EXHIBIT 1
PLEDGE AGREEMENT
In order to induce RPJ/JAJ PARTNER, LTD. (the "Company"), to extend credit
to XXXXXXX X. XXXXXX, an individual residing at 0000 Xxxxxxxxxx Xxxx, Xxxxxx.
Xxxx 00000 (the "Pledgor"), to enable Pledgor to purchase on credit shares of
the capital stock of FM PRECISION GOLF CORP. ("PGC") by the delivery of a
promissory note (the promissory note, being of even date herewith, and this
Agreement are hereinafter referred to as the "Loan Documents" and the
obligations of Pledgor under such promissory note and under this Agreement are
hereafter referred to as the "Secured Obligations"), Pledgor hereby grants to
the Company a security interest to secure the Secured Obligations, on the
following terms and subject to the following conditions, in:
(a) Eighty shares of the capital stock, par value $.01 per share of the
Company (collectively, the "Pledged Shares");
(b) any equity securities issued by PGC and any options, warrants or
rights to acquire such securities, owned or acquired by Pledgor,
directly or indirectly, now or at any time in the future;
(c) any securities or other property issued or distributed to Pledgor with
respect to any securities described in clauses (a) or (b) above as a
dividend or as a result of any amendment of the Certificate of
Incorporation of PGC or other charter documents, merger,
consolidation, redesignation, reclassification, purchase or sale of
assets, dissolution, or plan of arrangement, compromise or
reorganization of the issuer thereof;
(d) any rights incidental to the ownership of any of the securities
described in clauses (a), (b) or (c) above such as voting, conversion
and registration rights and rights of recovery for violations of
applicable securities laws; and
(e) the proceeds of the exercise, redemption, sale or exchange of any of
the foregoing or any dividend, interest payment or other distribution
of cash or property in respect thereof.
All of the foregoing may be referred to herein as the "Pledged Collateral."
ARTICLE 1. PLEDGE.
SECTION 1.1. DELIVERY.
(a) Before, or at the same time as Pledgor has executed and delivered this
Agreement to the Company, he has delivered to the Company all of the
certificates representing the Pledged Shares, duly endorsed in blank without
restriction and with all signatures guaranteed with a medallion signature
guaranty acceptable at any principal national securities exchange and with all
necessary transfer tax stamps affixed.
(b) If, at any time, Pledgor obtains possession of any certificate or
instrument constituting or representing any of the Pledged Collateral (other
than cash dividends from PGC out of earnings of the current or the last two
fiscal years, he shall deliver such certificate or instrument to the Company
forthwith duly endorsed in blank without restriction and with all signatures
guaranteed with a medallion signature guaranty acceptable at any principal
national securities exchange and with all necessary transfer tax stamps affixed.
(c) Pledgor may retain for his own use and shall not be required to deliver
to the Company any interest payments on or any cash dividends paid by PGC out of
earnings of the current or the last two fiscal years which have been paid on the
Pledged Collateral, but if an event of default as described in Section 4.1 below
(an "Event of Default") has occurred and is continuing, then all such interest
and dividends shall be delivered to the Company as provided in paragraph (b) of
this Section 1.1.
(d) If any of the Pledged Collateral is uncertificated securities, Pledgor
shall (i) procure the issuance of security certificates to represent such
Pledged Collateral and endorse and deliver such certificates to the Company as
required by paragraph (b) of this Section 1.1, (ii) cause the issuer thereof to
register the Company as the registered owner of such securities or (iii) cause
the issuer thereof to enter into an agreement, in form and substance
satisfactory to the Company, among the Company, the registered owner of such
security, and the issuer to the effect that the issuer will comply with
instructions originated by the Company without further consent by the registered
owner.
(e) If any Pledged Collateral is not securities and is not capable of being
delivered, Pledgor shall deliver to the Company such financing statements or
other instruments as are deemed necessary by the Company to enable it to perfect
its security interest in such Pledged Collateral under applicable law.
