EXHIBIT B-10(h)(13)
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made this
13th day of June, 2000, by and between GOLD XXXX INC., a
Georgia corporation (referred to as the "Pledgor") and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH as collateral agent
(the "Collateral Agent") for the Secured Parties, as
hereinafter defined (such parties, along with their
successors and assigns, collectively referred to as the
"Secured Parties").
RECITALS
WHEREAS, Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, as Agent, and the
Pledgor have entered into a Credit Agreement dated as of
August 4, 1998, (said agreement, as it may hereafter be
amended, restated or otherwise modified from time to time, the
"Credit Agreement") pursuant to which Pledgor executed and
delivered its Notes (together with any notes issued in
exchange or substitution therefor, the "Credit Notes"); and
WHEREAS, Pledgor has entered into that certain Master
Loan Agreement, dated as of August 1, 1996, with CoBank, ACB,
as amended December 23, 1997, that certain multiple Advance
Term Loan Supplement dated September 1, 1997 with CoBank, and
that certain Uncommitted Revolving Credit Supplement dated
December 23, 1997 with CoBank, (such agreements as they may
hereafter be amended, restated or otherwise modified from time
to time, the "CoBank Agreements") pursuant to which Pledgor
has issued its Notes (together with any notes issued in
exchange or substitution therefor, the "CoBank Notes"); and
WHEREAS, Pledgor has entered into that certain Note
Purchase and Private Shelf Agreement dated February 11, 1997,
with The Prudential Insurance Company of America, and those
certain Note Agreements dated November 4, 1988 and June 3,
1991 with Prudential (such agreements as they may hereafter be
amended, restated or otherwise modified from time to time, the
"Prudential Agreements"), pursuant to which the Company has
issued its Notes to Prudential (together with any notes issued
in exchange or substitution therefor, the "Prudential Notes");
and
WHEREAS, Pledgor has entered into that certain Note
Agreement dated November 4, 1988 with Pruco Life Insurance
Company (such agreement as it may hereafter be amended,
restated or otherwise modified from time to time, the "Pruco
Agreement"), pursuant to which the Company has issued its
Notes to Pruco (together with any notes issued in exchange or
substitution therefor, the "Pruco Notes"); and
WHEREAS, to secure the repayment of the Obligations (as
hereinafter defined), Pledgor has agreed to grant to the
Collateral Agent, for the benefit of the Collateral Agent and
the Secured Parties, a first priority lien on and security
interest in the Pledged Collateral (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and
sufficiency of which, the Pledgor hereby acknowledges, the
Pledgor agrees as follows:
SECTION 1. The Pledge. The Pledgor hereby pledges,
hypothecates, assigns, transfers, sets over and delivers unto
the Collateral Agent, and grants to the Collateral Agent for
the benefit of Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch; each bank and
other lending institution that is or may from time to time
become a "Lender" as that term is defined in the Credit
Agreement; CoBank, ACB; The Prudential Insurance Company of
America; Pruco Life Insurance Company; Wachovia Bank, N.A.;
SunTrust Bank, Atlanta; Xxxxxx Trust and Savings Bank; Rabo
Capital Services, Inc.; SunTrust Equitable Securities
Corporation; and the successors and assigns of each of the
foregoing (hereinafter, the "Secured Parties"), a security
interest in, all of the Pledgor's right, title and interest
in, to and under the following (collectively, the "Pledged
Collateral"): (a) the common stock, shares, equity interest
and other securities (collectively, "Securities") of each
Person (each an "Issuer") described in Schedule 1 attached
hereto; (b) any additional Securities of any of such Issuers
as may from time to time be issued to the Pledgor or otherwise
acquired by the Pledgor; (c) any additional Securities of any
Issuer as may hereafter at any time be delivered to the
Collateral Agent by or on behalf of the Pledgor; (d) any cash
or additional Securities or other property at any time and
from time to time receivable or otherwise distributable in
respect of, in exchange for, or in substitution of, any of the
property referred to in any of the immediately preceding
clauses (a) through (c); and (e) any and all products and
proceeds of any of the foregoing, together with and all other
rights, titles, interests, powers, privileges and preferences
pertaining to said property.
