INVESTMENT PROPERTY
PLEDGE AND SECURITY AGREEMENT
THIS INVESTMENT PROPERTY PLEDGE AND SECURITY AGREEMENT ("Pledge
Agreement"), dated as of October 5, 2004, is by, CompX Group, Inc., a Delaware
corporation ("Pledgor") to and in favor of Congress Financial Corporation
(Southwest), a Texas corporation ("Pledgee").
W I T N E S S E T H:
WHEREAS, Pledgor is the direct and beneficial owner of the cash and
securities accounts identified on Exhibit A hereto and titled in the name of
Pledgor (individually, each an "Account" and collectively, the "Accounts")
maintained by the brokerage institutions identified on Exhibit A hereto
(individually, each a "Broker" and collectively, "Brokers"); and
WHEREAS, a minority shareholder of Pledgor, TIMET Finance Management
Company ("TFMC"), has guaranteed certain obligations arising under certain
financing arrangements pursuant to which Secured Party may make loans and
advances and provide other financial accommodations to Titanium Metals
Corporation ("Timet") and Titanium Hearth Technologies, Inc., a Delaware
corporation ("THT", and together with Timet, individually each a "Borrower" and
collectively, "Borrowers") as set forth in the Loan and Security Agreement,
dated February 25, 2000, by and among Borrowers, certain guarantors identified
therein ("Guarantors", together with Borrowers, individually each a "Obligor"
and collectively, "Obligors") and Secured Party (as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and the other agreements, documents and
instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including, but not limited to, this
Agreement (all of the foregoing, together with the Loan Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
"Financing Agreements"); capitalized terms not otherwise defined herein shall
have the meanings set forth in the Loan Agreement;
WHEREAS, due to the close business and financial relationships between
Obligors and Pledgor, including without limitation the contribution to Pledgor
of the Pledged Property (as defined below), in consideration of the benefits
which will accrue to Pledgor and as an inducement for and in consideration of
Secured Party continuing to make loans and advances and providing other
financial accommodations to Borrowers pursuant to the Loan Agreement and the
other Financing Agreements, Pledgor has agreed to pledge to Pledgee, and grant
Pledgee, a security interest in and lien upon, all of its right, title and
interest in and to the Accounts and all financial assets at any time held
therein as set forth herein;
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NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations (as hereinafter defined),
Pledgor hereby assigns, pledges, hypothecates, transfers and sets over to
Pledgee and grants to Pledgee a security interest in and lien upon the following
(collectively, the "Pledged Property"): (a) all right, title and interest of
Pledgor in and to the Accounts as the same may now or hereafter be constituted,
now existing or hereafter arising; (b) all cash, securities, commodities
contracts, instruments, documents, general intangibles, financial assets or
other investment property, held in or payable from, or credited to, any Account,
now existing or hereafter arising or acquired; (c) all reinvestments,
roll-overs, substitutions and exchanges for any and all of the foregoing, and
all monies and proceeds due or to become due thereon, including, but not limited
to, any and all dividends, interest, profits interests, profits, redemptions,
warrants, subscription rights, stock, securities options, and other
distributions whether of cash or other property, now or hereafter distributed or
which may hereafter be earned by or delivered for any Account; (d) any rights
incidental or related to the ownership of any of the foregoing, such as voting,
conversion and registration rights and rights of recovery for securities law
violations; and (e) all books and records relating to the foregoing; and (f) the
proceeds of all of the foregoing.
2. OBLIGATIONS SECURED
The security interest, lien and other interests granted to Pledgee pursuant
to this Pledge Agreement shall secure the prompt performance and payment in full
of any and all obligations, liabilities and indebtedness of every kind, nature
and description owing by any Obligor to Pledgee, including principal, interest,
charges, fees, costs and expenses however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, arising under the Loan Agreement or
any of the other Financing Agreements, whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal term
of the Loan Agreement or after the commencement of any case with respect to
Pledgor or any Obligor under the United States Bankruptcy Code or any similar
statute (including, without limitation, the payment of interest and other
amounts which would accrue and become due but for the commencement of such
case), whether direct or indirect, absolute or contingent, joint or several, due
or not due, primary or secondary, liquidated or unliquidated, or secured or
unsecured (all of the foregoing being collectively referred to herein as the
"Obligations").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
Pledgor hereby represents, warrants and covenants with and to Pledgee the
following (all of such representations, warranties and covenants being
continuing so long as any of the Obligations are outstanding):
(a) Each Broker has established and maintains, and Pledgor shall cause each
Broker to maintain, the Account next to its name on Exhibit A hereto in the name
of Pledgor.