SECTION 1.2. RIGHTS. If no Event of Default has occurred or is continuing,
the Pledged Collateral will be registered in the name of Pledgor, and he may
exercise any voting or consensual rights that he may have as the owner of the
Pledged Collateral for any purpose which is not inconsistent with this
Agreement. Pledgor shall deliver to the Company copies of all notices, proxy
statements, proxies and other information or instruments in his possession
concerning such exercise and advise the Company of how he will exercise such
rights at least five (5) days before any meeting or mailing any ballot or
consent and shall not exercise any such right if, in the judgment of the
Company, such exercise would have a material adverse effect on the value of the
Pledged Collateral. If an Event of Default has occurred and is continuing, the
Company may exercise all voting or consensual rights of the owners of any of the
Pledged Collateral and Pledgor shall deliver to the Company all notices, proxy
statements, proxies and other information and instruments relating to the
exercise of such rights received by Pledgor from the issuers of any of the
Pledged Collateral promptly upon receipt thereof and shall at the request of the
Company execute and deliver to the Company any proxies or other instruments
which are, in the judgment of the Company, necessary for the Company to validly
exercise such voting and consensual rights.
SECTION 1.3. DUTY OF THE COMPANY. The duty of the Company with respect to
the Pledged Collateral shall be solely to use reasonable care in the physical
custody thereof, and the Company shall not be under any obligation to take any
action with respect to any of the Pledged Collateral or to preserve rights
against prior parties. The powers conferred on the Company hereunder are solely
to protect its interest in the Pledged Collateral and do not impose any duty
upon it to exercise any such powers. Pledgor is not looking to the Company to
provide him with investment advice. The Company shall have no duty to ascertain
or take any action with respect to calls, conversions, exchanges, maturities,
tenders or other matters concerning any Pledged Collateral, whether or not the
Company has or is deemed to have knowledge of such matters, or as to the taking
of any necessary steps to preserve any rights pertaining to any Pledged
Collateral. The Company shall have no duty to exercise reasonable care to
preserve the value of any of the Pledged Collateral unless (a) the value of the
Pledged Collateral as determined by market prices (taking for this purpose
Pledged Collateral which is not the subject of market quotations as having no
value unless it is the subject of a contract to purchase with a creditworthy
counterparty) exceeds by at least ten percent (10%) the total amount of the
Secured Obligations plus the cost of sale of such Pledged Collateral, (b) an
Event of Default has occurred and is continuing, (c) Pledgor has timely made a
reasonable request in writing to the Company to sell or redeem such Pledged
Collateral, (d) Pledgor provides the Company with the funds necessary to
exercise any purchase right and (e) Pledgor executes all instruments necessary
to continue the security interest of the Company in the proceeds of the
requested action.
SECTION 1.4. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. Pledgor
acknowledges that he has made his own arrangements for keeping informed of
changes or potential changes affecting the Pledged Collateral (including, but
not limited to, conversions, subscriptions, exchanges, reorganizations,
dividends, tender offers, mergers, consolidations and shareholder meetings) and
Pledgor agrees that the Company has no responsibility to inform Pledgor of such
matters or to take any action with respect thereto even if any of the Pledged
Collateral has been registered in the name of the Company or its agent or
nominee.
SECTION 1.5. RETURN OF PLEDGED COLLATERAL. The security interest granted to
the Company hereunder shall not terminate and the Company shall not be required
to return the Pledged Collateral to Pledgor unless and until (a) the Secured
Obligations have been fully paid or performed, (b) all of Pledgor's obligations
hereunder have been fully paid or performed, and (c) Pledgor has reimbursed the
Company for any expenses of returning the Pledged Collateral and filing such
termination statements and other instruments as are required to be filed in
public offices under applicable laws.
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ARTICLE 2. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants to the Company as follows:
SECTION 2.1. ENFORCEABILITY. This Agreement has been duly executed and
delivered by Pledgor, constitutes his valid and legally binding obligation and
is enforceable in accordance with its terms against Pledgor, his other creditors
and purchasers of the Pledged Collateral.
SECTION 2.2. NO CONFLICT. The execution, delivery and performance of this
Agreement, the grant of the security interest in the Pledged Collateral
hereunder and the consummation of the transactions contemplated hereby will not,
with or without the giving of notice or the lapse of time, (a) violate any
material law applicable to Pledgor; (b) violate any judgment, writ, injunction
or order of any court or governmental body or officer applicable to Pledgor; (c)
violate or result in the breach of any material agreement to which Pledgor is a
party or by which any of his properties, including the Pledged Collateral, is
bound; nor (d) violate any restriction on the transfer of any of the Pledged
Collateral.
