EXHIBIT 26
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Date: April 2, 2001
Pledge Agreement
Between and
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BANK: (SECURED PARTY) PLEDGOR/(DEBTOR):
Bank of America, X.X. Xxxxx Family Limited Partnership
Banking Center: [_____________________]
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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Pledgor is a Delaware limited partnership.
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Address is Pledgor's place of business
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1. SECURITY INTEREST. For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Pledgor pledges, assigns and
grants to Bank, as collateral agent (in such capacity, together with
its successors or assigns, the "Collateral Agent") for the Bank and its
permitted successors and assigns (collectively, the "Lenders"), a
security interest and lien in the Collateral (hereinafter defined) to
secure the payment and the performance of the Obligations (hereinafter
defined).
2. COLLATERAL. The security interest is granted in the following
collateral ("Collateral"):
A. DESCRIPTION OF COLLATERAL. Account number [_________________]
(together with any successor or replacement account, the "Account") maintained
by Pledgor with Bank of America, N.A. (together with its successors and assigns,
"Agent"), as custodian under an agreement for custody, investment management,
investment advisory or similar services between Pledgor and the Agent,
specifically including but not limited to all investments and investment
property now or hereafter held in or credited to the Account, including, without
limitation, all security entitlements with respect to the Account, all
documents, instruments, ordinary goods, certificates of title, general
intangibles, chattel paper, mineral interests, certificated and uncertificated
securities, securities in book-entry form, mutual funds, U.S. government and
state obligations, deposit accounts and cash now or hereafter deposited in or
credited to the Account.
B. PROCEEDS. All additions, substitutes and replacements for and
proceeds of the above Collateral (including all income and benefits resulting
from any of the above, such as dividends payable or distributable in cash,
property or stock; interest, premium and principal payments; redemption proceeds
and subscription rights; and shares or other proceeds of conversions or splits
of any securities in Collateral). Any securities received by the Pledgor which
shall comprise such additions, substitutes and replacements for, or proceeds of,
the Collateral, shall be held in trust for the Collateral Agent and shall be
delivered immediately to the Collateral Agent. Any cash proceeds shall be held
in trust for the Collateral Agent and upon request shall be delivered
immediately to the Collateral Agent.
3. OBLIGATIONS. The security interest created hereby in the Pledged
Collateral constitutes continuing collateral security for all of the following
obligations, whether now existing or hereafter incurred (the "OBLIGATIONS"):
(a) the obligations of Xxxxxxx Xxxxx and Xxxxxx
Xxxxx, as borrowers (the "Borrowers"), to pay, as
and when due and payable (whether on demand, by mandatory prepayment, by
scheduled maturity or otherwise), all amounts from time to time owing by any of
them in respect of any Loan Document, as such term is defined in (i) the Third
Amended and Restated Credit Agreement, dated as of January 18, 1996, between the
Borrowers and the Bank, as amended and restated as of June 19, 1997, as amended
and restated as of January 2, 1999, and as amended and restated as of April 2,
2001 (as so amended and restated, and as such agreement may be further amended
or otherwise modified from time to time, the "Loan Agreement"; capitalized terms
used herein and not defined having the meanings herein set forth therein),
whether for reimbursement of drawings, payment on guaranties, termination
compensation on hedging agreements, principal, interest, fees, indemnities or
otherwise (including, without limitation, amounts that but for the operation of
Section 362(a) of the Bankruptcy Code would become due);
(b) the due performance and observance by the
Borrowers of all of their other obligations from time
to time existing under any Loan Document (as defined in the Loan Agreement); and
(c) the due performance and observance by each
Borrower of all of such Borrower's obligations under
this Agreement and each other Loan Document (as defined in the Loan Agreement)
to which such Borrower is or may become a party.
Without limiting the generality of the foregoing, this Agreement secures the
payment of all amounts that constitute part of the Obligations and would be owed
by a Borrower to the Bank under a Note (as defined in the Loan Agreement) or any
of the other Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving either Pledgor.
