Exhibit 10.33
FORM OF PLEDGE AGREEMENT
This PLEDGE AGREEMENT is made and entered into as of _____________ by
_________________ (the "Pledgor") in favor of GP STRATEGIES CORPORATION ("GP"
and, together with any assignee of the Note hereafter referred to, the "Secured
Party").
WHEREAS, on the date hereof, GP is lending the Pledgor the amount of
$____________, evidenced by a promissory note, dated the date hereof (the
"Note");
WHEREAS, the Pledgor will use such funds to pay a portion of the
purchase price for ________ shares (the "Pledged Shares") of the Class B Capital
Stock of GP; and
WHEREAS, as a condition to the making of such loan, GP has required the
Pledgor to pledge the Pledged Shares as security for the indebtedness
represented by the Note;
NOW, THEREFORE, in consideration of the foregoing premises and to
induce the Lender to loan the amount referred to above, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby agrees with the Secured Party as follows:
Section 1. Pledge. As security for the payment and performance when due
(whether upon demand or otherwise) of the indebtedness represented by, and any
other amounts payable by Pledgor under or in connection with, the Note, the
Pledgor hereby pledges, assigns, transfers and grants to the Secured Party a
lien on and security lien in and to all of the right, title and interest of the
Pledgor in and to the following property, in each case whether now existing or
hereafter acquired (collectively, the "Pledged Collateral"):
(a) the Pledged Shares, including the certificates representing
the Pledged Shares and any interest of the Pledgor in the entries on
the books of any financial intermediary pertaining to the Pledged
Shares;
(b) all dividends, cash, options, warrants, rights,
instruments, distributions, returns of capital, income, profits and
other property, interests or proceeds from time to time received,
receivable or otherwise distributed to the Pledgor in respect of or in
exchange for any or all of the Pledged Shares (collectively,
"Distributions"); and
(c) all proceeds (as defined under the Uniform Commercial Code
as in effect in any relevant jurisdiction (the "UCC") or under other
relevant law) of any and all of the foregoing.
Section 2. No Release. Nothing set forth in this Agreement shall
relieve the Pledgor from the performance of any term, covenant, condition or
agreement on the Pledgor's part to be performed or observed under or in respect
of any of the Pledged Collateral or from any liability to any individual,
corporation, partnership or other legal entity ("Persons") under or in respect
of any of the Pledged Collateral or shall impose any obligation on the Secured
Party to perform or observe any such term, covenant, condition or agreement on
the Pledgor's part to be so performed or observed or shall impose any liability
on the Secured Party for any act or omission on the part of the Pledgor relating
thereto or for any breach of any representation or warranty on the part of the
Pledgor contained in this Agreement or the Note or under or in respect of the
Pledged Collateral or made in connection herewith or therewith.
Section 3. Delivery of Pledged Collateral. All certificates, agreements
or instruments representing or evidencing the Pledged Collateral, to the extent
not previously delivered to the Secured Party, shall immediately upon receipt
thereof by the Pledgor be delivered to and held by or on behalf of the Secured
Party pursuant hereto. All Pledged Collateral shall be in suitable form for
transfer by delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank (with signatures appropriately guaranteed), all
in form and substance satisfactory to the Secured Party. The Secured Party shall
have the right, at any time upon the occurrence and during the continuance of an
Event of Default (as defined in the Note) and without notice to the Pledgor, to
endorse, assign or otherwise transfer to or to register in the name of the
Secured Party or any of its nominees any or all of the Pledged Collateral. In
addition, upon the occurrence and during the continuance of an Event of Default,
the Secured Party shall have the right at any time to exchange certificates
representing or evidencing Pledged Collateral for certificates of smaller or
larger denominations.
Section 4. Supplements, Further Assurances. The Pledgor agrees that at
any time and from time to time, at the sole cost and expense of the Pledgor, the
Pledgor shall promptly execute and deliver all further instruments and
documents, including, without limitation, supplemental or additional UCC-1
financing statements, and take all further action that may be necessary or that
the Secured Party may reasonably request, in order to perfect and protect the
pledge, security interest and lien granted or purported to be granted hereby or
to enable the Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral.