SECTION 2. Obligations Secured. This Agreement is made,
and the security interest created hereby is granted to the
Collateral Agent, to secure the prompt performance and payment
in full of the following (collectively, the "Secured
Obligations"): (a) all of Pledgor's obligations under the
Credit Agreement, the Credit Notes, the CoBank Agreement, the
CoBank Notes, the Prudential Agreement, the Prudential Notes,
the Pruco Agreement, and the Pruco Notes; (b) all other
obligations of the Pledgor under this Agreement, including
without limitation all compensation and indemnification
amounts and fees payable pursuant to this Agreement; (c) any
reasonable costs or expenses incurred by the Collateral Agent
or Collateral Agent's counsel in connection with the
realization of the security for which this Agreement provides,
including, without limitation, any reasonable costs or
expenses of any proceedings to which this Agreement may give
rise and (d) all other indebtedness, liabilities, obligations,
covenants and duties of the Pledgor owing to the Secured
Parties of every kind, nature and description, whether direct
or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, and
whether or not evidenced by any note.
SECTION 3. Representations and Warranties. The Pledgor
hereby represents and warrants to the Collateral Agent as
follows:
(a) Validly Issued, etc. All of the Securities of each
Issuer have been validly issued and are fully paid and
nonassessable.
(b) Title and Liens. The Pledgor is, and will at all
times continue to be, the legal and beneficial owner of the
Pledged Collateral and none of the Pledged Collateral is
subject to any Lien.
(c) Authority, etc. The Pledgor (i) has the power and
authority to pledge the Collateral in the manner hereby done
or contemplated and (ii) will defend its title or interest
thereto or therein against any and all Liens (other than the
Lien created by this Agreement), however arising, of all
persons.
(d) No Approval. No consent or approval of any
Governmental Authority or any securities exchange was or is
necessary to the validity of the pledge effected hereby.
SECTION 4. Covenants. The Pledgor hereby
unconditionally covenants and agrees that the Pledgor will not
create, assume, incur or permit or suffer to exist or to be
created, assumed or incurred, any Lien on any of the Pledged
Collateral (or any interest therein), and will not, without
the prior written consent of the Collateral Agent, sell,
lease, assign, transfer or otherwise dispose of all or any
portion of the Pledged Collateral (or any interest therein).
SECTION 5. Additional Shares. The Pledgor agrees that,
until this Agreement has terminated in accordance with its
terms, any additional Securities of an Issuer at any time
issued to the Pledgor or otherwise acquired by the Pledgor
shall be promptly delivered or otherwise transferred to the
Collateral Agent as additional Pledged Collateral and shall be
subject to the Lien of, and the terms and conditions of, this
Agreement.
SECTION 6. Registration in Nominee Name, Denominations.
The Collateral Agent shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own
name as Collateral Agent, the name of its nominee (as
Collateral Agent or as sub-agent) or the name of the Pledgor,
endorsed or assigned in blank or in favor of the Collateral
Agent. The Pledgor will promptly give to the Collateral Agent
copies of any notices or other communications received by it
with respect to Pledged Securities registered in the name of
the Pledgor. The Collateral Agent shall at all times have the
right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger numbers of
shares for any purpose consistent with this Agreement.
SECTION 7. Voting Rights; Dividends, etc. So long as
no Event of Default shall have occurred and be continuing:
(a) the Pledgor shall be entitled to exercise any and
all voting and/or consensual rights and powers accruing to an
owner of the Pledged Collateral or any part thereof for any
purpose not inconsistent with the terms and conditions of this
Agreement or any agreement giving rise to or otherwise
relating to any of the Secured Obligations; provided, however,
that the Pledgor shall not exercise, or refrain from
exercising, any such right or power if any such action would
have a materially adverse effect on the value of such Pledged
Collateral in the judgment of the Collateral Agent;
(b) the Pledgor shall be entitled to retain and use any
and all cash dividends paid on the Pledged Collateral, but any
and all stock and/or liquidating dividends, other
distributions in property, return of capital or other
distributions made on or in respect of Pledged Securities,
whether resulting from a subdivision, combination or
reclassification of outstanding Securities of an Issuer which
are pledged hereunder or received in exchange for Pledged
Collateral or any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets or on
the liquidation, whether voluntary or involuntary, of an
Issuer, or otherwise, shall be and become part of the Pledged
Collateral pledged hereunder and, if received by the Pledgor,
shall forthwith be delivered to the Collateral Agent to be
held as collateral subject to the terms and conditions of this
Agreement.