In the event any amount paid to a Lender on any Obligation is
subsequently recovered from such Lender in or as a result of any bankruptcy,
insolvency or fraudulent conveyance proceeding involving an obligor of the
Obligations other than the Pledgor, the Pledgor shall be liable to such Lender
for the amounts so recovered up to the fair market value of the Collateral
whether or not the Collateral has been released or the security interest
terminated. In the event the Collateral has been released or the security
interest terminated, the fair market value of the Collateral shall be
determined, at the Collateral Agent's option, as of the date the Collateral was
released, the security interest terminated, or said amounts were recovered.
B. USE OF PROCEEDS. The proceeds of any indebtedness or
obligation secured by the Collateral WILL NOT BE used directly or indirectly to
purchase or carry any "margin stock" as that term is defined in Regulation U of
the Board of Governors of the Federal Reserve System, or extend credit to or
invest in other parties for the purpose of purchasing or carrying any such
"margin stock," or to reduce or retire any indebtedness incurred for such
purpose or otherwise in a manner which would violate Regulations G, T or U.
4. PLEDGOR'S WARRANTIES. The Pledgor hereby represents and warrants to the
Collateral Agent as follows:
A. FINANCING STATEMENTS. Except as may be noted by schedule
attached hereto and incorporated herein by reference, no financing statement
covering the Collateral is or will be on file in any public office, except the
financing statements relating to this security interest, and no security
interest, other than the one herein created, has attached or been perfected in
the Collateral or any part thereof.
PLEDGE AGREEMENT PAGE 2
B. OWNERSHIP. The Pledgor owns, or will use the proceeds of any
loans by a Lender to become the owner of, the Collateral free from any setoff,
claim, restriction, lien, security interest or encumbrance except liens for
taxes not yet due and payable and the security interest hereunder.
C. POWER AND AUTHORITY. The Pledgor has full power and authority
to make this Agreement, and all necessary consents and approvals of any persons,
entities, governmental or regulatory authorities and securities exchanges have
been obtained to effectuate the validity of this Agreement.
5. PLEDGOR'S COVENANTS. Until full payment and performance of all of the
Obligations and termination or expiration of any obligation or commitment of any
Lender to make advances or loans to the Borrowers, or the Guaranty, Letter of
Credit or Hedging Agreement has not terminated, unless the Lenders otherwise
consent in writing:
A. OBLIGATION AND THIS AGREEMENT. The Pledgor shall perform all
of its agreements herein and in any other agreements between the Pledgor and a
Lender (subject to any grace period expressly set forth herein and therein).
B. OWNERSHIP OF COLLATERAL. The Pledgor shall defend the
Collateral against all claims and demands of all persons at any time claiming
any interest therein adverse to the Collateral Agent. The Pledgor shall keep the
Collateral free from all liens and security interests except those for taxes not
yet due and payable and the security interest hereby created.
C. COSTS OF THE COLLATERAL AGENT. The Pledgor shall pay all costs
necessary to obtain, preserve, perfect, defend and enforce the security interest
created by this Agreement, collect the Obligations, and preserve, defend,
enforce and collect the Collateral, including but not limited to taxes,
assessments, reasonable attorney's fees, legal expenses and expenses of sales.
Whether Collateral is or is not in the Collateral Agent's possession, and
without any obligation to do so and without waiving the Pledgor's default for
failure to make any such payment, the Collateral Agent at its option may (upon
notice to the Pledgor) pay any such costs and expenses and discharge
encumbrances on Collateral, and such payments shall be a part of the Obligations
and bear interest at the highest lawful rate set out in the Obligations. The
Pledgor agrees to reimburse the Collateral Agent on demand for any costs so
incurred.
D. INFORMATION AND INSPECTION. The Pledgor shall (i) promptly
furnish the Collateral Agent any information with respect to Collateral
requested by the Collateral Agent; (ii) allow the Collateral Agent or its
representatives to inspect and copy, or furnish the Collateral Agent or its
representatives with copies of, all records relating to the Collateral and the
Obligations; and (iii) promptly furnish the Collateral Agent or its
representatives with any other information the Collateral Agent may reasonably
request.