Section 5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) No Liens. The Pledgor is, and at the time of any delivery
of any Pledged Collateral to the Secured Party pursuant to Section 3
will be, the sole legal and beneficial owner of the Pledged Collateral,
and all such Pledged Collateral is on the date hereof, and will be, so
owned by the Pledgor free and clear of any lien except for the lien
created by this Agreement.
(b) Authorization, Enforceability. The Pledgor has full
authority and legal right to pledge and grant a security interest
pursuant to this Agreement in all the Pledged Collateral, and this
Agreement constitutes the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms.
(c) No Consents, etc. No consent of any party and no consent,
authorization, approval, or other action by, and no notice to or filing
with, any governmental authority or regulatory body or other Person is
required for (i) the pledge by the Pledgor of the Pledged Collateral
pursuant to this Agreement or the execution, delivery or performance of
this Agreement by the Pledgor, (ii) the exercise by the Secured Party
of the voting or other rights provided for in this Agreement, or (iii)
the exercise by the Secured Party of the remedies in respect of the
Pledged Collateral pursuant to this Agreement.
(d) Delivery of Pledged Collateral; Filings. The delivery to
the Secured Party of all certificates representing the Pledged Shares
creates a valid and perfected first priority security interest in all
of the Pledged Collateral securing the payment of the Secured
Obligations pursuant to the UCC in effect in each applicable
jurisdiction.
Section 6. Voting Rights; Distributions; etc. (a) So long as no Event
of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Shares or
any part thereof for any purpose not inconsistent with the terms or
purpose of this Agreement or the Note; provided, that the Pledgor shall
not exercise such rights in any manner which may have an adverse effect
on the value of the Pledged Collateral or the security intended to be
provided by this Agreement.
(ii) The Pledgor shall be entitled to receive and retain, and
to utilize free and clear of the lien of this Agreement, any and all
cash Distributions, provided, that any and all such Distributions other
than cash shall be, and shall be forthwith delivered to the Secured
Party to hold as, Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the benefit of the Secured Party, be
segregated from the other property or funds of the Pledgor, and be
forthwith delivered to the Secured Party as Pledged Collateral in the
same form as so received (with any necessary endorsement).
(iii) The Secured Party shall be deemed without further action
or formality to have granted to the Pledgor all necessary consents
relating to voting rights and shall, if necessary, upon written request
of the Pledgor and at the Pledgor's sole cost and expense, from time to
time execute and deliver (or cause to be executed and delivered) to the
Pledgor all such instruments as the Pledgor may reasonably request in
order to permit the Pledgor to exercise the voting and other rights
which it is entitled to exercise pursuant to Section 6(a)(i) hereof and
to receive the Distributions which it is authorized to receive and
retain pursuant to Section 6(a)(ii) hereof.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of the Pledgor to exercise the voting and other
consensual rights it would otherwise be entitled to exercise pursuant
to Section 6(a)(i) hereof without any action or the giving of any
notice shall cease, and all such rights shall thereupon become vested
in the Secured Party, which shall thereupon have the sole right to
exercise such voting and other consensual rights.
(ii) Subject to Section 9(a) hereof, all rights of the Pledgor
to receive Distributions which it would otherwise be authorized to
receive and retain pursuant to Section 6(a)(ii) hereof shall cease and
all such rights shall thereupon become vested in the Secured Party,
which shall thereupon have the sole right to receive and hold as
Pledged Collateral such Distributions.
(c) The Pledgor shall, at the Pledgor's sole cost and expense, from
time to time execute and deliver to the Secured Party appropriate instruments as
the Secured Party may request in order to permit the Secured Party to exercise
the voting and other rights which it may be entitled to exercise pursuant to
Section 6(b)(i) hereof and to receive all Distributions which it may be entitled
to receive under Section 6(b)(ii) hereof.