(c) Upon the occurrence and during the continuance of an
Event of Default, all rights of the Pledgor to exercise the
voting and/or consensual rights and powers which Pledgor is
entitled to exercise pursuant to subsection (a ) above and/or
to receive the dividends which Pledgor is authorized to
receive and retain pursuant to subsection (b) above shall
cease, and all such rights thereupon shall become immediately
vested in the Collateral Agent, which shall have, to the
extent permitted by law, the sole and exclusive right and
authority to exercise such voting and/or consensual rights and
powers which the Pledgor shall otherwise be entitled to
exercise pursuant to subsection (a) above and/or to receive
and retain the dividends which the Pledgor shall otherwise be
authorized to retain pursuant to subsection (b) above. Any
and all money and other property paid over to or received by
the Collateral Agent pursuant to the provisions of this
subsection (b) shall be retained by the Collateral Agent as
additional collateral hereunder and shall be applied in
accordance with the provisions of Section 10. If the Pledgor
shall receive any dividends or other property which it is not
entitled to receive under this Section, the Pledgor shall hold
the same in trust for the Collateral Agent, without
commingling the same with other funds or property of or held
by the Pledgor, and shall promptly deliver the same to the
Collateral Agent upon receipt by the Pledgor in the identical
form received, together with any necessary endorsements.
SECTION 8. Event of Default Defined. For purposes of
this Agreement, "Event of Default" shall mean:
(a) Pledgor shall fail to observe or perform any
covenant or agreement contained in Sections 4, 5, or 7(c)
hereof;
(b) Pledgor shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than
those covered by the immediately preceding clause (a)) for a
period of thirty days after written notice thereof has been
given to Pledgor by Collateral Agent; and
(c) an Event of Default under and as defined in the
Credit Agreement shall occur and be continuing.
SECTION 9. Remedies upon Default. (a) If an Event of
Default shall have occurred, the Collateral Agent may exercise
any and all the rights and remedies of a secured party under
the Uniform Commercial Code as in effect in any applicable
jurisdiction (the "Code") and may otherwise sell, assign,
transfer, endorse and deliver the whole or, from time to time,
any part of the Pledged Collateral at a public or private sale
or on any securities exchange, for cash, upon credit or for
other property, for immediate or future delivery, and for such
price or prices and on such terms as the Collateral Agent in
its discretion shall deem appropriate. The Collateral Agent
shall be authorized at any sale (if it deems it advisable to
do so) to restrict the prospective bidders or purchasers to
Persons who will represent and agree that they are purchasing
the Pledged Collateral for their own account in compliance
with the Securities Act and upon consummation of any such sale
the Collateral Agent shall have the right to assign, transfer,
endorse and deliver to the purchaser or purchasers thereof the
Pledged Collateral so sold. Each purchaser at any sale of
Pledged Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of the
Pledgor, and the Pledgor hereby waives (to the fullest extent
permitted by Applicable Law) all rights of redemption, stay
and/or appraisal which the Pledgor now has or may at any time
in the future have under any Applicable Law now existing or
hereafter enacted. The Pledgor agrees that, to the extent
notice of sale shall be required by Applicable Law, at least
ten days' prior written notice to the Pledgor of the time and
place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification,
but notice given in any other reasonable manner or at any
other reasonable time shall constitute reasonable
notification. Such notice, in case of public sale, shall
state the time and place for such sale, and, in the case of
sale on a securities exchange, shall state the exchange on
which such sale is to be made and the day on which the Pledged
Collateral, or portion thereof, will first be offered for sale
