or proceeding.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date and year first above written.
JMD DELAWARE, INC., AS TRUSTEE OF
THE XXX XXXXXX CONTINUED
IRREVOCABLE TRUST FOR XXXXX
XXXXXX
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