SECTION 2.3. NO CONSENTS. No consent, approval, license, permit or other
authorization of any third party or any governmental body or officer is required
for the valid and lawful execution and delivery of this Agreement, the valid and
lawful creation and perfection of the Company's security interest in the Pledged
Collateral or the valid and lawful exercise by the Company of remedies available
to it under this Agreement or applicable law or of the voting and other rights
granted to it in this Agreement except as may be required for the offer or sale
of those items of Pledged Collateral which are securities under applicable
securities laws.
SECTION 2.4. SECURITY INTEREST. Pledgor is the sole record and beneficial
owner of the Pledged Shares free and clear of all liens, encumbrances and
adverse claims and Pledgor has the unrestricted right to grant the security
interest provided for herein to the Company. Pledgor has duly endorsed and
delivered to the Company all of the certificates representing the Pledged Shares
and has granted to the Company a valid and perfected first priority security
interest in the Pledged Shares, free of all liens, encumbrances, transfer
restrictions and adverse claims.
SECTION 2.5. INFORMATION. None of the information, documents, or financial
statements which has been furnished by Pledgor or his representatives to the
Company or any of its representatives in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact required to be stated hereby or thereby or
necessary to make such statements not misleading.
SECTION 2.6. NAME AND ADDRESS. Pledgor's full legal name and his principal
residence address are correctly set forth under his signature at the end of this
Agreement.
ARTICLE 3. COVENANTS. Pledgor hereby covenants and agrees with the Company that
Pledgor shall:
SECTION 3.1. DEFEND TITLE. Defend his title to the Pledged Collateral and
the security interest of the Company therein against the claims of any person
claiming rights in the Pledged Collateral against or through Pledgor and
maintain and preserve such security interest and its priority so long as this
Agreement shall remain in effect.
SECTION 3.2. NO TRANSFER. Neither sell nor offer to sell nor otherwise
transfer nor encumber any portion of the Pledged Collateral; nor enter into any
agreement which relates to the voting of or restricts the transfer of any of the
Pledged Collateral.
SECTION 3.3. FURTHER ASSURANCES. At Pledgor's expense, do such further acts
and execute and deliver such additional conveyances, certificates, instruments,
legal opinions and other assurances as the Company may at any time request or
require to protect, assure or enforce its interests, rights and remedies under
this Agreement. Pledgor shall execute and deliver to the Company and file with
the appropriate governmental offices in the State of Wyoming one or more Uniform
Commercial Code financing statements describing the Pledged Collateral in the
words used above, or amendments or continuations thereof whenever necessary to
continue the perfection of the Company's security interest hereunder and
whenever requested by the Company.
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SECTION 3.4. NAME AND ADDRESS. Notify the Company at least ninety (90) days
before he changes his name or the address of his principal residence.
SECTION 3.5. LATER DELIVERIES. Deliver or transfer a first priority
security interest in any Pledged Collateral that is transferred or delivered to
the Company after the date hereof, free and clear of all liens, encumbrances,
transfer restrictions and adverse claims.
ARTICLE 4. DEFAULT.
SECTION 4.1. EVENTS OF DEFAULT.
(a) If Pledgor fails to pay or perform, as the case may be, any of the
Secured Obligations when the same becomes due and payable or performable, as the
case may be; or
(b) If an event of default or event requiring the payment of the balance of
such promissory note occurs; or
(c) If Pledgor fails to perform any obligation or violates any covenant
contained in this Agreement, other than those referred to in subsection (a)
above, and such failure or violation continues unremedied for a period of three
(3) days after the Company requests Pledgor to remedy such failure or violation;
or
(d) If any representation or warranty made by Pledgor in this Agreement or
any information contained in any financial statement or other document delivered
to the Company by or on behalf of Pledgor contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein not misleading in light of the circumstances in which they were made; or
(e) If Pledgor:
(i) dies; or
(ii) makes an assignment for the benefit of, or enters into any
composition or arrangement with, creditors; or
(iii) generally does not pay his debts as such debts become due; or
(iv) conceals, removes, or permits to be concealed or removed, any
part of his property, with intent to hinder, delay or defraud his creditors or
any of them, or makes or suffers a transfer of any of his property which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law, or makes
any transfer of his property to or for the benefit of a creditor at a time when
other creditors similarly situated have not been paid; or
(f) If (i) a trustee, receiver, agent or custodian is appointed or
authorized to take charge of any property of Pledgor for the purpose of
enforcing a lien against such property or for the purpose of administering such
property for the benefit of his creditors; or
(ii) an order (A) for relief as to Pledgor is granted under Title 11
of the United States Code or any similar law, or (B) declaring Pledgor to be
incompetent is entered by any court; or
(iii) Pledgor files any pleading seeking, or authorizes or consents
to, any such appointment or order, whether by formal action or by the admission
of the material allegations of a pleading or otherwise; or
(iv) any action or proceeding seeking such appointment or order is
commenced without the authority or consent of Pledgor, and is not dismissed
within thirty (30) days after its commencement;
Pledgor shall be in default and the Company shall have, in addition to any other
remedies available to it under the law or any agreement, the rights and remedies
of a secured party under Article 9 of the Uniform Commercial Code.