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(b) Pledgor has executed and delivered, or will execute and deliver, to
Pledgee Investment Property Control Agreements in favor of Pledgee in the form
of Exhibit B hereto and has caused, or will cause, each Broker to execute and
deliver such agreement to Pledgee (as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced,
individually each a "Control Agreement" and collectively, the "Control
Agreements").
(c) To the best of the knowledge of Pledgor, (i) each Broker is a business
corporation which in the ordinary course of its business maintains securities
for its customers and maintains securities accounts in the name of such
customers reflecting ownership of or interests in such securities and all
records relating to such accounts, (ii) each Broker has identified and
registered (by book-entry or otherwise) the financial assets in the Account
maintained by it on its books and records as belonging to Pledgor, and (iii)
each Broker has registered in its records the interests of Pledgee in such
Account.
(d) Pledgor has all requisite power and authority to enter into this Pledge
Agreement and the Control Agreements, to pledge the Pledged Property for the
purposes described herein and to carry out the transactions contemplated by this
Pledge Agreement and the Control Agreements.
(e) All Pledged Property is directly, legally and beneficially owned by
Pledgor free and clear of any pledge, mortgage, hypothecation, lien, charge,
encumbrance or any security interest or the proceeds thereof, except for the
security interest granted to the Pledgee hereunder, as provided in the Control
Agreement with respect to each Broker.
(f) The execution, delivery and performance by Pledgor of this Pledge
Agreement and the Control Agreements have been duly and properly authorized and
does not and will not result in any violation of any agreement, indenture or
other instrument, license, judgment, decree, order, law, statute, ordinance or
other governmental rule or regulation applicable to Pledgor.
(g) Upon delivery of the duly executed Control Agreements to Pledgee, this
Pledge Agreement together with the applicable Control Agreement creates and
grants a valid first lien on and perfected security interest in each Account and
the proceeds thereof.
(h) The securities entitlements credited to any Account are valid and
genuine and Pledgor has provided, and upon request agrees to provide, Pledgee
with a complete and accurate statement of the financial assets and the money
credited to such Account as of the date hereof.
(i) Pledgor shall not, directly or indirectly, sell, convey, or otherwise
dispose of or withdraw any money, securities or property from any Account or any
interest in such Account, nor shall Pledgor create, incur or permit to exist any
pledge, mortgage, lien, charge, encumbrance or any security interest whatsoever
with respect to any of the Pledged Property or the proceeds thereof other than
the pledge and security interest in favor of Pledgee or the liens permitted each
Broker under the applicable Control Agreement, provided, that, (A) Pledgor may
make trades in the Accounts with respect to the CIX Minority Shares (as such
terms is defined in the Consent to CompX Stock Transfer, dated as of October __,
2004, by and among Borrowers, Pledgor, the other Guarantors and Pledgee) before
(but not after) the occurrence of an Event of Default, but subject to the
proceeds of any such trades remaining in the Accounts unless withdrawn from such
Account to the extent permitted under the applicable Control Agreement and (B)
Pledgor may withdraw funds from each Account to the extent permitted under the
applicable Control Agreement.
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(j) Pledgor shall not modify or terminate the Control Agreements or
Pledgor's customer agreement with each Broker under which the Accounts were
established.