at such exchange. Any such public sale shall be held at such
time or times within ordinary business hours and at such place
or places as the Collateral Agent may fix and shall state in
the notice or publication (if any) of such sale. At any such
sale, the Pledged Collateral, or portion thereof to be sold,
may be sold in one lot as an entirety or in separate parcels,
as the Collateral Agent may determine in its sole and absolute
discretion. The Collateral Agent shall not be obligated to
make any sale of the Pledged Collateral if it shall determine
not to do so regardless of the fact that notice of sale of the
Pledged Collateral may have been given. The Collateral Agent
may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for sale, and
such sale may, without further notice, be made at the time and
place to which the same was so adjourned. In case the sale of
all or any part of the Pledged Collateral is made on credit or
for future delivery, the Pledged Collateral so sold may be
retained by the Collateral Agent until the sale price is paid
by the purchaser or purchasers thereof, but the Collateral
Agent shall not incur any liability to the Pledgor in case any
such purchaser or purchasers shall fail to take up and pay for
the Pledged Collateral so sold and, in case of any such
failure, such Pledged Collateral may be sold again upon like
notice. At any public sale made pursuant to this Agreement,
the Collateral Agent, to the extent permitted by Applicable
Law, may bid for or purchase, free from any right of
redemption, stay and/or appraisal on the part of the Pledgor
(all said rights being also hereby waived and released to the
extent permitted by Applicable Law), any part of or all the
Pledged Collateral offered for sale and may make payment on
account thereof by using any claim then due and payable to the
Collateral Agent from the Pledgor as a credit against the
purchase price, and the Collateral Agent may, upon compliance
with the terms of sale and to the extent permitted by
Applicable Law, hold, retain and dispose of such property
without further accountability to the Pledgor therefor. For
purposes hereof, a written agreement to purchase all or any
part of the Pledged Collateral shall be treated as a sale
thereof; the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and the Pledgor shall not be
entitled to the return of any Pledged Collateral subject
thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of
Default may have been remedied or the Secured Obligations may
have been paid in full as herein provided. The Pledgor hereby
waives any right to require any marshaling of assets and any
similar right.
(b) In addition to exercising the power of sale herein
conferred upon it, the Collateral Agent shall also have the
option to proceed by suit or suits at law or in equity to
foreclose this Agreement and sell the Pledged Collateral or
any portion thereof pursuant to judgment or decree of a court
or courts having competent jurisdiction.
(c) The rights and remedies of the Collateral Agent
under this Agreement are cumulative and not exclusive of any
rights or remedies which it would otherwise have.
SECTION 10. Application of Proceeds of Sale and Cash.
The proceeds of any sale of the whole or any part of the
Pledged Collateral, together with any other moneys held by the
Collateral Agent under the provisions of this Agreement, shall
be applied by the Collateral Agent in the following order:
First: to the payment of all costs and expenses incurred
in connection with such sale or other realization, including
reasonable attorneys' fees incurred if the Collateral Agent
endeavored to collect the Secured Obligations by or through an
attorney at law;
Second: to the payment of the principal and interest due
upon any of the Secured Obligations, in any order which the
Collateral Agent may elect; and
Third: the balance (if any) of such proceeds shall be
paid to the Pledgor or to whomsoever may be legally entitled
thereto.
The Pledgor shall remain liable and will pay, on demand, any
deficiency remaining in respect of the Secured Obligations.
SECTION 11. Collateral Agent Appointed Attorney-in-Fact.
