Exhibit 10.6
[JPMORGAN LOGO]
MIDDLE MARKET BANKING
PLEDGE AGREEMENT
In consideration of one of more loans, letters of credit or other
extensions of credit or financial accommodations extended by JPMORGAN CHASE BANK
or any of its subsidiaries or affiliates (the "Lender") to the undersigned (or,
if a different person or entity is set forth in the definition of "Liabilities"
below, to such person or entity), the undersigned and the Lender agree as
follows:
1. DEFINITIONS.
"Account Assets" means all Deposits, Securities, securities entitlements
and any other assets held in trust, or in any custody, subcustody, safekeeping,
investment management accounts, or other accounts of the undersigned with the
Lender or any other custodian, trustee or Clearing System or held by any
intermediary (all of which shall be considered "financial assets" under the
UCC).
"Clearing System" means the Depository Trust Company ("DTC") and such other
clearing or safekeeping system that may from time to time be used in connection
with transactions relating to or the custody of any Securities, and any
depository for any of the foregoing.
"Collateral" means: (i) the Deposits, Securities and Account Assets (as
defined below) that are listed on Exhibit A; (ii) all additions to, and
proceeds, renewals, investments, reinvestments and substitutions of the
foregoing, whether or not listed on Exhibit A; (iii) all certificates, receipts
and other instruments evidencing any of the foregoing. Notwithstanding anything
to the contrary in this Agreement, "Collateral" shall not include any securities
issued by an affiliate of the Lender, including any of the X.X. Xxxxxx family of
funds. The Collateral pledged pursuant to this Agreement shall secure only the
liabilities of the undersigned pursuant to the terms of a certain guaranty
executed by the undersigned in favor of the Lender of even date hereof.
"Deposits" means the deposits of the undersigned with the Lender (whether
or not held in trust, or in any custody, subcustody, safekeeping, investment
management accounts, or other accounts of the undersigned with the Lender).
"Liabilities" means all obligations and liabilities of LEVCOR
INTERNATIONAL, INC. to the Lender pursuant to that certain Promissory Note dated
April , 2002 with the principal amount of $3,000,000, made by it payable to
the Lender, and any renewals, extensions or modifications thereof, of whatever
nature, whether now existing or hereafter incurred or acquired, whether matured
or unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, primary or secondary, sole, joint, several or joint and several,
secured or unsecured, arising by operation of law or otherwise, and all costs
and expenses incurred by the Lender in connection with the Collateral, this
Agreement or any Liability Document.
"Liability Document" means any instrument, agreement or document
evidencing, governing or delivered in connection with the Liabilities.
"Securities" means the stocks, bonds and other instruments and securities
held in trust or in any custody, subcustody, safekeeping, investment management
accounts now or hereafter maintained by the undersigned with Xxxxxx Brothers,
Inc. (the "Intermediary") in securities account number 834-27032-15-677.
"UCC" means the Uniform Commercial Code in effect from time to time in the
State of New York. Unless the context otherwise requires, all terms used in this
Agreement which are defined in the UCC will have the meanings stated in the UCC.
2. GRANT OF SECURITY INTEREST.
As security for the payment of all the Liabilities, the undersigned
pledges, transfers and assigns to the Lender and grants to the Lender a security
interest in and right of setoff against, the Collateral.
3. AGREEMENTS OF THE UNDERSIGNED AND RIGHTS OF THE LENDER.
The undersigned agrees as follows and irrevocably authorizes the Lender to
exercise the rights listed below, at its option, for its own benefit, either in
its own name or in the name of the undersigned, and appoints the Lender as its
attorney-in-fact to take all action permitted under this Agreement.
(a) DEPOSITS: The Lender may: (i) renew the Deposits on terms and for
periods the Lender deems appropriate; (ii) demand, collect, and receive payment
of any monies or proceeds due or to become due under the Deposits; (iii) execute
any instruments required for the withdrawal or repayment of the Deposits; (iv)
in all respects deal with the Deposits as the owner; provided that, as to (ii)
through (iv), until the occurrence of a Default (as defined in Section 7 below),
the Lender will only take that action if, in its judgment, failure to take that
action would impair its rights under this Agreement.
