EXHIBIT E
PLEDGE AND ASSIGNMENT AGREEMENT
PLEDGE AND ASSIGNMENT AGREEMENT (this "Agreement"), dated as of March 15,
2001, between ARGENESIS CORPORATION, a Delaware corporation (herein, together
with its successors and assigns, the "Pledgor") and LINEDATA SERVICES, a
corporation organized under the laws of France (herein, together with its
successors and assigns in such capacity, the "Secured Party"), made pursuant to
the Purchase Agreement (as herein defined).
RECITALS:
WHEREAS, the Pledgor and the Secured Party have entered into the Long View
Purchase Agreement dated as of the date hereof (said agreement, as it may
hereafter be amended, modified, revised, or supplemented from time to time, the
"Purchase Agreement"), whereby The Secured Party will purchase all of the
outstanding capital stock of The Long View Group, Inc., a Massachusetts
corporation ("Long View"), a wholly owned subsidiary of the Pledgor;
WHEREAS, pursuant to Sections 7.2 and 7.5 of the Purchase Agreement, the
Pledgor has opened an interest-bearing deposit account (such account, and any
extension or renewal of such account from time to time, being the "Account")
with ZIONS FIRST NATIONAL BANK, a national bank chartered under the laws of the
United States, in Salt Lake City, Utah (the "Deposit Agent") as Account No.
000-0000-0, styled in the name of the Deposit Agent as collateral agent and
bailee for the Secured Party, subject to the terms of this Agreement in the
amount of $2,900,000.00 (the "Deposit");
WHEREAS, the Pledgor, the Secured Party and the Deposit Agent have entered
into a Deposit Account, Escrow and Control Agreement dated as of the date hereof
(the "Deposit Agreement") pursuant to Sections 7.2 and 7.5 of the Purchase
Agreement and this Agreement, the provisions of which enable the Secured Party
to maintain possession and control over the Account; and
WHEREAS, it is a condition to the closing of the sale and purchase of the
Long View capital stock that the Pledgor shall have made the pledge and
assignment contemplated by this Agreement to secure its indemnification
obligations pursuant to Sections 7.2 and 7.5 of the Purchase Agreement.
AGREEMENTS:
NOW THEREFORE, in consideration of the premises and in order to induce the
Secured Party to perform its obligations under the Purchase Agreement, and in
consideration of the representations, warranties, covenants and agreements of
the parties hereto, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Pledgor hereby agrees with the
Secured Party as follows:
1. Definitions.
1.1 Defined Terms. Unless otherwise defined herein, terms defined in the
Purchase Agreement and used herein shall have the meanings given to them in the
Purchase Agreement. As used herein, The following terms shall have the following
meanings:
"Claim": as defined in Section 2 of the Deposit Agreement.
"Collateral": as defined in Section 2 of this Agreement.
"Deposit Period": as defined in Section 1 of the Deposit Agreement.
"Dispute": as defined in Section 2 of the Deposit Agreement.
"Indemnification Obligations": any and all obligations of the Pledgor to
indemnify, defend and hold harmless the Secured Party and its subsidiaries and
their respective officers, directors, employees, agents, representatives,
successors and permitted assigns (collectively, the "Purchaser Indemnities")
from and against any and all actions, proceedings, costs, damages, claims,
liabilities (absolute and contingent), fines, penalties, payments, costs and
expenses (including reasonable counsel fees, interest, penalties and
disbursements) (collectively, "Losses"), that may be asserted against or
suffered or incurred by the Purchaser Indemnities arising out of or relating to
any breach of any representation, warranty, covenant or agreement by the Pledgor
made in the Purchase Agreement or any of the Ancillary Agreements, all as forth
in Section 7.2 of the Purchase Agreement.
"New York UCC": the Uniform Commercial Code as in effect from time to time
in the State of New York.
"Notice": as defined in Section 2 of the Deposit Agreement.
"Permitted Investments": as defined in Section 6 of this Agreement.