SECTION 4.2. REMEDIES.
(a) If an Event of Default has occurred and is continuing, the Company may,
in its discretion: (i) register any of the Pledged Collateral in its name or in
the name of its broker/dealer, agent or nominee or any of their nominees, (ii)
exchange certificates representing any of the Pledged Collateral for
certificates of larger or smaller denominations, (iii) exercise any voting
rights of a holder of any of the Pledged Collateral in any manner which would,
in the commercially reasonable judgment of the Company, preserve or enhance the
value of the Pledged Collateral; (iv) exercise any conversion, registration,
purchase or other rights of a holder of any of the Pledged Collateral and any
reasonable expense of such exercise shall be deemed to be an expense of
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preserving the value of such Pledged Collateral for the purposes of Section 5.1
below; and (v) collect, including by legal action, any notes, checks or other
instruments for the payment of money included in the Pledged Collateral and
compromise or settle with any obligor of such instruments.
(b) If notice of the time and place of any public sale of the Pledged
Collateral or the time after which any private sale or other intended
disposition is required by the Uniform Commercial Code, Pledgor acknowledges
that five (5) days advance notice thereof will be a reasonable notice. The
Company shall not be obligated to make any sale of Pledged Collateral regardless
of whether notice of sale has been given. The Company may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
(c) If, under the Uniform Commercial Code, the Company may purchase any
part of the Pledged Collateral, it may, in payment of any part of the purchase
price thereof cancel any part of the Secured Obligations.
(d) If any of the Pledged Collateral is sold on credit or for future
delivery, it need not be retained by the Company until the purchase price is
paid and the Company shall incur no liability if the purchaser fails to take up
or pay for such Pledged Collateral. In case of any such failure, such Pledged
Collateral may be sold again.
(e) Pledgor shall execute and deliver to the purchasers of the Pledged
Collateral all instruments and other documents necessary or proper to sell,
convey, and transfer title to such Pledged Collateral and, if approval of any
sale of Pledged Collateral by any governmental body or officer is required,
Pledgor shall prepare or cooperate fully in the preparation of and cause to be
filed with such governmental body or officer all necessary or proper
applications, reports, and forms and do all other things necessary or proper to
expeditiously obtain such approval.
(f) Any cash held by the Company as Pledged Collateral and all cash
proceeds of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral may, in the discretion of the Company, be held by
the Company as collateral for, or then or at any time thereafter be applied
(after payment of any amounts payable to the Company pursuant to Article 5
below) in whole or in part against, all or any part of the Secured Obligations
in such order as the Company may elect. Any surplus of such cash or cash
proceeds held by the Company and remaining after payment in full of all of the
Company's expenses hereunder and the Secured Obligations shall be paid over to
Pledgor or to whomever may be lawfully entitled to receive such surplus.
SECTION 4.3. APPOINTMENT OF THE COMPANY AS AGENT. Pledgor hereby appoints
and constitutes the Company, its successors and assigns, as his agent and
attorney-in-fact for the purpose of carrying out the provisions of this
Agreement and taking any action or executing any instrument that the Company
considers necessary or convenient for such purpose, including the power to (a)
endorse and deliver checks, notes and other instruments for the payment of money
in the name of and on behalf of Pledgor, (b) endorse and deliver in the name of
and on behalf of Pledgor securities certificates, (c) execute and deliver in the
name of and on behalf of Pledgor instructions to the issuers of uncertificated
securities and (d) to execute and file in the name of and on behalf of Pledgor
financing statements (which may be photocopies of this Agreement) and
continuations and amendments to financing statements in the State of Wyoming or
elsewhere and Forms 144 with the United States Securities and Exchange
Commission. This appointment is coupled with an interest and is irrevocable and
will not be affected by the death or bankruptcy of Pledgor nor by the lapse of
time. If Pledgor fails to perform any act required by this Agreement, the
Company may perform such act in the name of and on behalf of Pledgor and at his
expense which shall be chargeable to Pledgor under Article 5 below. Pledgor
hereby consents and agrees that the issuers of or obligors of the Pledged
Collateral or any registrar or transfer agent or trustee for any of the Pledged
Collateral shall be entitled to accept the provisions hereof as conclusive
evidence of the rights of the Company to effect any transfer pursuant to this
Agreement and the authority granted to the Company herein, notwithstanding any
other notice or direction to the contrary heretofore or hereafter given by
Pledgor, or any other person, to any of such issuers, obligors, registrars,
transfer agents, or trustees.