The Pledgor hereby constitutes and appoints the Collateral
Agent as the attorney-in-fact of the Pledgor with full power
of substitution either in the Collateral Agent's name or in
the name of the Pledgor to do any of the following: (a) to
perform any obligation of the Pledgor hereunder in the
Pledgor's name or otherwise; (b) to ask for, demand, xxx for,
collect, receive, receipt and give acquittance for any and all
moneys due or to become due under and by virtue of any Pledged
Collateral; (c) to prepare, execute, file, record or deliver
notices, assignments, financing statements, continuation
statements, applications for registration or like papers to
perfect, preserve or release the Collateral Agent's security
interest in the Pledged Collateral or any of the documents,
instruments, certificates and agreements described in Section
13(b); (d) to verify facts concerning the Pledged Collateral
in its own name or a fictitious name; (e) to endorse checks,
drafts, orders and other instruments for the payment of money
payable to the Pledgor, representing any interest or dividend
or other distribution payable in respect of the Pledged
Collateral or any part thereof or on account thereof and to
give full discharge for the same; (f) to exercise all rights,
powers and remedies which the Pledgor would have, but for this
Agreement, under the Pledged Collateral; and (g) to carry out
the provisions of this Agreement and to take any action and
execute any instrument which the Collateral Agent may deem
necessary or advisable to accomplish the purposes hereof, and
to do all acts and things and execute all documents in the
name of the Pledgor or otherwise, deemed by the Collateral
Agent as necessary, proper and convenient in connection with
the preservation, perfection or enforcement of its rights
hereunder. Nothing herein contained shall be construed as
requiring or obligating the Collateral Agent to make any
commitment or to make any inquiry as to the nature or
sufficiency of any payment received by it, or to present or
file any claim or notice, or to take any action with respect
to the Pledged Collateral or any part thereof or the moneys
due or to become due in respect thereof or any property
covered thereby, and no action taken by the Collateral Agent
or omitted to be taken with respect to the Pledged Collateral
or any part thereof shall give rise to any defense,
counterclaim or offset in favor of the Pledgor or to any claim
or action against the Collateral Agent. The power or attorney
granted herein is irrevocable and coupled with an interest.
SECTION 12. Reimbursement of Collateral Agent. The
Pledgor agrees to pay upon demand to the Collateral Agent the
amount of any and all reasonable expenses, including the
reasonable fees disbursements and other charges of its counsel
and of any experts or agents, and its fully allocated internal
costs, that the Collateral Agent may incur in connection with
(i) the administration of this Agreement, (ii) the custody or
preservation of, or any sale of, collection from, or other
realization upon, any of the Pledged Securities, (iii) the
exercise or enforcement of any of the rights of the Collateral
Agent hereunder, or (iv) the failure by the Pledgor to perform
or observe any of the provisions hereof. Any such amounts
payable as provided hereunder shall be additional obligations
secured hereby and by the other Security Documents.
SECTION 13. Further Assurances. The Pledgor shall, at
its sole cost and expense, take all action that may be
necessary or desirable in the Collateral Agent's sole
discretion, so as at all times to maintain the validity,
perfection, enforceability and priority of the Collateral
Agent's security interest in the Pledged Collateral, or to
enable the Collateral Agent to exercise or enforce its rights
hereunder, including without limitation (a) delivering to the
Collateral Agent, endorsed or accompanied by such instruments
of assignment as the Collateral Agent may specify, any and all
chattel paper, instruments, letters of credit and all other
advices of guaranty and documents evidencing or forming a part
of the Pledged Collateral and (b) executing and delivering
financing statements, pledges, designations, notices and
assignments, in each case in form and substance satisfactory
to the Collateral Agent, relating to the creation, validity,
perfection, priority or continuation of the security interest
granted hereunder. The Pledgor agrees to take, and authorizes
the Collateral Agent to take on the Pledgor's behalf, any or
all of the following actions with respect to any Pledged
Collateral as the Collateral Agent shall deem necessary to
perfect the security interest and pledge created hereby or to
enable the Collateral Agent to enforce its rights and remedies
hereunder: (i) to register in the name of the Collateral Agent
any Pledged Collateral in certificated or uncertificated form;
(ii) to endorse in the name of the Collateral Agent any
Pledged Collateral issued in certificated form; and (iii) by
book entry or otherwise, identify as belonging to the
Collateral Agent a quantity of securities that constitutes all
or part of the Pledged Collateral registered in the name of
the Collateral Agent. Notwithstanding the foregoing the
Pledgor agrees that Pledged Collateral which is not in
certificated form or is otherwise in book-entry form shall be
held for the account of the Collateral Agent. The Pledgor
hereby authorizes the Collateral Agent to execute and file in
all necessary and appropriate jurisdictions (as determined by
the Collateral Agent) one or more financing or continuation
statements (or any other document or instrument referred to in
the immediately preceding clause (b)) in the name of the
Pledgor and to sign the Pledgor's name thereto. The Pledgor
authorizes the Collateral Agent to file any such financing
statement, document or instrument without the signature of the
Pledgor to the extent permitted by applicable law. To the
extent permitted by Applicable Law, a carbon, photographic,
xerographic or other reproduction of this Agreement or any
financing statement is sufficient as a financing statement.