"Secured Obligations": all Indemnification Obligations and all present and
future obligations of the Pledgor to the Secured Party under this Agreement.
"Termination Date": the date of termination of the Deposit Agreement.
"Transaction Agreements": the Purchase Agreement, the Ancillary Agreements,
and the Deposit Agreement.
1.2 Other Definitional Provisions. The words "hereof", "herein",
"hereto", and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. Section references are to this Agreement unless
otherwise specified.
2. Pledge and Assignment. The Pledgor hereby pledges, assigns and
transfers to the Secured Party, and grants to the Secured Party a security
interest in, all of the following property now owned or at any time hereafter
acquired by the Pledgor or in which the Pledgor now has or
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at any time in the future may acquire any right, title or interest (the
"Collateral"), as collateral security for the prompt and complete payment and
performance when due at any time of the Secured Obligations:
(a) the Account, all funds held therein and all certificates and
instruments, if any, from time to time representing or evidencing the Account;
(b) all Permitted Investments (as hereinafter defined) from time to
time, and all certificates and instruments, if any, from time to time
representing or evidencing the Permitted Investments;
(c) all interest, dividends, cash, securities, investment property,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the then
existing Collateral;
(d) all notes, certificates of deposit, deposit accounts, checks
and other instruments and documents from time to time hereafter delivered to or
otherwise possessed by the Secured Party for or on behalf of the Pledgor in
substitution for or in addition to any or all of the then existing Collateral;
and
(e) all proceeds of any and all of the foregoing Collateral.
3. Security for Secured Obligations. This Agreement secures the payment
of all Secured Obligations of the Pledgor now or hereafter existing. Without
limiting the generality of the foregoing, this Agreement secures the payment of
all amounts which constitute part of the Secured Obligations and would be owed
by the Pledgor to the Secured Party under the Purchase Agreement but for the
fact that they are unenforceable or not allowable due to of the existence of a
bankruptcy, reorganization or similar proceeding involving the Pledgor.
4. Collateral Distributions: Delivery of Certificates and Instruments.
The parties hereto agree that any distributions of Collateral from the Account
prior to the Termination Date shall be made in strict accordance with the terms
and provisions of the Deposit Agreement. All certificates or instruments, if
any, representing or evidencing the Collateral shall be delivered to and held by
or on behalf of the Secured Party and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Secured
Party. The Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing any or all of the
Collateral for certificates or instruments of smaller or larger denominations.
5. Maintaining the Account. For the duration of the Deposit Period and
for so long thereafter as the Secured Party has any time issued any Notice of
any Claim or potential Claim to the Deposit Agent for which the Secured Party is
seeking indemnification from the Pledgor pursuant to Section 7.2 of the Purchase
Agreement and such Claim or potential Claim shall remain unpaid or unresolved:
(a) The Pledgor will maintain the Account with the Deposit Agent.
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(b) The Pledgor shall not withdraw or transfer any amount from the
Account or close the Account, or make any efforts to cause the Deposit Agent to
do any of the foregoing, except pursuant to Section 17 hereof and Section 2 and
Section 3 of the Deposit Agreement.
(c) The Account shall be subject to such applicable laws and
regulations of the Board of Governors of the Federal Reserve System and of any
other appropriate banking or governmental authority, as may now or hereafter be
in effect.
6. Investing of Amounts in the Account. The parties agree that they may
from time to time request the Deposit Agent, pursuant to written instructions
jointly executed by each of them, and subject to Section 17 hereof and Section 2
and Section 3 of the Deposit Agreement, to (a) invest amounts on deposit in the
Account in such investments as the parties hereto may select and approve
pursuant to joint written instructions, and (b) invest interest income and other
earnings paid on such investments referred to in clause (a) above and reinvest
other proceeds of any such investments which may mature or be sold, in each case
in such investments as the parties hereto may jointly select and approve (the
investments referred to in clauses (a) and (b) above being collectively referred
to herein as "Permitted Investments"). All interest income, earnings and
proceeds of such Permitted Investments shall be deposited and held in the
Account. No Permitted Investments shall be made or permitted unless and until
the Secured Party in its sole discretion is satisfied that it has obtained a
first priority security interest in and lien on the Permitted Investments and
any other Collateral affected thereby.