(b) SECURITIES: The Lender may: (i) transfer to the account of the Lender
any Securities whether in the possession of, or registered in the name of, any
Clearing System or held otherwise; (ii) transfer to the account of the Lender
with any Federal Reserve Lender any Securities held in book entry form with any
such Federal Reserve Lender; (iii) transfer to the name of the Lender or its
nominee any Securities registered in the name of the undersigned and held by the
Lender or the Intermediary and complete and deliver any necessary stock powers
or other transfer instruments; and (iv) transfer to the account of the Lender
any Securities registered in the name of the undersigned and held by the
Intermediary; provided that until the occurrence of a Default, the Lender will
only take that action if, in its judgment, failure to take that action would
impair its rights under this Agreement.
The undersigned grants to the Lender an irrevocable proxy to vote any and
all Securities and give consents, waivers and ratifications in connection with
those Securities upon and after the occurrence of a Default.
All payments, distributions and dividends in securities, property or cash
shall be paid directly to and, at the discretion of the Lender, retained by the
Lender and held by it, until applied as provided in this Agreement, as
additional Collateral; provided that until the occurrence of a Default, interest
on Deposits and cash dividends on Securities paid in the ordinary course will be
paid to the undersigned.
(c) GENERAL: The Lender may, in its name, or in the name of the
undersigned: (i) execute and file financing statements under the UCC or any
other filings or notices necessary or desirable to create,
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perfect or preserve its security interest, all without notice (except as
required by applicable law and not waivable) and without liability except to
account for property actually received by it; (ii) demand, xxx for, collect or
receive any money or property at any time payable or receivable on account of or
in exchange for, or make any compromise or settlement deemed desirable with
respect to, any item of the Collateral (but shall be under no obligation to do
so); (iii) make any notification (to the issuer of any certificate or Security,
or otherwise, including giving any notice of exclusive control to the
intermediary) or take any other action in connection with the perfection or
preservation of its security interest or any enforcement of remedies, and retain
any documents evidencing the title of the undersigned to any item of the
Collateral; (iv) issue entitlement orders with respect to any of the Collateral
to any Intermediary without the consent of the undersigned.
The undersigned agrees that it will not file or permit to be filed any
financing or like statement with respect to the Collateral in which the Lender
is not named as the sole secured party, consent or be a party to any securities
account control agreement or other similar agreement with any Intermediary (an
"Account Control Agreement") to which the Lender is not also a party or sell,
assign, or otherwise dispose of, grant any option with respect to, or pledge, or
otherwise encumber the Collateral. Unless otherwise expressly agreed, the
undersigned will not trade or withdraw any Account Assets without the Lender's
express written consent. At the request of the Lender the undersigned agrees to
do all other things which the Lender may deem necessary or advisable in order to
perfect and preserve the security interest and to give effect to the rights
granted to the Lender under this Agreement or enable the Lender to comply with
any applicable laws or regulations. Notwithstanding the foregoing, the Lender
does not assume any duty with respect to the Collateral and is not required to
take any action to collect, preserve or protect its or the undersigned's rights
in any item of the Collateral. The undersigned releases the Lender and agrees to
hold the Lender harmless from any claims, causes of action and demands at any
time arising with respect to this Agreement, the use or disposition of any item
of the Collateral or any action taken or omitted to be taken by the Lender with
respect thereto. The undersigned shall not change its name, jurisdiction of
incorporation or organization, place of business, chief executive office or
principal residence (as applicable) without providing the Lender at least 45
days' advance written notice of and details of such change.
The rights granted to the Lender pursuant to this Agreement are in
addition to the rights granted to the Lender in any custody, investment
management, trust, Account Control Agreement or similar agreement. In case of
conflict between the provisions of this Agreement and of any other such
agreement, the provisions of this Agreement will prevail.