E. ADDITIONAL DOCUMENTS. The Pledgor shall sign and deliver any
papers furnished by the Collateral Agent which are necessary or desirable in the
judgment of the Collateral Agent to obtain, maintain and perfect the security
interest hereunder and to enable the Collateral Agent to comply with any federal
or state law in order to obtain or perfect the Collateral Agent's interest in
Collateral or to obtain proceeds of Collateral.
F. NOTICE OF CHANGES. The Pledgor shall notify the Collateral
Agent immediately of (i) any material adverse change in the Collateral, (ii) a
change in the Pledgor's place of business, (iii) a change in any matter
warranted or represented by the Pledgor in this Agreement, or in any of the Loan
Documents relating to the Obligations or furnished to a Lender pursuant to this
Agreement, and (iv) the occurrence of an Event of Default as defined herein.
PLEDGE AGREEMENT PAGE 3
G. POSSESSION OF COLLATERAL. The Pledgor shall deliver a copy of
this Agreement (or other notice acceptable to the Collateral Agent) to any
broker, financial intermediary, or any other person in possession of any of the
Collateral or on whose books the interest of the Pledgor in the Collateral
appears, and such delivery shall constitute notice to such person of the
Collateral Agent's security interest in the Collateral and shall constitute the
Pledgor's instruction to such person to note the Collateral Agent's security
interest on their books and records, or deliver to the Collateral Agent
certificates or other evidence of the Collateral promptly upon the Collateral
Agent's request. The Pledgor shall deliver all investment securities and other
instruments and documents which are a part of the Collateral and in the
Pledgor's possession to the Collateral Agent immediately, or if hereafter
acquired, immediately following acquisition, in a form suitable for transfer by
delivery or accompanied by duly executed instruments of transfer or assignment
in blank with signatures appropriately guaranteed in form and substance suitable
to the Collateral Agent.
H. CHANGE OF NAME/STATUS. The Pledgor shall not change its name,
change its status, use any trade name or engage in any business not reasonably
related to its business as presently conducted and in accordance with Loan
Documents.
I. POWER OF ATTORNEY. The Pledgor appoints the Collateral Agent
and any officer thereof as the Pledgor's attorney-in-fact with full power in the
Pledgor's name and on the Pledgor's behalf to do every act which the Pledgor is
obligated to do or may be required to do hereunder; however, (i) nothing in this
paragraph shall be construed to obligate the Collateral Agent to take any action
hereunder nor shall the Collateral Agent be liable to the Pledgor for failure to
take any action hereunder, and (ii) the Collateral Agent shall not take any
action under this paragraph unless an Event of Default (as defined in the Loan
Agreement) has occurred and is continuing. This appointment shall be deemed a
power coupled with an interest and shall not be terminable as long as any
Obligation is outstanding or any Lender has any commitment to make any loan to a
Borrower, or the Guaranty, any Letter of Credit or Hedging Agreement has not
terminated. Without limiting the generality of the foregoing, the Collateral
Agent shall have the right and power to receive, endorse and collect all checks
and other orders for the payment of money made payable to the Pledgor
representing any dividend, interest payment or other distribution payable in
respect of the Collateral or any part thereof.
J. OTHER PARTIES AND OTHER COLLATERAL. No renewal or extensions
of or any other indulgence with respect to the Obligations or any part thereof,
no modification of the documents(s) evidencing the Obligations, no release of
any security, no release of any person (including any maker, indorser, guarantor
or surety) liable on the Obligations, no delay in enforcement of payment, and no
delay or omission or lack of diligence or care in exercising any right or power
with respect to the Obligations or any security therefor or guaranty thereof or
under this Agreement shall in any manner impair or affect the rights of any
Lender or the Collateral Agent under any law, hereunder, or under any other
agreement pertaining to the Collateral. Neither the Collateral Agent nor any
Lender need file suit or assert a claim for personal judgment against any person
for any part of the Obligations or seek to realize upon any other security for
the Obligations, before the Collateral Agent forecloses or otherwise realizes
upon the Collateral. The Pledgor waives any right that can be waived to the
benefit of or to require or control application of any other security or
proceeds thereof.