7. Representations and Warranties. The Pledgor represents and warrants
as follows:
(a) Except for the pledge and security interest granted to the
Secured Party pursuant to this Agreement and the other Liens permitted to exist
on the Collateral by the Purchase Agreement, the Pledgor is the legal and
beneficial owner of any and all of the Collateral free and clear of any and all
Liens, claims, and other encumbrances.
(b) The pledge and assignment of and the granting of the security
interest on the Collateral pursuant to this Agreement and the execution,
delivery and performance by the Pledgor, Secured Party and Deposit Agent of the
Deposit Agreement will, upon completion of the filings of UCC financing
statements, create a valid and perfected first priority security interest in all
of the Collateral in favor of the Secured Party, as collateral security for the
Secured Obligations, enforceable in accordance with the terms hereof against all
creditors and other claimants of the Pledgor.
(c) The Pledgor's (i) jurisdiction of organization is the State of
Delaware, (ii) exact legal name is "Argenesis Corporation", and (iii) taxpayer
identification number is [insert number]. The location of the Pledgor's chief
executive office or sole place of business is San Francisco, California.
(d) No consent of any other person or entity and no authorization,
approval, or other action by, and no notice to or filing with, any Governmental
Entity is required (i) for the pledge and assignment by the Pledgor of the
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor, (ii) for the perfection or
maintenance of the pledge and security interest created hereby (including the
first priority nature
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of such security interest) or (iii) for the exercise by the Secured Party of its
rights and remedies hereunder.
(e) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
(f) The Pledgor will benefit directly and indirectly from its
execution and delivery of this Agreement and from the Deposit Agreement.
(g) The representations and warranties set forth in Article II of
the Purchase Agreement as they relate to the Pledgor, each of which is hereby
incorporated herein by reference, are true and correct, and the Secured Party is
and shall be entitled to rely on each of them as if they were fully set forth
herein.
8. Covenants.
(a) The Pledgor agrees that it will (i) advise the Secured Party
immediately if any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any instrument, document or
certificated security, such instrument, document, or certificated security shall
be immediately delivered to the Secured Party, duly indorsed in a manner
satisfactory to the Secured Party, to be held as Collateral pursuant to this
Agreement; (ii) pay and discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all taxes, assessments and
governmental charges imposed upon any of the Collateral or in respect of income
or profits therefrom; (iii) comply in good faith with any and all obligations
incurred by it pursuant to the Deposit Agreement; (iv) advise the Secured Party
immediately, in reasonable detail of any Lien (other than security interests
created hereby or Liens permitted under the Purchase Agreement) on any of the
Collateral which would adversely affect the ability of the Secured Party to
exercise any of its remedies hereunder; and (v) advise the Secured Party
immediately of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
(b) The Pledgor agrees that it will not (i) sell, assign (by
operation of law or otherwise), transfer, or otherwise dispose of, or grant any
option with respect to, any of the Collateral, (ii) create or permit to exist
any Lien upon or with respect to any of the Collateral, except for the pledge
and security interest under this Agreement, or (iii) except upon 15 days' prior
written notice to the Secured Party and delivery to the Secured Party of all
additional executed financing statements and other documents reasonably
requested by the Secured Party to maintain the validity, perfection and priority
of the security interests provided for herein change its jurisdiction of
organization, exact legal name, taxpayer identification number, or the location
of its chief executive office or sole place of business from that referred to in
Section 7.
(c) The covenants set forth in Article IV of the Purchase Agreement
as they relate to or are applicable to the Pledgor are hereby incorporated
herein by reference, and the Pledgor shall take, or shall refrain from taking,
as the case may be, each action that is necessary to be taken or not taken, as
the case may be, to comply with any and all such covenants therein applicable to
it.