4. LOAN VALUE OF THE COLLATERAL.
The undersigned agrees that all times the amount of the Liabilities may not
exceed the aggregate Loan Value of the Collateral. The undersigned will, at the
Lender's option, either supplement the Collateral or make any payment under the
Liabilities to the extent necessary to ensure compliance with this provision or
the Lender may liquidate Collateral to the extent necessary to ensure compliance
with this provision. "Loan Value" means the value assigned by the Lender from
time to time, in its sole reasonable discretion, to each item of the Collateral.
5. CURRENCY CONVERSION.
For calculation purposes, any currency in which the Collateral is
denominated (the "Collateral Currency") will be converted into the currency of
the Liabilities (the "Liability Currency") at the spot rate of exchange for the
purchase of the Liability Currency with the Collateral Currency quoted by the
Lender at such place as the Lender deems appropriate (or, if no such rate is
quoted on any relevant date, estimated by
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the Lender on the basis of the Lender's last quoted spot rate) or another
prevailing rate that the Lender deems more appropriate.
6. REPRESENTATIONS AND WARRANTIES.
The undersigned represents and warrants: (a) the undersigned is the sole
owner of the Collateral; (b) the Collateral is free of all encumbrances except
for the security interest in favor of the Lender created by this Agreement; (c)
no authorizations, consents or approvals and no notice to or filing with any
governmental authority or regulatory body is required for the execution and
delivery of this Agreement or the exercise by the Lender of its rights and
remedies; (d) the execution, delivery and performance of this Agreement will not
violate any provisions of applicable law, regulation or order and will not
result in the breach of, or constitute a default, or require any consent under,
any agreement, instrument or document to which the undersigned is a party or by
which it or any of its property may be bound or affected; (e) as to Deposits and
Account Assets, the undersigned has not withdrawn, canceled, been repaid or
redeemed all or any part of any Deposits or Account Assets and there is no such
pending application; (f) as to Securities, the Securities have been duly
authorized and are fully paid and non-assessable, there are no restrictions on
pledge of the Securities by the undersigned nor on sale of the Securities by the
Lender (whether pursuant to securities laws or regulations or shareholder,
lock-up or other similar agreements) and the Securities are fully marketable by
the Lender as pledgee, without regard to any holding period, manner of sale,
volume limitation, public information or notice requirements; (g) if the
undersigned is a corporation, partnership, limited liability company, limited
liability partnership or trust, it is duly organized and validly existing under
the laws of the jurisdiction of its organization, it has full power and
authority to execute, deliver and perform this Agreement, the execution,
delivery and performance have been duly authorized, will not conflict with any
provisions of its governing instruments and the Agreement is a legal, valid and
binding obligation of the undersigned, enforceable against it in accordance with
its terms.
7. DEFAULT.
Each of the following is a default ("Default")
(i) any sum payable on any of the Liabilities is not paid when due; (ii)
any representation and warranty of the undersigned or other person liable on or
for any of the Liabilities ("Liability Party", which term, if the undersigned is
a guarantor or providing collateral security for the Liabilities of another
person or entity, includes such person or entity) in this Agreement or in any
Liability Document shall prove to have been incorrect in any material respect on
or after the date hereof; (iii) the undersigned or any Liability Party fails to
perform or observe any term, covenant, or condition under this Agreement or
under any Liability Document or any other default, event of default or similar
event so specified or defined under any Liability Document shall occur; (iv) any
indebtedness of the undersigned or of any Liability Party or interest or premium
thereon is not paid when due (whether by scheduled maturity, acceleration,
demand or otherwise); (v) the undersigned or any Liability Party; (a) is
generally not, or is unable to, or admits in writing its inability to, pay its
debts as its debts become due; (b) makes an assignment for the benefit or
creditors, or petitions or applies to any tribunal for the appointment of a
custodian, receiver or trustee for its or a substantial part of its assets; (c)
commences any proceeding under any law relating to bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation; (d) has any such
petition filed, or any such proceeding has been commenced against it, in which
an adjudication is made or order for relief is entered or which remains
undismissed for a period of 30 days; (e) has a receiver, custodian or trustee
appointed for all or a substantial part of its property; or (f) takes any
action effectuating, approving or consenting to any of the events described in
this section (v); (vi) the undersigned or any Liability Party shall die,
dissolve or for any reason cease to be in existence or merge or consolidate; or
if the undersigned or any
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Liability Party is a partnership, limited liability partnership or limited
liability company, any general partner, partner or member, respectively, shall
die, dissolve or for any reason cease to be in existence or cease to be a
partner or member, as the case may be, or shall merge or consolidate; (vii) the
undersigned or any Liability Party is involved in a proceeding relating to, or
which may result in, a forfeiture of all or a substantial part of the
undersigned's or any Liability Party's assets or a material judgment is entered
against the undersigned or any Liability Party; (viii) there is, in the opinion
of the Lender, a material adverse change in the business, prospects, assets,
operations or condition, financial or otherwise, of the undersigned or any
Liability Party; then, unless and to the extent that the Lender otherwise
elects, the Lender will be entitled to exercise any of the rights and remedies
under this Agreement.