K. WAIVERS BY PLEDGOR. The Pledgor waives notice of the creation,
advance, increase, existence, extension or renewal of, and of any indulgence
with respect to, the Obligations; waives presentment, demand, notice of
dishonor, and protest; waives notice of the amount of the Obligations
outstanding at any time, notice of any change in financial condition of any
person liable for the Obligations or any part thereof, notice of any event of
default, and all other notices respecting the Obligations; and agrees that
maturity of the Obligations and any part thereof may be accelerated, extended or
renewed one or more times by any Lender in its discretion, without notice to the
Pledgor. The Pledgor waives any right to require that any action be brought
against any other person or to
PLEDGE AGREEMENT PAGE 4
require that resort be had to any other security or to any balance of any
deposit account. The Pledgor further waives any right of subrogation or to
enforce any right of action against the other Borrower until the Obligations are
paid in full.
6. RIGHTS AND POWERS OF THE COLLATERAL AGENT.
A. GENERAL. The Collateral Agent, before or after an Event of
Default, without liability to the Pledgor may: take control of proceeds,
including stock received as dividends or by reason of stock splits; release
Collateral in its possession to the Pledgor, temporarily or otherwise; reject as
unsatisfactory any property hereafter offered by the Pledgor as Collateral; take
control of funds generated by the Collateral, such as cash dividends, interest
and proceeds, and exercise all other rights which an owner of such Collateral
may exercise, except the right to vote or dispose of Collateral before an event
of default; and at any time transfer any of the Collateral or evidence thereof
into its own name or that of its nominee. Neither any Lender nor the Collateral
Agent shall be liable for failure to collect any account or instruments, or for
any act or omission on the part of such Lender or the Collateral Agent, or any
officers, agents or employees of any of them, except for its or their own
willful misconduct or gross negligence. The foregoing rights and powers of the
Collateral Agent will be in addition to, and not a limitation upon, any rights
and powers of the Collateral Agent given by law, elsewhere in this Agreement, or
otherwise. Without limiting the generality of the foregoing, it is hereby
understood and agreed that (i) the Pledgor shall not have any right to withdraw
any Collateral now or hereafter on deposit in an Account, (ii) the Collateral
Agent shall have full dominion over and control of the Accounts (except as
otherwise expressly provided herein), and (iii) for purposes of Articles 8 and 9
of the Uniform Commercial Code, to the extent applicable, the Collateral Agent
has "control" over the Accounts and the securities from time to time held in the
Accounts.
B. CONVERTIBLE COLLATERAL. The Collateral Agent may present for
conversion any Collateral which is convertible into any other instrument or
investment security or a combination thereof with cash, but the Collateral Agent
shall not have any duty to present for conversion any Collateral unless it shall
have received from the Pledgor detailed written instructions to that effect at a
time reasonably far in advance of the final conversion date to make such
conversion possible.
7. DEFAULT.
A. EVENT OF DEFAULT. An event of default shall occur if an Event
of Default (as defined in the Loan Agreement) has occurred.
B. RIGHTS AND REMEDIES. If any Event of Default shall occur and
be continuing, then, in each and every such case, the Collateral Agent may,
without (a) presentment, demand, or protest, (b) notice of default, dishonor,
demand, non-payment, or protest, (c) notice by the Collateral Agent or any
Lender of intent to accelerate all or any part of the Obligations, (d) notice by
the Collateral Agent or any Lender of acceleration of all or any part of the
Obligations, or (e) notice of any other kind, all of which the Pledgor hereby
expressly waives (except for any notice required under this Agreement, any other
Loan Document or which may not be waived under applicable law), at any time
thereafter exercise and/or enforce any of the following rights and remedies, at
the option of the Lenders and the Collateral Agent:
i. ACCELERATION. The Obligations shall, at each Lender's
option, become immediately due and payable, and the
obligations, if any, of any Lender to permit further
borrowings under the Obligations shall at such
Lender's option immediately cease and terminate.