(k) Pledgor shall, at it own expense, (i) defend Pledgee's right, title,
special property and security interest in and to the Pledged Property against
the claims of any person, (ii) deliver any certificate or instrument
constituting or representing any of the Pledged Property that it may obtain
possession of to a Broker for credit to any Account, duly endorsed in blank
without restriction, with a signature guaranty acceptable at the New York Stock
Exchange and with all necessary transfer tax stamps affixed, and (iii) deliver
to each Broker any endorsements or instruments which may be necessary or
desirable to transfer any financial assets held by such Broker which are
registered in the name of, payable to the order of, or specially endorsed to
Pledgor, to such Broker or its securities intermediary or to one of their
respective nominees.
(l) Any cash, checks or other instruments or items received by Pledgor or
Pledgee relating to the matured Pledged Securities, and such amounts shall be
reinvested in the Accounts or may be withdrawn from the Accounts to the extent
permitted under the Control Agreements.
(m) To the extent necessary to give effect to the foregoing authorizations
and subject to the terms of this Pledge Agreement, Pledgor hereby appoints
Pledgee as lawful attorney in fact for the purposes of reinvesting the proceeds
of any Pledged Property and receiving and receipting for any cash, checks, or
other instruments or items relating thereto.
(n) The Pledged Property is not registered, nor has Pledgor authorized the
registration thereof, in the name of any person or entity other than Pledgor,
Pledgee or the applicable Broker.
(o) The Pledged Property is not subject to any restrictions relative to the
transfer thereof (other than any restrictions under federal or state securities
or other similar laws that are applicable thereto, if any, and other than the
restrictions under that certain Subscription Agreement, dated as of October 1,
2004, by and between NL Industries, Inc., TFMC and Pledgor in the form delivered
to Lender prior to the dater hereof) and Pledgor has the right to transfer and
hypothecate to the Pledgee the Pledged Property free and clear of any liens,
encumbrances or restrictions.
(p) The Pledged Property is duly and validly pledged to Pledgee and no
consent or approval of any governmental or regulatory authority or of any
securities exchange or the like, nor any consent or approval of any other third
party, was or is necessary to the validity and enforceability of this Pledge
Agreement.
(q) Pledgor authorizes Pledgee to perform any and all acts which Pledgee in
good xxxxx xxxxx reasonable and/or necessary for the protection and preservation
of the Pledged Property or its value or Pledgee's security interest therein, and
pay any charges or expenses which Pledgee deems necessary for the foregoing
purpose, but without any obligation to do so. Any obligation of Pledgee for
reasonable care for the Pledged Property in Pledgee's possession shall be
limited to the same degree of care which Pledgee uses for similar property
pledged to Pledgee by other persons.
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(r) Pledgor shall pay all charges and assessments of any nature against the
Pledged Property or with respect thereto prior to said charges and/or
assessments being delinquent.
(s) Pledgor shall promptly reimburse Pledgee on demand, together with
interest at the rate then applicable to the indebtedness of Pledgor to Pledgee
set forth in the Loan Agreement, for any charges, assessments or expenses paid
or incurred by Pledgee in its discretion for the protection, preservation and
maintenance of the Pledged Property and the enforcement of Pledgee's rights
hereunder, including, without limitation, attorneys' fees and legal expenses
incurred by Pledgee in seeking to protect, collect or enforce its rights in the
Pledged Property or otherwise hereunder.
(t) Pledgor shall furnish, or cause to be furnished, to Pledgee such
information concerning the Pledged Property as Pledgee may from time to time
request.
(u) From and after the occurrence and during the continuance of an Event of
Default, Pledgee may notify any appropriate transfer agent of the Pledged
Securities to register the security interest and pledge granted herein and honor
the rights of Pledgee with respect thereto.
(v) Pledgor waives: (i) all rights to require Pledgee to proceed against
any other person, entity or collateral or to exercise any remedy, (ii) the
defense of the statute of limitations in any action upon any of the Obligations,
(iii) any rights to notice of any kind or nature whatsoever, unless specifically
required in this Pledge Agreement or non-waivable under any applicable law, and
(iv) to the extent permissible, its rights under Section 9-207 of the Uniform
Commercial Code. Pledgor agrees that the Pledged Property, other collateral, or
any other guarantor or endorser may be released, substituted or added with
respect to the Obligations, in whole or in part, without releasing or otherwise
affecting the liability of Pledgor, the pledge and security interests granted
hereunder, or this Pledge Agreement. Pledgee is entitled to all of the benefits
of a secured party set forth in Section 9-207 of the Uniform Commercial Code.