8. REMEDIES.
On a Default, the Lender will have the rights and remedies of a secured
party after default under the UCC and the other rights granted to the Lender
under this Agreement, and, without limiting the foregoing, is expressly
entitled, without notice or demand, to sell, lease, license, collect, redeem,
offset, setoff, debit, charge or otherwise dispose of or liquidate into cash,
publicly or privately any such Collateral and/or to apply it or the proceeds
thereof to repay any of the Liabilities in such amounts as it in its sole
discretion may select (regardless of whether any such Liabilities are
contingent, unliquidated or unmatured or whether the Lender has any other
recourse to the undersigned or any Liability Party or any other collateral or
assets). The Lender may modify or disclaim any warranties or other
representations or recourse in connection with any such disposition or
liquidation. The Lender may exercise its rights without regard to any premium
or penalty from liquidation of any Collateral and without regard to the
undersigned's basis or holding period for any Collateral.
The Lender may sell in the Borough of Manhattan, New York City, or
elsewhere, in one or more sales or parcels, at the price as the Lender deems
best, for cash or on credit or for other property, for immediate or future
delivery, any item of the Collateral, at any broker's board or at public or
private sale, in any reasonable manner permissible under the UCC (except that,
to the extent permissible under the UCC, the undersigned waives any
requirements of the UCC) and the Lender or anyone else may be the purchaser of
the Collateral and hold it free from any claim or right including, without
limitation, any equity of redemption of the undersigned, which right the
undersigned expressly waives. The Lender may in its sole discretion elect to
conduct any sale (and related offers) of any Collateral in such a manner as to
avoid the need for registration or qualification thereof under any Federal or
state securities laws, that such conduct may include restrictions (including as
to potential purchasers) and other requirements (such as purchaser
representations) which may result in prices or other terms less favorable than
those which might have been obtained through a public sale not subject to such
restrictions and requirements and that any offer and sale so conducted shall be
deemed to have been made in a commercially reasonable manner.
The Lender may also, in its sole discretion: (i) convert any part of the
Collateral Currency into the Liability Currency; (ii) hold any monies or
proceeds representing the Collateral in a cash collateral account in the
Liability Currency or other currency that the Lender reasonably selects;
(iii) invest such monies or proceeds on behalf of the undersigned; and (iv)
apply any portion of the Collateral, first, to all costs and expenses of the
Lender, second, to the payment of interest on the Liabilities and any fees or
commissions to which the Lender may be entitled, third, to the payment of
principal of the Liabilities, whether or not then due, and fourth, to the
undersigned.
The undersigned will pay to the Lender all expenses (including reasonable
attorneys' fees and legal expenses incurred by the Lender and the allocated
costs of its in-house counsel) in connection with the
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exercise of any of the Lender's rights or obligations under this Agreement or
the Liability Documents. The undersigned will take any action requested by
the Lender to allow it to sell or dispose of the Collateral. Notwithstanding
that the Lender may continue to hold Collateral and regardless of the value of
the Collateral, the undersigned will remain liable for the payment in full of
any unpaid balance of the Liabilities.