PLEDGE AGREEMENT PAGE 5
ii. LIQUIDATION OF COLLATERAL. Sell, or instruct any
agent or broker to sell, all or any part of the
Collateral in a public or private sale, direct any
agent or broker to liquidate all or any part of any
Account and deliver all proceeds thereof to the
Collateral Agent, and apply all proceeds to the
payment of any or all of the Obligations in such
order and manner as the Lenders shall, in their
discretion, choose.
iii. UNIFORM COMMERCIAL CODE. All of the rights, powers
and remedies of a secured creditor under the Uniform
Commercial Code ("UCC") as adopted in the
jurisdiction to which the Collateral Agent is subject
under this Agreement.
iv. RIGHT OF SET OFF. Without notice or demand to the
Pledgor, set off and apply against any and all of the
Obligations any and all deposits (general or special,
time or demand, provisional or final) and any other
indebtedness, at any time held or owing by a Lender
or by any affiliate or correspondent of a Lender to
or for the credit of the account of the Pledgor or
any guarantor or endorser of any of the Obligations.
v. INVESTMENT MANAGEMENT. Without notice or demand to
the Pledgor, terminate any investment management
agreement with respect to any of the Collateral.
The Pledgor specifically understands and agrees that any sale by the Collateral
Agent of all or part of the Collateral pursuant to the terms of this Agreement
may be effected by the Collateral Agent at times and in manners which could
result in the proceeds of such sale as being significantly and materially less
than might have been received if such sale had occurred at different times or in
different manners, and the Pledgor hereby releases the Collateral Agent and its
officers and representatives from and against any and all obligations and
liabilities arising out of or related to the timing or manner of any such sale.
If, in the opinion of the Collateral Agent, there is any question that a public
sale or distribution of any Collateral will violate any state or federal
securities law, the Collateral Agent may offer and sell such Collateral in a
transaction exempt from registration under federal securities law, and any such
sale made in good faith by the Collateral Agent shall be deemed "commercially
reasonable."
8. GENERAL.
A. PARTIES BOUND. The Collateral Agent's rights hereunder shall
inure to the benefit of its successors and assigns, and in the event of any
assignment or transfer of any of the Obligations or the Collateral, the
Collateral Agent thereafter shall be fully discharged from any responsibility
with respect to the Collateral so assigned or transferred, but the Collateral
Agent shall retain all rights and powers hereby given with respect to any of the
Obligations or Collateral not so assigned or transferred. All representations,
warranties and agreements of the Pledgor shall be binding upon the personal
representatives, heirs, successors and assigns of the Pledgor.
B. WAIVER. No delay of the Collateral Agent in exercising any
power or right shall operate as a waiver thereof; nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other power or right. No waiver by the Collateral
Agent of any right hereunder or of any default by the Pledgor shall be binding
upon the Collateral Agent unless in writing, and no failure by the Collateral
Agent to exercise any power or right hereunder or waiver of any default by the
Pledgor shall operate as a waiver of any other or further exercise of such right
or power or of any further default. Each right, power and remedy of the
Collateral Agent and the Lenders as provided for herein or in any of the Loan
Documents, or which shall now or hereafter exist at law or in equity or by
statute or otherwise, shall be cumulative and concurrent and shall be in
PLEDGE AGREEMENT PAGE 6
addition to every other such right, power or remedy. The exercise or beginning
of the exercise by the Collateral Agent or any Lender of any one or more of such
rights, powers or remedies shall not preclude the simultaneous or later exercise
by any such party of any or all other such rights, powers or remedies.