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9. Further Assurances. The Pledgor shall maintain the pledge and
security interest created by this Agreement as a perfected security interest
having first priority and shall defend such security interest against the claims
and demands of all Persons whomsoever. The Pledgor agrees that at any time and
from time to time, at its sole expense, it will promptly execute, deliver and
have recorded, all further instruments and documents, and take all further
actions that may be necessary or desirable, or that the Secured Party may
request to perfect and protect any pledge or security interest granted or
purported to be granted hereby or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Collateral and to
obtain the full benefits of this Agreement and of the rights and powers herein
granted, including, including, without limitation, (a) filing any financing
statements under the Uniform Commercial Code (or other similar laws) in effect
from time to time in any jurisdiction as deemed necessary by the Secured Party
with respect to the security interests created hereby; (b) taking any actions
requested by the Secured Party to enable the Secured Party to obtain
"possession" or "control" of any of the Collateral (within the meaning of the
applicable Uniform Commercial Code) with respect thereto; and (c) taking all
actions required by the Uniform Commercial Code or other law, as applicable in
any relevant Uniform Commercial Code jurisdiction, or by other law as
applicable.
10. Attorney-in-Fact and Authorizations. The Pledgor hereby irrevocably
constitutes and appoints the Secured Party as the Pledgor's true and lawful
attorney-in-fact, with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in its own name, from
time to time in the Secured Party's discretion, to take any and all appropriate
action and to execute any and all documents and instruments which the Secured
Party may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, the power and right, on behalf of the
Pledgor, to receive or take possession of, indorse and collect any checks,
drafts, notes, acceptances, or other instruments made payable to the Pledgor
representing any interest payment, dividend or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same. The
Pledgor authorizes the Secured Party at any time and from time to time to file
or record financing statements and amendments thereto and other filing or
recording documents or instruments with respect to any of the Collateral without
the signature of the Pledgor in such form and in such offices as the Secured
Party determines appropriate to perfect the security interests under this
Agreement. A photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.
11. Performance by the Secured Party. If the Pledgor fails to perform any
agreement contained herein, the Secured Party may itself perform, or cause
performance of, such agreement, and the costs and expenses of the Secured Party
incurred in connection therewith shall be payable by the Pledgor under Section
14.
12. The Secured Party's Duties. The powers conferred on the Secured Party
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the custody,
safekeeping and physical preservation of any Collateral in its possession, under
Section 9-207 of the New York UCC or otherwise, and accounting for moneys
actually received by it hereunder, the Secured Party shall have no duty as to
any of the Collateral, or to ascertain or take any action with respect respect
to any matter relating to the Collateral, whether or not the Secured Party or
the Deposit Agent has or is deemed
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to have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral. The Secured Party shall be deemed to have exercised reasonable care
in the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which the Secured
Party accords its own property.
13. Indemnification Claims. The parties hereto agree that the Purchase
Agreement and the Deposit Agreement shall govern the provision of any Notice and
the disposition of any Claim in connection with the Indemnification Obligations.
14. Costs and Expenses. The Pledgor will upon demand pay to the Secured
Party the amount of any and all reasonable costs and expenses, including the
reasonable fees and expenses of counsel and of any experts, advisors and agents,
which the Secured Party may incur in connection with (a) the perfection of the
security interests and liens created hereby in connection with the Account or
Permitted Investments, (b) the collection of the Secured Obligations, (c) the
exercise or enforcement of any of the rights or remedies of the Secured Party
hereunder or (d) the failure by the Pledgor to perform or observe any of the
provisions of this Agreement or of the Deposit Agreement. The Pledgor agrees to
pay, and to hold the Secured Party harmless from, any and all taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement, and any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement. The expenses of the Secured Party incurred in
connection with actions undertaken as provided in this Section 14 shall be
payable by the Pledgor to the Secured Party upon demand. The agreements in this
Section 14 shall survive repayment of the Secured Obligations and all other
amounts payable under the Purchase Agreement and the Deposit Agreement.
