THE BANK OF NEW YORK
HYPOTHECATION AGREEMENT
00 Xxxx Xx, Xxx Xxxx December 23, 1996
The undersigned (jointly and severally, if more than one) hereby certifies
to THE BANK OF NEW YORK (hereinafter referred to as the "Bank") that the
undersigned has good and valid legal title to the following described securities
and/or personal property, free and clear of all liens, charges, security
interests and encumbrances of any nature whatsoever; (if collateral is other
than securities, describe in detail in paragraph form.)
Value on
Description of Security No. of Shares or Bonds Serial Number(s) This Date
Arista 178,400
(Which together with all products and proceeds thereof, accessions and
additions thereto and substitutions therefor shall hereinafter be collectively
referred to as the "Collateral").
The undersigned (jointly and severally, if more than one) hereby agrees:
(a) That Xxxxxxx & Xxx Xxxxxx of New York, NY (hereinafter referred to as
the "Borrower") is authorized to pledge the Collateral to the Bank for the
Borrower's account or otherwise.
(b) That when so pledged, the Collateral shall secure, and that a security
interest in the Collateral shall exist and will continue to exist in the Bank's
favor as security for, any and all loans and/or advances at any time or from
time to time made by the Bank to the Borrower, any present or future
indebtedness or other obligations of the Borrower to the Bank, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, howsoever evidenced or acquired and whether joint, several or
joint and several, and any renewals or extensions thereof (all of which shall
hereinafter be referred to as the "Obligations").
(c) That all agreements which the Borrower has made or may make with the
Bank regarding the Collateral shall be applicable thereto to the same extent as
if such Collateral were owned by the Borrower, that the undersigned hereby
expressly ratifies, consents to and adopts any and all agreements which the
Borrower has made or may hereafter make with the Bank with respect to the
Collateral.
(d) That any additions to, substitutions for, accessions to and proceeds
of the Collateral in any form whatsoever which shall come into the possession of
either the undersigned or the Borrower shall be held in trust for the Bank, and
shall be delivered to the Bank upon receipt thereof.
(e) That the Bank may deliver the Collateral to the Borrower or make such
other disposition thereof as the Borrower may direct.
(f) That the Bank may sell, assign and deliver the whole or any part of
the Collateral without limitation upon it as to priority or preference between
the Collateral and any other collateral pledged with it as security for any of
the Obligations, including any collateral belonging solely to the Borrower, at
any broker's exchange or elsewhere, at public or private sale, either for cash
or credit or for future delivery, in order to satisfy any of the Obligations
should default by the Borrower occur at any time with respect thereto, and that
on any such sale, the Bank, its assigns, officers or nominees may purchase the
whole or any part of the Collateral free from any right of redemption on the
part of the undersigned, which right is hereby expressly waived.
(g) That, without notice to or consent of the undersigned, the Bank may
(i) release any endorser, guarantor or any collateral given to secure any of the
Obligations and (ii) at any time and from time to time, extend the time of
payment or renew in whole or in part or grant other indulgences with respect to
any of the Obligations for such time or times as the Bank may determine, and all
of the provisions and authorizations contained herein shall apply to all such
renewals and extensions.
(h) That with respect to the Collateral, the Bank shall be under no duty
to send notices, perform services, exercise any rights of collection,
enforcement, conversion or exchange, vote, pay for insurance, taxes or other
charges or take any action of any kind in connection with the management thereof
and its only duty with respect thereto shall be to use reasonable care in its
custody and preservation while in its possession, which shall not include any
steps necessary to preserve rights against prior parties.
(i) That the undersigned waives and agrees to waive (except as prohibited
by applicable statute) trial by jury and the right to interpose any counterclaim
or offset of any nature and description in any litigation between the Bank and
the undersigned, on any matters whatsoever arising out of or in any way
connected with this Agreement and, also, agrees that the venue of any such
litigation shall be the county in which the Bank's office making the loans or
other accommodation to the Borrower is located.
(j) That the authorizations herein contained shall remain in full force
and effect until receipt by the Bank of written notice from the undersigned of
the revocation or termination hereof; provided, however, that no revocation or
termination hereof shall affect in any manner the Bank's rights arising
hereunder with respect to any Obligations (or any extensions or renewals
thereof) which shall have been created, contracted, assumed or incurred prior to
actual receipt by the Bank, at the Bank's office making the loans or other
accomodations to the Borrower is located, of written notice of such revocation
or termination, or any Obligations (or any extensions or renewals thereof) which
shall have been created, contracted, assumed or incurred after actual receipt
of such written notice pursuant to any agreement entered into by the Bank prior
to actual receipt of such written notice.