(d) All Distributions which are received by the Pledgor contrary to the
provisions of Section 6(b)(ii) hereof shall be received in trust for the benefit
of the Secured Party, shall be segregated from other funds of the Pledgor and
shall immediately be paid over to the Secured Party as Pledged Collateral in the
same form as so received (with any necessary endorsement).
Section 7. Transfers and Other liens; Principal Office. The Pledgor
agrees that it shall not (a) sell, convey, assign or otherwise dispose of, or
grant any option, right or warrant with respect to, any of the Pledged
Collateral or (b) create or permit to exist any lien upon or with respect to any
Pledged Collateral other than the lien and security interest granted to the
Secured Party under this Agreement.
Section 8. Reasonable Care. The Secured Party shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which the Secured Party, in its individual
capacity, accords its own property consisting of similar instruments or
interests, it being understood that the Secured Party shall not have
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not the Secured Party has or is deemed to have
knowledge of such matters, or (b) taking any necessary steps to preserve rights
against any Person with respect to any Pledged Collateral.
Section 9. Remedies Upon Event of Default; Decisions Relating to
Exercise of Remedies. (a) If an Event of Default shall occur and be continuing,
the Secured Party shall have the right, in addition to other rights and remedies
provided for herein or otherwise available to it to be exercised from time to
time, (i) to retain and apply the Distributions to the Secured Obligations as
provided in Section 10 hereof, and (ii) to exercise all the rights and remedies
of a secured party on default under the Uniform Commercial Code in effect in the
State of New York at that time, and the Secured Party may also in its sole
discretion, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange, broker's board or at any of the Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as the Secured Party may deem commercially
reasonable. The Secured Party or any of its affiliates may be the purchaser of
any or all of the Pledged Collateral at any such sale and shall be entitled, for
the purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Pledged Collateral sold at such sale, to use and
apply any of the Secured Obligations owed to such Person as a credit on account
of the purchase price of any Pledged Collateral payable by such Person at such
sale. Each purchaser at any such sale shall acquire the property sold absolutely
free from any claim or right on the part of the Pledgor, and the Pledgor hereby
waives (to the fullest extent permitted by law) all rights of redemption, stay
and/or appraisal which it now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted. The Pledgor
acknowledges and agrees that, to the extent notice of sale shall be required by
law, five days notice to the Pledgor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute reasonable
notification. The Secured Party shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The Secured
Party 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. The Pledgor hereby
waives any claims against the Secured Party arising by reason of the fact that
the price at which any Pledged Collateral may have been sold at such a private
sale was less than the price which might have been obtained at a public sale,
even if the Secured Party accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree.
(b) The Pledgor acknowledges that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state securities laws, the Secured Party may be compelled, with
respect to any sale of all or any part of the Pledged Collateral, to limit
purchasers to Persons who will agree, among other things, to acquire the Pledged
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor further acknowledges that any such
private sales may be at prices and on terms less favorable to the Secured Party
than those obtainable through a public sale without such restrictions
(including, without limitation, a public offering made pursuant to a
registration statement under the Securities Act), and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that the Secured Party shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would agree to do so.
(c) If the Secured Party determines to exercise its right to sell any
or all of the Pledged Collateral, upon written request, the Pledgor shall from
time to time furnish to the Secured Party all such information as the Secured
Party may request in order to determine the number of securities included in the
Pledged Collateral which may be sold by the Secured Party as exempt transactions
under the Securities Act and the rules of the Securities and Exchange Commission
thereunder, as the same are from time to time in effect.
(d) In addition to any of the other rights and remedies hereunder, the
Secured Party shall have the right to institute a proceeding seeking specific
performance in connection with any of the agreements or obligations hereunder.