(w) Subject to the terms of the Control Agreements and the Loan Agreement,
unless and until an Event of Default exists or has occurred and is continuing,
Pledgor shall retain the right to vote any securities in the Accounts, exercise
any rights of conversion, redemption, exchange, subscription, registration or
any other rights, privileges or options with respect thereto, give all consents,
waivers and ratifications in respect thereof and otherwise act with respect
thereto as the owner of thereof, including without limitation issuing
entitlement orders and otherwise transferring or disposing of the Pledged
Property to the extent permitted under the applicable Control Agreement.
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4. ADDITIONAL WAIVERS AND CONSENTS.
(a) Notice of acceptance of this Pledge Agreement, the making of loans and
advances and providing other financial accommodations to Borrowers and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Obligors or Pledgor is entitled are hereby waived
by Pledgor. Pledgor also waives notice of and hereby consents to, (i) any
amendment, modification, supplement, extension, renewal, or restatement of the
Loan Agreement and any of the other Financing Agreements, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Obligations, the interest rate, fees, other charges, or any
collateral, shall apply to the Loan Agreement and the other Financing Agreements
and the Obligations as so amended, modified, supplemented, renewed, restated or
extended, increased or decreased, (ii) the taking, exchange, surrender and
releasing of collateral or guarantees now or at any time held by or available to
Lender for the obligations of Borrowers or any other Obligors or any other party
who is the owner of any property which is security for the Obligations, (iii)
the exercise of, or refraining from the exercise of any rights against Borrowers
or any other Obligor or any collateral, (iv) the settlement, compromise or
release of, or the waiver of any default with respect to, any of the Obligations
and (v) any financing by Lender of Borrowers or any Obligor under Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Bankruptcy Code or consent to the use of cash collateral by
Lender under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code. Pledgor agrees
that the amount of the Obligations shall not be diminished and the liability of
Pledgor hereunder shall not be otherwise impaired or affected by any of the
foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part of
the Obligations shall affect, impair or be a defense to this Pledge Agreement,
nor shall any other circumstance which might otherwise constitute a defense
available to or legal or equitable discharge of Borrowers in respect of any of
the Obligations, or Pledgor in respect of this Pledge Agreement, affect, impair
or be a defense to this Pledge Agreement. Without limitation of the foregoing,
the liability of Pledgor hereunder shall not be discharged or impaired in any
respect by reason of any failure by Lender to perfect or continue perfection of
any lien or security interest in any collateral or any delay by Lender in
perfecting any such lien or security interest. As to interest, fees and
expenses, whether arising before or after the commencement of any case with
respect to any Obligor under the United States Bankruptcy Code or any similar
statute, Pledgor shall be liable therefor, even if such Obligors' liability for
such amounts does not, or ceases to, exist by operation of law. Pledgor
acknowledges that Lender has not made any representations to Pledgor with
respect to any Obligor or otherwise in connection with the execution and
delivery by Pledgor of this Pledge Agreement and Pledgor is not in any respect
relying upon Lender or any statements by Lender in connection with this Pledge
Agreement.
(c) Unless and until the indefeasible payment and satisfaction in full of
all of the Obligations in immediately available funds and the termination of the
financing arrangements of Lender with Borrowers, Pledgor hereby irrevocably and
unconditionally waives and relinquishes (i) all statutory, contractual, common
law, equitable and all other claims against Borrowers, any collateral for the
Obligations or other assets of Borrowers or any other Obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect to sums paid or payable to Lender by Pledgor hereunder and
(ii) any and all other benefits which Pledgor might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by or
collected or due from Pledgor, Borrowers or any other Obligor upon the
Obligations or realized from their property.