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SECTION 4.4. IMPACT OF REGULATIONS. Pledgor acknowledges that compliance
with the Securities Act of 1933 and the rules and regulations thereunder and any
relevant state securities laws and other applicable laws may impose limitations
on the right of the Company to sell or otherwise dispose of securities included
in the Pledged Collateral. For this reason, Pledgor hereby authorizes the
Company to sell any securities included in the Pledged Collateral in such manner
and to such persons as would, in the judgment of the Company, help to ensure
that the transfer of such securities will be given prompt and effective approval
by any relevant regulatory authorities and will not require any of the
securities to be registered or qualified under any applicable securities laws.
Pledgor understands that a sale under the foregoing circumstances may yield a
substantially lower price for such Pledged Collateral than would otherwise be
obtainable if the same were registered and sold in the open market, and Pledgor
shall not attempt to hold the Company responsible for selling any of the Pledged
Collateral at an inadequate price even if the Company accepts the first offer
received or if only one possible purchaser appears or bids at any such sale. If
the Company shall sell any securities included in the Pledged Collateral at such
sale, the Company shall have the right to rely upon the advice and opinion of
any qualified appraiser or investment banker as to the commercially reasonable
price obtainable on the sale thereof but shall not be obligated to obtain such
advice or opinion. Pledgor hereby assigns to the Company any registration rights
or similar rights Pledgor may have from time to time with respect to any of the
Pledged Collateral.
SECTION 4.5. IRREVOCABLE PROXY. In furtherance of the rights granted to the
Company under Section 1.2 and paragraph (a) of Section 4.2 above, and not by way
of limitation of such rights, Pledgor hereby appoints the Company and its
officers as his proxy to vote any of the Pledged Shares or any of the other
Pledged Collateral, attend meetings of the holders of such securities and to
execute consents, waivers and releases with respect thereto. The Company and
such officers shall have the power of substitution with respect to such proxy.
Such proxy shall continue in force until the security interest granted to the
Company hereunder has terminated. Such proxy is irrevocable by Pledgor or by his
death, incapacity or bankruptcy. Pledgor acknowledges that such proxy is a power
coupled with an interest, including, without limitation, the security interest
granted to the Company herein and the related remedies granted to the Company in
this Article 4. The proxy granted under this Section 4.5 shall not be exercised
by the Company or its officers unless and until an Event of Default has occurred
and is continuing. If an Event of Default has occurred and is continuing, the
Company may exercise such proxy as provided in paragraph (a) of Section 4.2
above.
ARTICLE 5. EXPENSES.
SECTION 5.1. PAYMENT. Pledgor agrees that he will forthwith upon demand pay
to the Company:
(a) the amount of any taxes which the Company may have been required
to pay by reason of holding the Pledged Collateral or to free any of the Pledged
Collateral from any lien, encumbrance or adverse claim thereon, and
(b) the amount of any and all out-of-pocket expenses, including the
fees and disbursements of counsel and of any brokers, investment brokers,
appraisers or other experts, that the Company may incur in connection with (i)
the administration or enforcement of this Agreement, including such expenses as
are incurred to preserve the value of the Pledged Collateral and the validity,
perfection, rank and value of the Company's security interest therein, (ii) the
collection, sale or other disposition of any of the Pledged Collateral, (iii)
the exercise by the Company of any of the rights conferred upon it hereunder, or
(iv) any action or proceeding to enforce its rights under this Agreement or in
pursuit of any non-judicial remedy hereunder including the sale of the Pledged
Collateral.