Any property comprising part of the Pledged Collateral
required to be delivered to the Collateral Agent pursuant to
this Pledge Agreement shall be accompanied by proper
instruments of assignment duly executed by the Pledgor and by
such other instruments or documents as the Collateral Agent
may reasonably request.
SECTION 14. Securities Act. In view of the position of
the Pledgor in relation to the Pledged Collateral, or because
of other current or future circumstances, a question may arise
under the Securities Act of 1933, as now or hereafter in
effect, or any similar Applicable Law hereafter enacted
analogous in purpose or effect (such Act and any such similar
Applicable Law as from time to time in effect being called the
"Federal Securities Laws") with respect to any disposition of
the Pledged Collateral permitted hereunder. The Pledgor
understands that compliance with the Federal Securities Laws
might very strictly limit the course of conduct of the
Collateral Agent if the Collateral Agent were to attempt to
dispose of all or any part of the Pledged Collateral in
accordance with the terms hereof, and might also limit the
extent to which or the manner in which any subsequent
transferee of any Pledged Collateral could dispose of the
same. Similarly, there may be other legal restrictions or
limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral in accordance
with the terms hereof under applicable Blue Sky or other state
securities laws or similar Applicable Law analogous in purpose
or effect. The Pledgor recognizes that in light of the
foregoing restrictions and limitations the Collateral Agent
may, with respect to any sale of the Pledged Collateral, limit
the purchasers to those who will agree, among other things, to
acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale
thereof. The Pledgor acknowledges and agrees that in light of
the foregoing restrictions and limitations, the Collateral
Agent, in its sole and absolute discretion, may, in accordance
with Applicable Law, (a) proceed to make such a sale whether
or not a registration statement for the purpose of registering
such Pledged Collateral or part thereof shall have been filed
under the Federal Securities Laws and (b) approach and
negotiate with a single potential purchaser to effect such
sale. The Pledgor acknowledges and agrees that any such sale
might result in prices and other terms less favorable to the
seller than if such sale were a public sale without such
restrictions. In the event of any such sale, the Collateral
Agent shall incur no responsibility or liability for selling
all or any part of the Pledged Collateral in accordance with
the terms hereof at a price that the Collateral Agent, in its
sole and absolute discretion, may in good xxxxx xxxx
reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been
realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached.
The provisions of this Section will apply notwithstanding the
existence of public or private market upon which the
quotations or sales prices may exceed substantially the price
at which the Collateral Agent sells.
SECTION 15. Indemnification. The Pledgor agrees to
indemnify and hold the Collateral Agent and any corporation
controlling, controlled by, or under common control with, the
Collateral Agent and any officer, attorney, director,
shareholder, agent or employee of the Collateral Agent or any
such corporation (each an "Indemnified Person"), harmless from
and against any claim, loss, damage, action, cause of action,
liability, cost and expense or suit of any kind or nature
whatsoever (collectively, "Losses"), brought against or
incurred by an Indemnified Person, in any manner arising out
of or, directly or indirectly, related to or connected with
this Agreement, including without limitation, the exercise by
the Collateral Agent of any of its rights and remedies under
this Agreement or any other action taken by the Collateral
Agent pursuant to the terms of this Agreement; provided,
however, the Pledgor shall not be liable to an Indemnified
Person for any Losses to the extent that such Losses result
from the gross negligence or willful misconduct of such
Indemnified Person. The Pledgor's obligations under this
section shall survive the termination of this Agreement and
the payment in full of the Secured Obligations.
SECTION 16. Continuing Security Interest. This Agreement
shall create a continuing security interest in the Pledged
Collateral and shall remain in full force and effect until it
terminates in accordance with its terms. The Pledgor and the
Collateral Agent hereby agree that the security interest
created by this Agreement in the Pledged Collateral shall not
terminate and shall continue and remain in full force and
effect notwithstanding the transfer to the Pledgor or any
person designated by it of all or any portion of the Pledged
Collateral.