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5. RIGHTS AND REMEDIES
At any time an Event of Default (as defined in the Loan Agreement) exists
or has occurred and is continuing, in addition to all other rights and remedies
of Pledgee, whether provided under this Pledge Agreement, the Loan Agreement,
the other Financing Agreements, applicable law or otherwise, Pledgee shall have
the following rights and remedies which may be exercised without notice to, or
consent by, Pledgor except as such notice or consent is expressly provided for
hereunder:
(a) Pledgee, at its option, shall be empowered to exercise its continuing
right to instruct any Broker to register any or all of the Pledged Property in
the name of Pledgee or in the name of Pledgee's nominee and Pledgee may
complete, in any manner Pledgee may deem expedient, any and all stock powers,
assignments or other documents heretofore or hereafter executed in blank by
Pledgor and delivered to Pledgee and Pledgee may send the Notice of Exclusive
Control (as such term is defined in the applicable Control Agreement) to the
broker under any Control Agreement. Pledgee may vote any securities in any
Account (whether or not so transferred) and give all consents, waivers and
ratifications in respect thereof and otherwise act with respect thereto as
though it were the outright owner thereof (Pledgor hereby irrevocably
constituting and appointing Pledgee, with full power of substitution, the proxy
and attorney-in-fact of Pledgor for such purposes). After said instruction, and
without further notice, Pledgee shall have the exclusive right to exercise any
and all corporate rights with respect to the Accounts and any of the other
Pledged Property, including, all rights of conversion, redemption, exchange,
subscription or any other rights, privileges, or options pertaining to any of
the Pledged Property as if Pledgee were the absolute owner thereof. Upon the
exercise of any such rights, privileges or options by Pledgee, Pledgee shall
have the right to transfer, or cause any Broker to transfer, deposit and deliver
any and all of the Pledged Property to any committee, depository, transfer
agent, registrar or other designated agency upon such terms and conditions as
Pledgee may determine, all without liability, except to account for property
actually received by Pledgee. However, Pledgee shall have no duty to exercise
any of the aforesaid rights, privileges or options (all of which are exercisable
in the sole discretion of Pledgee) and shall not be responsible for any failure
to do so or delay in doing so.
(b) Pledgee may, at its option, require all cash dividends payable with
respect to any securities in any Account be paid to Pledgee as additional
collateral security, or, in Pledgee's discretion for application to the
Obligations, in such order and manner as Pledgee may determine.
(c) Pledgee may, in its discretion: (i) deliver a notice of exclusive
control under any Control Agreement, (ii) cause the Accounts to be registered in
Pledgee's sole name or transfer any Account to another broker/dealer to be held
in Pledgee's sole name, (iii) remove any items of Pledged Property from any
Account and register same in Pledgee's name or in the name of its broker/dealer,
nominee or agent or any of their nominees, (iv) exchange certificates
representing any of the Pledged Property for certificates of larger or smaller
denominations, (v) collect, including by legal action, any notes, instruments,
checks or other evidences of payment obligations included in the Pledged
Property and compromise or settle same with the relevant obligor and (vi) cause
any Broker or any other broker/dealer, agent or nominee aforesaid, to dispose of
any Pledged Property with the proceeds thereof to be applied to the Obligations
in such order and manner as Pledgee may determine.
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(d) In addition to all the rights and remedies of a secured party under the
Uniform Commercial Code or other applicable law, Pledgee shall have the right,
at any time and without demand of performance or other demand, advertisement or
notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly waived to the
extent permitted by applicable law), to proceed forthwith to collect, redeem,
recover, receive, appropriate, realize, sell, or otherwise dispose of and
deliver said Pledged Property or any part thereof in one or more lots at public
or private sale or sales at any exchange, broker's board or at any of Pledgee's
offices or elsewhere at such prices and on such terms as Pledgee may deem best.