Any such amount not paid on demand shall bear interest (computed on the basis of
the number of days elapsed over a year of three hundred sixty (360) days) at a
rate per annum equal to the rate announced from time to time by Star Bank in
Cincinnati, Ohio as its prime rate, plus three (3) percentage points.
SECTION 5.2 INDEMNITY. Pledgor shall indemnify the Company and its
partners, directors, officers, employees, agents and attorneys against, and hold
them harmless from, any liability, cost or expense, including the fees and
disbursements of their legal counsel, incurred by any of them under the
corporate or securities laws applicable to holding or selling any of the Pledged
Collateral, except for liability, cost or expense arising out of the
recklessness or willful misconduct of the indemnified parties.
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SECTION 5.3 DISCHARGE OF LIENS. At its option, the Company may pay and
discharge taxes, liens, security interests and other encumbrances on the Pledged
Collateral. Pledgor agrees to reimburse the Company under Section 5.1 above for
any payment made or any expense incurred (including reasonable attorneys' fees
and expenses to the extent permitted by law) by the Company pursuant to the
foregoing authorization.
ARTICLE 6. WAIVERS.
SECTION 6.1. WAIVER OF SURETYSHIP AND IMPAIRMENT OF COLLATERAL DEFENSES.
Pledgor hereby waives any defense to his obligations under this Agreement and
any claim that the security interest granted herein has been discharged or
released based on suretyship or impairment of collateral including, but not
limited to, the occurrence on any one or more occasions, of any of the
following:
(a) the amendment, modification or waiver of any term of the Loan Documents
or any other agreement or instrument evidencing or creating any of the Secured
Obligations or any payment or other performance due thereunder;
(b) the grant, exchange, release, surrender, disposal, invalidity or
impairment of or the failure to properly perfect any security interest in any
collateral which secures the Company's obligations hereunder, any of the Secured
Obligations or any other guaranty thereof;
(c) the existence or assertion by Pledgor of any defense to the Secured
Obligations, including, but not limited to, the bankruptcy of PGC;
(d) the impossibility or illegality of any payment or performance of any of
the Secured Obligations by Pledgor;
(e) any change in the relationship between Pledgor and the Company that
existed on the date hereof;
(f) any extension of the time for the payment or other performance of any
Secured Obligation on one or more occasions and for any period of time;
(g) any merger, consolidation, reorganization or other change in the
corporate organization of PGC;
(h) the exercise, pursuit or waiver of any right or remedy that the Company
may have against Pledgor or any other person or collateral at any time or the
failure to exercise or pursue any such right or remedy;
(i) the failure of the Company to give notice to Pledgor of the occurrence
of any default in Pledgor's payment or other performance of the Secured
Obligations;
(j) the taking of or omission to take any action under this Agreement, the
Loan Documents or the Secured Obligations; and
(k) the release or discharge of any guarantor or surety with respect to the
Loan Documents or Secured Obligations or any agreement not to xxx such persons.
SECTION 6.2. WAIVERS OF NOTICE. Pledgor hereby waives presentment, demand,
protest, notice of any default under the Loan Documents, and all other notices
to Pledgor specified in the Loan Documents or any other agreement between
Pledgor and the Company.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1. THIS AGREEMENT. This Agreement, the schedules and exhibits
hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties with respect to the
subject matter hereof and supersede and discharge all prior agreements (written
or oral) and negotiations and all contemporaneous oral agreements concerning
such subject matter and negotiations. There are no oral conditions precedent to
the effectiveness of this Agreement.
SECTION 7.2. NON-WAIVER. Neither the failure of nor any delay by any party
to this Agreement to enforce any right hereunder or to demand compliance with
its terms is a waiver of any right hereunder. No action taken pursuant to this
Agreement on one or more occasions is a waiver of any right hereunder or
constitutes a course of dealing that modifies this Agreement.
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SECTION 7.3. WAIVERS. No waiver of any right or remedy under this Agreement
shall be binding on any party unless it is in writing and is signed by the party
to be charged. No such waiver of any right or remedy under any term of this
Agreement shall in any event be deemed to apply to any subsequent default under
the same or any other term contained herein.
SECTION 7.4. AMENDMENTS. No amendment, modification or termination of this
Agreement shall be binding on any party hereto unless it is in writing and is
signed by the party to be charged.