C. AGREEMENT CONTINUING. This Agreement shall constitute a
continuing agreement, applying to all future as well as existing transactions,
whether or not of the character contemplated at the date of this Agreement, and
if all transactions between the Lenders and Borrowers shall be closed at any
time, shall be equally applicable to any new transactions thereafter. Provisions
of this Agreement, unless by their terms exclusive, shall be in addition to
other agreements between the parties. Time is of the essence of this Agreement.
D. DEFINITIONS. Unless the context indicates otherwise,
definitions in the UCC apply to words and phrases in this Agreement; if UCC
definitions conflict, Article 9 definitions apply.
E. NOTICE. Notice shall be deemed reasonable if mailed postage
prepaid at least 5 days before the related action (or if the UCC elsewhere
specifies a longer period, such longer period) to the address of the Pledgor
given above. Each notice, request and demand shall be deemed given or made, if
sent by mail, upon the earlier of the date of receipt or five (5) days after
deposit in the U.S. Mail, first class postage prepaid, or if sent by any other
means, upon delivery.
F. MODIFICATIONS. No provision hereof shall be modified or
limited except by a written agreement expressly referring hereto and to the
provisions so modified or limited and signed by the Pledgor and the Collateral
Agent. The provisions of this Agreement shall not be modified or limited by
course of conduct or usage of trade.
G. PARTIAL INVALIDITY. The unenforceability or invalidity of any
provision of this Agreement shall not affect the enforceability or validity of
any other provision herein, and the invalidity or unenforceability of any
provision of any loan document to any person or circumstance shall not affect
the enforceability or validity of such provision as it may apply to other
persons or circumstances.
H. APPLICABLE LAW AND VENUE. This Agreement has been delivered in
the State of New York and shall be construed in accordance with the laws of that
State. It is performable by the Pledgor in the county or city of the Collateral
Agent's address set out above and the Pledgor expressly waives any objection as
to venue in any such location. Wherever possible each provision of this
Agreement shall be interpreted in such 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 provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Agreement.
I. FINANCING STATEMENT. To the extent permitted by applicable
law, a carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Collateral shall be sufficient as a financing
statement.
J. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."),
PLEDGE AGREEMENT PAGE 7
AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE
SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED
IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT, OR
DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE
COUNTY OF THE PLEDGOR'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION
SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE
STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT,
AGREEMENT, OR DOCUMENT; OR (II) BE A WAIVER BY THE BANK OF THE PROTECTION
AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW;
OR (III) LIMIT THE RIGHT OF THE BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES
SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR
PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF
POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY EXERCISE SUCH SELF
HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER
THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN
ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A
WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
K. CONTROLLING DOCUMENT. To the extent that this Agreement
conflicts with or is in any way incompatible with any other loan document
concerning the Obligation, any promissory note shall control over any other
document, and if such promissory note does not address an issue, then each other
loan document shall control to the extent that it deals most specifically with
an issue.
L. EXECUTION UNDER SEAL. This agreement is being executed under
seal by the Pledgor.
M. NOTICE OF FINAL AGREEMENT. This written Agreement and any
other related loan documents constitute the final agreement between the parties,
and supersede all prior written agreements and all prior, contemporaneous or
subsequent oral agreements of the parties regarding all issues addressed in the
loan documents.
PLEDGE AGREEMENT PAGE 8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
BANK/SECURED PARTY: PLEDGOR:
BANK OF AMERICA, N.A., AS COLLATERAL AGENT XXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxxx (Seal) By: /s/ Xxxxxx Xxxxx (Seal)
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Name: Xxxx X. Xxxxxx Name: Xxxxxx Xxxxx
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Title: Senior Vice President Title: General Partner
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PLEDGE AGREEMENT PAGE 9
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
Sworn to, subscribed, sealed and acknowledged before me, the
undersigned authority, on the __ day of May___, 2001 in the state and county
aforesaid, by _________________, to me known, who personally appeared before me.
Notary: ____________________________________
Print Notary's Name: _______________________
[NOTARIAL SEAL] Notary Public, State of ____________________
My commission expires: _____________________
PLEDGE AGREEMENT PAGE 10