The foregoing disposition(s) may be for cash or on credit or for future delivery
without assumption of any credit risk, with Pledgee having the right to purchase
all or any part of said Pledged Property so sold at any such sale or sales,
public or private, free of any right or equity of redemption in Pledgor, which
right or equity is hereby expressly waived or released by Pledgor. The proceeds
of any such collection, redemption, recovery, receipt, appropriation,
realization, sale or other disposition, after deducting all costs and expenses
of every kind incurred relative thereto or incidental to the care, safekeeping
or otherwise of any and all Pledged Property or in any way relating to the
rights of Pledgee hereunder, including attorneys' fees and legal expenses, shall
be applied first to the satisfaction of the Obligations (in such order as
Pledgee may elect and whether or not due) and then to the payment of any other
amounts required by applicable law, including Section 9-615 of the Uniform
Commercial Code, with Pledgor to be and remain liable for any deficiency.
Pledgor shall be liable to Pledgee for the payment on demand of all such costs
and expenses, together with interest at the then applicable rate set forth in
the Loan Agreement, and any attorneys' fees and legal expenses. Pledgor agrees
that ten (10) days prior written notice by Pledgee designating the place and
time of any public sale or of the time after which any private sale or other
intended disposition of any or all of the Pledged Property is to be made, is
reasonable notification of such matters.
(e) All of the Pledgee's rights and remedies, including, but not limited
to, the foregoing and those otherwise arising under this Pledge Agreement, the
Loan Agreement and the other Financing Agreements, the instruments comprising
the Pledged Property, applicable law or otherwise, shall be cumulative and not
exclusive and shall be enforceable alternatively, successively or concurrently
as Pledgee may deem expedient. No failure or delay on the part of Pledgee in
exercising any of its options, powers or rights or partial or single exercise
thereof, shall constitute a waiver of such option, power or right.
6. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
(a) The validity, interpretation and enforcement of this Pledge Agreement
and the other Financing Agreements and any dispute arising out of the
relationship between the parties hereto, whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of Texas, but
excluding any rule of law that would cause the application of the law of any
jurisdiction other than the laws of the State of Texas.
(b) Pledgor irrevocably consents and submits to the non-exclusive
jurisdiction of the District Court of the State of Texas and the United States
District Court for the Northern District of Texas and waives any objection based
on venue or forum non conveniens with respect to any action instituted therein
arising under this Pledge Agreement or any of the other Financing Agreements or
in any way connected with or related or incidental to the dealings of the
parties hereto in respect of this Pledge Agreement or any of the other Financing
Agreements or the transactions related hereto or thereto, in each case whether
now existing or hereafter arising, and whether in contract, tort, equity or
otherwise, and agrees that any dispute with respect to any such matters shall be
heard only in the courts described above (except that Pledgee shall have the
right to bring any action or proceeding against Pledgor or its property in the
courts of any other jurisdiction which Pledgee deems necessary or appropriate in
order to realize on the Pledged Property or to otherwise enforce its rights
against Pledgor or its property).
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(c) Pledgor hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by certified mail
(return receipt requested) directed to its address set forth herein and service
so made shall be deemed to be completed five (5) days after the same shall have
been so deposited in the U.S. mails, or, at Pledgee's option, by service upon
Pledgor in any other manner provided under the rules of any such courts. Except
as otherwise required by the applicable court, and only after an Event of
Default, within sixty (60) days after such service, Pledgor shall appear in
answer to such process, failing which Pledgor shall be deemed in default and
judgment may be entered by Pledgee against Pledgor for the amount of the claim
and other relief requested.
(d) PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS PLEDGE AGREEMENT OR ANY OF THE
OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF PLEDGOR AND PLEDGEE IN RESPECT OF THIS PLEDGE
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. PLEDGOR HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT PLEDGOR OR PLEDGEE MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS PLEDGE AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(e) Pledgee shall not have any liability to Pledgor (whether in tort,
contract, equity or otherwise) for losses suffered by Pledgor in connection
with, arising out of, or in any way related to the transactions or relationships
contemplated by this Pledge Agreement, or any act, omission or event occurring
in connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Pledgee, that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct. In any
such litigation, Pledgee shall be entitled to the benefit of the rebuttable
presumption that it acted in good faith and with the exercise of ordinary care
in the performance by it of the terms of this Pledge Agreement.