Section 10. Application of Proceeds. All Distributions held from time
to time by the Secured Party and all cash proceeds received by the Secured Party
in respect of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral pursuant to the exercise by the Secured Party of
its remedies as a secured creditor as provided in Section 9 hereof shall be
applied, together with any other sums then held by the Secured Party pursuant to
this Agreement, promptly by the Secured Party as follows:
First, to the payment of all reasonable costs and expenses,
fees, commissions and taxes of such sale, collection or other
realization, including, without limitation, compensation to the Secured
Party and its agents and counsel, and all expenses, liabilities and
advances made or incurred by the Secured Party in connection therewith,
together with interest on each such amount at the Prime Rate (as
defined in the Note) from and after the date such amount is due, owing
or unpaid until paid in full; and
Second, to the payment of all other fees, expenses, principal
of and interest on the Note, other amounts owing to the Secured Party
under the Note, together with interest on each such amount at the Prime
Rate from and after the date such amount is due, owing or unpaid until
paid in full.
Section 11. Expenses. The Pledgor will upon demand pay to the Secured
Party the amount of any and all expenses, including the reasonable fees and
expenses of its counsel and, after the occurrence of an Event of Default, the
allocated costs of the Secured Party's internal counsel and the reasonable fees
and expenses of any experts and agents which the Secured Party may incur in
connection with (a) the collection of the Secured Obligations, (b) the
enforcement and administration of this Agreement, (c) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (d) the exercise or enforcement of any of the rights
of the Secured Party hereunder or (e) the failure by the Pledgor to perform or
observe any of the provisions hereof. All amounts payable by the Pledgor under
this Section 11 shall be due upon demand and shall be part of the Secured
Obligations.
Section 12. No Waiver; Cumulative Remedies. (a) No failure on the part
of the Secured Party to exercise, no course of dealing with respect to, and no
delay on the part of the Secured Party in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein provided are cumulative and are not exclusive of any
remedies provided by law.
(b) In the event the Secured Party shall have instituted any proceeding
to enforce any right, power or remedy under this instrument by foreclosure,
sale, entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Secured
Party, then and in every such case, the Pledgor, the Secured Party and each
holder of any of the Secured Obligations shall be restored to their respective
former positions and rights hereunder with respect to the Pledged Collateral,
and all rights, remedies and powers of the Secured Party shall continue as if no
such proceeding had been instituted.
Section 13. Secured Party May Perform; Secured Party Appointed
Attorney-in-Fact. If the Pledgor shall fail to do any act or thing that it has
covenanted to do hereunder or any warranty on the part of the Pledgor contained
herein shall be breached, the Secured Party may (but shall not be obligated to)
upon three business days notice to the Pledgor specifying the action to be
taken, do the same or cause it to be done or remedy any such breach, and may
expend funds for such purpose. Any and all amounts so expended by the Secured
Party shall be paid by the Pledgor promptly upon demand therefor, with interest
at the Prime Rate during the period from and including the date on which such
funds were so expended to the date of repayment. The Pledgor hereby appoints the
Secured Party its attorney-in-fact with an interest, with full authority in the
place and stead of the Pledgor and in the name of the Pledgor, or otherwise,
from time to time in the Secured Party's discretion to take any action and to
execute any instrument consistent with the terms of this Agreement and the Note
which the Secured Party may deem necessary or advisable to accomplish the
purposes of this Agreement. The foregoing grant of authority is a power of
attorney coupled with an interest and such appointment shall be irrevocable for
the term of this Agreement. The Pledgor hereby ratifies all that such attorney
shall lawfully do or cause to be done by virtue hereof.
Section 14. Indemnity. (a) Indemnity. The Pledgor agrees to indemnify,
pay and hold harmless the Secured Party and the officers, directors, employees,
agents, and affiliates of the Secured Party (collectively, the "Indemnitees")
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, and reasonable costs (including,
without limitation, settlement costs), expenses or disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnities in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto), which may
be imposed on, incurred by, or asserted against that Indemnitee, in any manner
(i) relating to or arising out of this Agreement or the Note (including, without
limitation, any misrepresentation by the Pledgor in this Agreement or the Note)
or (ii) arising out of a subpoena or document production request against an
Indemnified Party from a legal proceeding relating to the Pledgor or affiliate
thereof whether or not the Indemnified Party is a party thereto or target
thereof (collectively, the "indemnified liabilities"); provided, that the
Pledgor shall have no obligation to an Indemnitee hereunder with respect to
indemnified liabilities if it has been determined by a final decision (after all
appeals and the expiration of time to appeal) by a court of competent
jurisdiction that such indemnified liability arose from the gross negligence or
willful misconduct of that Indemnitee. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Pledgor
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law, to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnities or any of them.