SECTION 7.5. SEVERABILITY. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
SECTION 7.6. SUCCESSORS. The terms of this Agreement shall be binding upon
Pledgor, his heirs and personal representatives, and shall inure to the benefit
of the Company, its corporate successors, and any holder, owner or assignee of
any rights in any of the Loan Documents and will be enforceable by them as their
interest may appear.
SECTION 7.7. THIRD PARTIES. Nothing herein expressed or implied is intended
or shall be construed to give any person other than the parties hereto any
rights or remedies under this Agreement.
SECTION 7.8. SATURDAYS, SUNDAYS AND HOLIDAYS. Where this Agreement
authorizes or requires a payment or performance on a Saturday, Sunday or public
holiday, such payment or performance shall be deemed to be timely if made on the
next succeeding business day.
SECTION 7.9. JOINT PREPARATION. This Agreement shall be deemed to have been
prepared jointly by the parties hereto. Any ambiguity herein shall not be
interpreted against any party hereto and shall be interpreted as if each of the
parties hereto had prepared this Agreement.
SECTION 7.10. RULES OF CONSTRUCTION. In this Agreement, words in the
singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 7.11. NOTICES. Any notice, request or other communication required
or permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person, or when sent by telecopy or
other electronic means and electronic confirmation of error free receipt is
received or two days after being sent by certified or registered United States
mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth under such party's signature hereto and with such copies
delivered, transmitted or mailed to such persons as are specified therein. Any
party may change his address for notices in the manner set forth above.
SECTION 7.12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
SECTION 7.13 LEGAL MATTERS.
(a) REASONABLE RELATION. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of Wyoming.
(b) CHOICE OF LAW. The validity, terms, performance and enforcement of
this Agreement shall be governed by those laws of the State of Wyoming which are
applicable to agreements which are negotiated, executed, delivered and performed
solely in the State of Wyoming.
(c) JURISDICTION, VENUE, SERVICE OF PROCESS. The State and Federal
District Courts located in Wyoming shall have exclusive jurisdiction and venue
of any action or proceeding arising out of or related to the negotiation,
execution, delivery, performance, breach or enforcement of this Agreement or any
other agreement, document or instrument negotiated, executed, delivered, entered
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into or performed in connection with this Agreement or any of the transactions
contemplated hereby or thereby; any waiver, modification, amendment or
termination hereof or thereof or any action taken or omission made by Pledgor or
the Company or any of their respective directors, officers, employees, agents or
attorneys in connection with the payment, performance, exercise or enforcement
of any right, duty or obligation created or implied hereby or thereby or arising
hereunder or thereunder; regardless of whether any claim, counterclaim or
defense in any such action, suit or proceeding is characterized as arising out
of fraud, negligence, recklessness, intentional misconduct, a breach of contract
or fiduciary duty, or violation of a statute, law, ordinance, rule or
regulation. The parties hereto hereby irrevocably consent to the personal
jurisdiction of such courts, to such venue and to the service of process in the
manner provided for the giving of notices in this Agreement. The parties hereto
hereby waive all objections to such jurisdiction and venue including those which
might be based upon inconvenience or the nature of the forum.
(d) WAIVER OF JURY TRIAL. Pledgor hereby voluntarily, knowingly,
irrevocably and unconditionally waives and relinquishes his right to trial by
jury under the Constitution of the United States of America or of the State of
Wyoming or any other constitution, statute or law in any civil legal action,
suit or proceeding arising out of or related to the negotiation, execution,
delivery, performance, breach or enforcement of this Agreement or any other
agreement, document or instrument negotiated, executed, delivered, entered into
or performed in connection with this Agreement or any of the transactions
contemplated hereby or thereby; any waiver, modification, amendment or
termination hereof or thereof or any action taken or omission made by Pledgor or
the Company or any of their respective directors, officers, employees, agents or
attorneys in connection with the payment, performance, exercise or enforcement
of any right, duty or obligation created or implied hereby or thereby or arising
hereunder or thereunder; regardless of whether any claim, counterclaim or
defense in any such action, suit or proceeding is characterized as arising out
of fraud, negligence, recklessness, intentional misconduct, a breach of contract
or fiduciary duty, or violation of a statute, law, ordinance, rule or
regulation.
IN WITNESS WHEREOF, Pledgor has signed this Pledge Agreement as of this
first day of April, 1996.
PLEDGOR:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxx 00000
Accepted as of May 29, 1996
RPJ/JAJ PARTNERS. LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx, Partner
0000 Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
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