SECTION 17. Security Interest Absolute. All rights of
the Collateral Agent hereunder, the grant of a security
interest in the Collateral and all obligations of the Pledgor
hereunder, shall be absolute and unconditional irrespective of
(a) any lack of validity or enforceability of the Credit
Agreement or any other Loan Document, any agreement with
respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in
the time, manner or place of the payment of, or in any other
term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document, or any other agreement or
instrument relating to any of the foregoing, (c) any exchange,
release or nonperfection of any other collateral, or any
release or amendment or waiver of or consent to or departure
from any guaranty, for all or any of the Obligations or (d)
any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Pledgor in
respect of the Obligations or in respect of this Agreement
(other than the indefeasible payment in full of all the
Obligations).
SECTION 18. No Waiver. Neither the failure on the part
of the Collateral Agent to exercise, nor the delay on its part
in exercising any right, power or remedy hereunder, nor any
course of dealing between the Collateral Agent and the Pledgor
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power, or remedy hereunder
preclude any other or the further exercise thereof or the
exercise of any other right, power or remedy.
SECTION 19. Notices. Notices, requests and other
communications required or permitted hereunder shall be given
in accordance with the applicable terms of the Credit
Agreement.
SECTION 20. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 21. Amendments. No amendment or waiver of any
provision of this Agreement nor consent to any departure by
the Pledgor herefrom shall in any event be effective unless
the same shall be in writing and signed by the parties hereto,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which
given.
SECTION 22. Binding Agreement; Assignment. This
Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and
assigns, except that the Pledgor shall not be permitted to
assign this Agreement or any interest herein or in the Pledged
Collateral, or any part thereof, or any cash or property held
by the Collateral Agent as collateral under this Agreement.
SECTION 23. Termination. Upon indefeasible payment in
full of all of the Secured Obligations, this Agreement shall
terminate. Upon termination of this Agreement in accordance
with its terms the Collateral Agent agrees to take such
actions as the Pledgor may reasonably request, and at the sole
cost and expense of the Pledgor, (a) to return the Pledged
Collateral to the Pledgor, and (b) to evidence the termination
of this Agreement, including, without limitation, the filing
of any releases or any termination statements under the
Uniform Commercial Code.
SECTION 24. Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be
ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Agreement.
SECTION 25. Headings. Section headings used herein are
for convenience only and are not to affect the construction of
or be taken into consideration in interpreting this Agreement.
SECTION 26. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
an original and all of which shall constitute but one
agreement.
SECTION 27. Definitions. Terms not otherwise defined
herein are used herein with the respective meanings given to
them in the Credit Agreement.
SECTION 28. Purchase Agreement. Notwithstanding any
other provision of this Pledge Agreement to the contrary, the
Collateral Agent acknowledges that the Pledged Securities and
the Pledgor's rights therein are subject to the terms of that
certain Purchase Agreement among Southern States Cooperative,
Incorporated, Southern States Capital Trust I, and the Pledgor
dated as of October 5, 1999 (the "Purchase Agreement"), which
Purchase Agreement limits the rights of the Pledgor and any
other holder of the Pledged Securities to dispose of the
Pledged Securities. The Pledgor agrees not to amend or modify
any provision of the Purchase Agreement without the prior
written consent of the Collateral Agent.
IN WITNESS WHEREOF, the Pledgor has executed and
delivered this Pledge Agreement under seal as of this the date
first written above.
GOLD XXXX INC.
By: /s/ Xxxxxxx X. Xxxx
Title: Chief Financial Officer
and Treasurer
Agreed to, accepted and acknowledged
as of the date first written above.
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH,
as Collateral Agent
By:/s/ Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
Title: Executive Director
[12792]
Schedule 1 to Pledge Agreement
Pledged Shares
Issuer No. of Certificate Nos.
Securities
Southern States 40,000, Series PB-1
Cooperative, B Cumulative
Incorporated Redeemable
Preferred
Southern States 60,000, Step-Up P-1
Capital Rate Capital Securities,
Trust I Series A