15. Security Interest Absolute. The obligations of the Pledgor under this
Agreement are independent of the Secured Obligations, and a separate action or
actions may be brought and prosecuted against the Pledgor to enforce this
Agreement, irrespective of whether any action is brought against the Pledgor
under the Purchase Agreement or Deposit Agreement. All rights of the Secured
Party and security interests hereunder, and all obligations of the Pledgor
hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any Transaction
Agreement or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other amendment
or waiver of or any consent to any departure from any Transaction Agreement,
including, without limitation, any increase in the Secured Obligations;
(c) any taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from the Deposit Agreement for all or any of the Secured Obligations;
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(d) any manner of application of collateral, or proceeds thereof,
to all or any of the Secured Obligations, or any manner of sale or other
disposition of any Collateral for payment of all or any of the Secured
Obligations;
(e) any change, restructuring or termination of the corporate
structure or existence of the Pledgor or any of its subsidiaries; or
(f) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor under any of the
Transaction Agreements.
16. Reservation of Rights. The Secured Party expressly reserves with
respect to the Collateral, and in addition to all other rights and remedies
provided for herein or in the Deposit Agreement or otherwise available to it,
all of the rights and remedies of a secured party on default under the New York
UCC (whether or not the New York UCC applies to the affected Collateral).
17. Termination and Release. If upon expiration of the Deposit Period or
thereafter no Dispute exists and is pending, and no Notice with respect to any
Claim has been made, given or provided, and the Secured Obligations shall have
been paid in full, the Secured Party shall release the Collateral from the Liens
created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Pledgor and the Secured
Party hereunder shall terminate, all without delivery or performance of any act
by any party, and all rights to the Collateral shall revert to the Pledgor. At
the request and sole expense of the Pledgor following any such termination, the
Secured Party shall deliver any Collateral held by it hereunder, and execute and
deliver to the Pledgor any such documents as the Pledgor shall reasonably
request to evidence such termination.
18. Amendments. etc. None of the terms or provisions of this Agreement
may be waived, amended, supplemented, or otherwise modified except by a written
instrument executed by the Pledgor and the Secured Party, provided that any
provision of this Agreement may be waived by the Secured Party in a written
instrument executed by the Secured Party, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
19. Notices. All notices and other communications provided for hereunder
shall be in writing and mailed, faxed, or delivered to the Pledgor or the
Secured Party, as applicable, as provided in Section 9.2 of the Purchase
Agreement.
20. Continuing Security Interest; Assignments. This Agreement shall
create a continuing pledge and security interest in the Collateral and shall (a)
remain in full force and effect until the later of(x) the payment in full of the
Secured Obligations and all other amounts payable under this Agreement and (y)
the expiration or termination of the Deposit Agreement, (b) be binding upon the
Pledgor, its successors and assigns, and (c) inure to the benefit of, and be
enforceable by, the Secured Party and its respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), the
Secured Party may assign or otherwise transfer all or any portion of its rights
and obligations under this Agreement to any other person
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or entity, and such other person or entity shall thereupon become vested with
all the benefits in respect thereof granted to the Secured Party herein.
21. Governing Law, Terms. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of New York,
without regard to the principles of conflicts of laws thereof, except to the
extent that perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of New York. Unless otherwise defined herein
or in the Purchase Agreement, terms defined in Article 9 of the New York UCC are
used herein as therein defined.
22. Integration. This written Agreement represents the final agreement of
the parties hereto with respect to the subject matter hereof, and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no promises, undertakings, representations or
warranties by the Secured Party relative to the subject matter hereof not
expressly set forth or referred to herein. There are no unwritten oral
agreements among the parties.