(b) Reimbursement. Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Secured Obligations
secured by the Pledged Collateral.
Section 15. Modification in Writing. No amendment, modification,
supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by the Pledgor therefrom, shall be effective unless in
writing and signed by the Secured Party. Any amendment, modification or
supplement of or to any provision of this Agreement, any waiver of any provision
of this Agreement, and any consent to any departure by the Pledgor from the
terms of any provision of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement or the Note, no notice
to or demand on the Pledgor in any case shall entitle the Pledgor to any other
or further notice or demand in similar or other circumstances.
Section 16. Release. Upon the payment in full in cash of all Secured
Obligations, the Secured Party shall, upon the request and at the sole cost and
expense of the Pledgor, forthwith assign, transfer and deliver to the Pledgor,
against receipt and without recourse to or warranty by the Secured Party, such
of the Pledged Collateral of the Pledgor as may be in the possession of the
Secured Party and as shall not have been sold or otherwise applied pursuant to
the terms hereof, on the order of and at the sole cost and expense of the
Pledgor, and such proper instruments and/or agreements (including UCC
termination statements on Form UCC-3) as may be reasonably requested by the
Pledgor acknowledging the termination of this Agreement and/or the release of
such Pledged Collateral.
Section 17. Notices. Any notice or other communication herein required
or permitted to be given shall be given in the manner set forth in the Note.
Section 18. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(a) be binding upon the Pledgor, its successors and assigns, and (b) inure,
together with the rights and remedies of the Secured Party hereunder, to the
benefit of the Secured Party and its successors, transferees and assigns; no
other Persons (including, without limitation, any other creditor of the Pledgor)
shall have any interest herein or any right or benefit with respect hereto.
Section 19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR PROPERTY ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 20. Consent to Jurisdiction and Service of Process; Waiver of
Jury Trial. (a) The Pledgor HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LINE DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT
IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND APPELLATE COURTS FROM
ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO THE BORROWER AT ITS ADDRESS AS PROVIDED IN SECTION 17
HEREOF OR AT SUCH OTHER ADDRESS OF WHICH THE SECURED PARTY SHALL HAVE
BEEN NOTIFIED PURSUANT THERETO;
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(v) WAIVES THE RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR
CROSS-CLAIM IN RESPECT OF, AND ALL STATUTES OF LIMITATIONS WHICH MAY BE
RELEVANT TO, SUCH ACTION OR PROCEEDING.
(b) THE PLEDGOR AND THE SECURED PARTY EACH HEREBY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT, THE
NOTE, OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
Section 21. Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 22. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
Section 23. Headings. The Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
Section 24. Obligations Absolute. All obligations of the Pledgor
hereunder shall be joint and several and absolute and unconditional irrespective
of:
(a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Pledgor;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Note or any other agreement or instrument relating thereto;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Secured
Obligations;
(d) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect of this Agreement or
the Note except as specifically set forth in a waiver granted pursuant
to the provisions of Section 15 hereof; or
(e) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Pledgor.
Section 25. Survival of Provisions. All representations, warranties and
covenants of the Pledgor contained herein shall survive the execution and
delivery of this Agreement, and shall terminate only upon the full and
indefeasible payment in cash and performance of all of the Secured Obligations.
Section 26. Entire Agreement. THIS WRITTEN AGREEMENT, TOGETHER WITH THE
OTHER AGREEMENTS REFERRED TO HEREIN, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES WITH RESPECT TO THE MATTERS COVERED HEREBY AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the Pledgor has duly executed and delivered this
Agreement as of the date first above written.
By:
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