(k) To hold the Bank harmless in its reliance hereon prior to its actual
receipt of written notice of revocation or termination hereof, whether or not or
all the authorizations herein contained may have been theretofore terminated by
operation of law or otherwise.
(l) that any action permitted hereby or under the terms and provisions of
any agreements, instruments or other documents relating to any of the
Obligations may be taken without notice to the undersigned, and the undersigned
expressly waives notice of any amount due or claimed to be due from Borrower,
demand for payment, notice of default in the payment of any Obligations, notice
of sale or other realization upon the Collateral, notice of the time and place
of any such sale, and any other notice or demand otherwise required to be given
to or made upon the Borrower or the undersigned by law and any choice or demand
which the Bank may elect to give to or make upon the Borrower, all of which are
hereby expressly waived.
(m) That the undersigned hereby waives any rights which the undersigned
may have under Section 9-112 of the Uniform Commercial Code and waives any
notice of the acceptance of or reliance upon any of the provisions of this
Agreement by the Bank.
(n) That no modifications or waivers of any of the foregoing provisions
hereof shall be effective unless expressly stated in writing and singed by or on
behalf of the Bank and then only in the specific instance for which given. Each
reference herein to the undersigned shall be deemed to include the heirs,
executors, legal representatives, successors and assigns of the undersigned.
(o) That if at any time it is necessary in the opinion of counsel to the
Bank that any securities held as Collateral (the "Pledged Securities") be
registered under the Securities Act of 1933, as amended, or that an indenture
with respect thereto be qualified under the Trust Indenture Act of 1939 in order
to permit the sale or other disposition of the Pledged Securities, the Borrower
shall, at the Bank's request and at the expense of the Borrower, use the best
efforts of the Borrower to promptly cause the registration of the Pledged
Securities and the qualification of such indenture and continue such
registration and qualification as long as deemed appropriate by the Bank.
(p) That this Agreement shall be interpreted under and construed in
accordance with the laws of the State of New York.
(q) That every provision of this Agreement is intended to be severable; if
any term or provision of this Agreement shall be invalid, illegal or
unenforceable for any reason whatsoever, the validity, legality or
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned on
this __ day of 19__
NAME Xxxxx X. Xxxxxx M.D. ADDRESS 0000 Xxxxxxxx Xxxxx
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SIGNATURE /s/ Xxxxx X. Xxxxxx M.D. Xxxxxxxxx, XX 00000
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NAME _____________________________ ADDRESS ___________________________
SIGNATURE ________________________ __________________________________
STATE OF }
} S.S.
COUNTY OF }
On this 31st day of December, 1996, before me personally appeared Xxxxx X.
Xxxxxx to me known, and known to me to be the individual(s) described in and who
executed the foregoing instrument and that such individual(s) duly acknowledge
to me that such individual(s) executed same.
/s/ Xxxxx X. Xxxxxx
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NOTARY PUBLIC
XXXXX X. XXXXXX
Notary Public, State of New York
No. 01TO5058328
Qualified in Kings County
Commission Expires April 6, 1998
ACKNOWLEDGMENT BY BORROWER
The undersigned, the Borrower referred to in the foregoing Hypothecation
Agreement, hereby accepts notice of the execution and delivery thereof and of
the terms and provisions thereof and agrees to be bound by any provisions
thereof applicable to it. The Borrower hereby agrees that the Bank may at any
time or from time to time accept from the person signing said agreement payment
with respect to all or any part of the Obligations as defined in said Agreement
and/or transfer or assign any and all instruments evidencing such Obligations
and the Collateral securing the same to said person or anyone else, all without
recourse to or warranty by the Bank. Any action permitted hereby or under the
terms and provisions of said Agreement or of any instruments evidencing any of
the Obligations may be taken without notice to the undersigned.
BORROWER NAME Xxxxxxx X. Xxxxxx DATE 12/31/96
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SIGNATURE /s/ Xxxxxxx X. Xxxxxx
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BORROWER NAME Xxx Xxxxxx DATE 12/31/96
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SIGNATURE /s/ Xxx Xxxxxx
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