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IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
PLEDGOR:
ARGENESIS CORPORATION
By: /s/ [ILLEGIBLE]
----------------------------------------------
Name:
Title:
SECURED PARTY:
LINEDATA SERVICES
By: /s/ ANVARALY JIVA
----------------------------------------------
Name: ANVARALY JIVA
Title: President du Directoire
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ACKNOWLEDGMENT AND CONSENT
The undersigned Deposit Agent hereby acknowledges notice and receipt of,
and consents to the terms and provisions of, the foregoing Pledge and Assignment
Agreement dated as of March 14, 2001 (the "Pledge Agreement", the terms defined
therein being used herein as therein defined) between Argenesis Corporation
(herein, together with its successors and assigns, the "Pledgor") and Linedata
Services (herein, together with its successors and assigns, the "Secured Party")
whereby the Pledgor has granted to the Secured Party a security interest in and
lien on the Account and other pledged Collateral described therein and the
Pledge Agreement contemplates that the Account will be maintained and held by
the Deposit Agent as collateral agent and bailee for the Secured party.
The Deposit Agent hereby acknowledges and consents to the Secured Party
that (a) the Deposit Agent has established and maintains the Account in the name
of the Deposit Agent as collateral agent and bailee for the Secured Party; (b)
the account number for such Account is 0000000, (c) the Deposit Agent has
received by wire transfer the amount of US$2,900,000.00 and placed such funds
into the Account, (d) the description, including the amount, of the Account set
forth under the second Recital of the Pledge Agreement is correct, (e) the
Deposit Agent has no pledge or security interest in or lien on the Account has
received no notice from any third party of any claim or other pledge or security
interest in or lien on or assignment of the Account, (f) the Deposit Account,
Escrow and Control Agreement dated as of the date hereof (the "Deposit
Agreement") is the only agreement pertaining to the Account to which the Deposit
Agent is a party, and (g) the Secured Party shall be entitled to exercise any
and all rights and remedies of a secured party under the Uniform Commercial Code
of any applicable jurisdiction in respect of the Account.
In addition to the foregoing, the undersigned Deposit Agent hereby agrees
with the Secured Party that:
(a) The Account is and shall be subject to the terms and provisions
of the Deposit Agreement. The Deposit Agent shall make all payments and
distributions from the Account pursuant to the Deposit Agreement, irrespective
of and without any deduction, set-off, bankers' lien, recoupment, or any other
right, defense, or counterclaim asserted in favor of the Deposit Agent or any
other party, and shall not otherwise seek to recover from the Secured Party for
any reason any such payment or distribution once made.
(b) The Deposit shall be invested pursuant to the joint written
instructions of the Pledgor and Secured Party. All interest income and other
earnings from the Deposit shall be deposited or invested into the Account, and
in no event shall any cash, securities, investments so deposited or invested in
the Account be paid, distributed or released to the Pledgor except as provided
in the Deposit Agreement.
(c) In the event that the Deposit Agent subsequently obtains by
agreement, operation of law or otherwise a pledge or security interest in or
other lien on the Account, such pledge, security interest or lien shall be
subordinate to the pledge or security interest of the Secured Party.
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(d) if the Deposit Agent receives notice of any other pledge,
security interest, lien, encumbrance or adverse claim against the Account or any
cash, securities, investments, or other financial assets held in the Account,
the Deposit Agent shall immediately notify the Secured Party and the Pledgor
thereof.
(e) The Deposit Agent shall comply in all respects with the Secured
Party's exercise of its rights and remedies under the Uniform Commercial Code of
any applicable jurisdiction until the pledge and security interest of the
Secured Party with respect to the Account have been terminated pursuant to the
terms of the Pledge Agreement and an authorized representative of the Secured
Party has notified the Deposit Agent of such termination in writing.
This Acknowledgment and Consent shall be binding upon the undersigned
Deposit Agent and its successors and assigns, and shall inure to the benefit of
the Secured Party and its respective successors, transferees and assigns. This
Acknowledgment and Consent shall be governed by and construed in accordance with
the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned has duly executed this Acknowledgment
and Consent as of the date set opposite its name below.
Dated as of March 15, 2001 ZIONS FIRST NATIONAL BANK
By:
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Name:
Title:
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