9. JURISDICTION.
The undersigned consents to the non-exclusive jurisdiction of the State and
Federal courts sitting in the City of New York and agrees that suit may be
brought against the undersigned in those courts or in any other jurisdiction
where the undersigned or any of its assets may be found, and the undersigned
irrevocably submits to the jurisdiction of those courts. The undersigned
consents to the service of process by mailing copies of process to the
undersigned at its most recent mailing address to the records of the Lender.
The undersigned further agrees that any action or proceeding brought against
the Lender may be brought only in a New York State or United States Federal
court sitting in New York County.
The undersigned agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdiction
by suit or proceeding in such state and hereby waives any defense on the basis
of an inconvenient forum. Nothing herein shall affect the right of the Lender
to serve legal process in any other manner permitted by law or affect the
right of the Lender to bring any action or proceeding against the undersigned
or its property in the courts of any other jurisdiction.
10. WAIVER OF JURY TRIAL.
THE UNDERSIGNED AND THE LENDER EACH WAIVE ANY RIGHT TO JURY TRIAL.
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11. NOTICES.
Unless otherwise agreed in writing, notices may be given to the Lender and
the undersigned at their telecopier numbers (confirmed by telephone to their
telephone numbers) or addresses listed on the signature page of this Agreement,
or such other telecopier (and telephone) number or addresses communicated in
writing by either party to the other. Notices to the Lender are effective on
receipt.
12. MISCELLANEOUS.
(a) The Lender may assign any of the Collateral and any of its interests
in this Agreement (and may assign the Liabilities to any party) and will be
fully discharged from all responsibility as to the assigned Collateral. That
assignee will have all the powers and rights of the Lender hereunder, but only
as to the assigned Collateral.
(b) No amendment or waiver of any provision of this Agreement nor consent
to any departure by the undersigned will be effective unless it is in writing
and signed by the undersigned and the Lender and will be effective only in that
specific instance and for that specific purpose. No failure on the part of the
Lender to exercise, and no delay in exercising, any right will operate as a
waiver or proclude any other or further exercise or the exercise of any other
right.
(c) The rights and remedies in this Agreement are cumulative and not
exclusive of any rights and remedies which the Lender may have under law or
under other agreements or arrangements with the undersigned or any Liability
Party.
(d) The provisions of this Agreement are intended to be severable. If for
any reason any provision of this Agreement is not valid or enforceable in whole
or in part in any jurisdiction, that provision will, as to
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that jurisdiction, be ineffective to the extent of that invalidity or
unenforceability without in any manner affecting the validity or enforceability
in any other jurisdiction or the remaining provisions of this Agreement.
(e) The term "undersigned" will include all signatories, if more than one,
and the terms, covenants and conditions and the representations and warranties
will be joint and several. The term "undersigned" will also include the heirs,
executors, administrators, assigns and successors of the undersigned.
(f) The undersigned hereby waives presentment, notice of dishonor and
protest of all instruments included in or evidencing the Liabilities or the
Collateral and any other notices and demands, whether or not relating to those
instruments.
(g) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has signed this Agreement this 30 day of
April, 2002.
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
Address for notices:
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c/o Levcor International, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier:
Telephone:
ACCEPTED:
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JPMORGAN CHASE BANK
By: /s/ Xxxx Zaire
-----------------------
Name: Xxxx Zaire
Title: V.P.
Address for notices to the Lender:
---------------------------------
JPMorgan Chase Bank
Middle Market Banking
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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EXHIBIT A
DESCRIPTION OF THE COLLATERAL
ALL ASSETS HELD OR TO BE HELD IN THE FOLLOWING CUSTODY OR SUBCUSTODY ACCOUNTS,
SAFEKEEPING ACCOUNTS, INVESTMENT MANAGEMENT ACCOUNTS AND/OR OTHER ACCOUNT WITH
INTERMEDIARY:
Type of Account Account Number Entity/Location
--------------- -------------- ---------------
Investment 834-27032-15 677 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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