7. MISCELLANEOUS
(a) Pledgor agrees that at any time and from time to time upon the written
request of Pledgee, Pledgor shall execute and deliver such further documents,
including, but not limited to, irrevocable proxies or stock powers, in form
satisfactory to counsel for Pledgee, and will take or cause to be taken such
further acts as Pledgee may request in order to effect the purposes of this
Pledge Agreement and perfect or continue the perfection of the security interest
in the Pledged Property granted to Pledgee hereunder.
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(b) Beyond the exercise of reasonable care to assure the safe custody of
the Pledged Property (whether such custody is exercised by Pledgee, or Pledgee's
nominee, agent or bailee) Pledgee or Pledgee's nominee agent or bailee shall
have no duty or liability to protect or preserve any rights pertaining thereto
and shall be relieved of all responsibility for the Pledged Property upon
surrendering it to Pledgor or foreclosure with respect thereto.
(c) All notices, requests and demands to or upon the respective parties
hereto shall be in writing and shall be deemed to have been duly given or made:
if delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
registered or certified mail, return receipt requested, five (5) days after
mailing. All notices, requests and demands upon the parties are to be given to
the following addresses (or to such other address as any party may designate by
notice in accordance with this Section):
If to Pledgor: CompX Group, Inc.
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Attention: General Counsel
With a copy to: Titanium Metals Corporation
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Attention: General Counsel
If to Secured Party: Congress Financial Corporation (Southwest)
Heritage Square II
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Attention: Portfolio Manager - Timet
10
(d) All references to the plural herein shall also mean the singular and to
the singular shall also mean the plural. All references to Pledgor, Pledgee and
Broker pursuant to the definitions set forth in the recitals hereto, or to any
other person herein, shall include their respective successors and assigns. The
words "hereof," "herein," "hereunder," "this Pledge Agreement" and words of
similar import when used in this Pledge Agreement shall refer to this Pledge
Agreement as a whole and not any particular provision of this Pledge Agreement
and as this Pledge Agreement now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced. An Event of Default shall
exist or continue or be continuing until such Event of Default is waived in
accordance with Section 6(g) hereof or cured in a manner satisfactory to Pledgee
in good faith, if such Event of Default is capable of being cured as determined
by Pledgee in good faith. All references to the term "Person" or "person" herein
shall mean any individual, sole proprietorship, partnership, corporation
(including, without limitation, any corporation which elects subchapter S status
under the Internal Revenue Code of 1986, as amended), limited liability company,
limited liability partnership, business trust, unincorporated association, joint
stock company, trust, joint venture or other entity or any government or any
agency, instrumentality or political subdivision thereof.
(e) This Pledge Agreement, the other Financing Agreements and any other
document referred to herein or therein shall be binding upon Pledgor and its
successors and assigns and inure to the benefit of and be enforceable by Pledgee
and its successors and assigns.
(f) If any provision of this Pledge Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Pledge Agreement as a whole, but this Pledge Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
(g) Neither this Pledge Agreement nor any provision hereof shall be
amended, modified, waived or discharged orally or by course of conduct, but only
by a written agreement signed by an authorized officer of Pledgee. Pledgee shall
not, by any act, delay, omission or otherwise be deemed to have expressly or
impliedly waived any of its rights, powers and/or remedies unless such waiver
shall be in writing and signed by an authorized officer of Pledgee. Any such
waiver shall be enforceable only to the extent specifically set forth therein. A
waiver by Pledgee of any right, power and/or remedy on any one occasion shall
not be construed as a bar to or waiver of any such right, power and/or remedy
which Pledgee would otherwise have on any future occasion, whether similar in
kind or otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Pledgor has executed this Pledge Agreement as of the
day and year first above written.
COMPX GROUP, INC.
By:
Title:
11
EXHIBIT A
TO
INVESTMENT PROPERTY PLEDGE
AND SECURITY AGREEMENT
----------------------
Broker Account Number
------ --------------
First Southwest Company ____________
JonesTrading Institutional Services LLC ____________
A-1
EXHIBIT B
TO
INVESTMENT PROPERTY PLEDGE
AND SECURITY AGREEMENT
----------------------
[Copies of Investment Property Control Agreements]
B-1
