Exhibit 6
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "AGREEMENT") dated as of December 30,
1997 by ▇▇▇▇ INTERNATIONAL HOLDINGS, INC., a Delaware corporation, (in
its capacity as pledgor under the terms of this Agreement, "PLEDGOR"),
in favor of ▇▇▇▇▇▇ FINANCIAL, INC., a Delaware corporation, as agent
(the "AGENT") for the benefit of Lenders (defined below).
W I T N E S S E T H:
WHEREAS, Pledgor legally and beneficially owns all of the issued
and outstanding shares of capital stock of each of the Persons
respectively identified on Schedule I hereto (collectively, the
"SUBSIDIARIES"), all of which shares of stock are described on
Schedule I.
WHEREAS, Pledgor is entering into that certain Tender Offer Loan
Agreement dated as of the date hereof with Zephyros Acquisition
Corporation, as Borrower, Agent and certain financial institutions
from time to time party thereto (collectively, "LENDERS") (as it may
be amended, restated, supplemented or otherwise modified and in effect
from time to time, the "LOAN AGREEMENT") providing for loans and other
financial accommodations to be made by Lenders to Borrower;
WHEREAS, Borrower desires to incur such loans pursuant to the
Agreement for the purpose of financing the purchase price of all of
the issued and outstanding shares of common stock of Deflecta-Shield
Corporation, a Delaware corporation;
WHEREAS, Borrower is a wholly-owned subsidiary of Pledgor and as
such, Pledgor will derive direct and indirect economic benefits from
the making of loans and other financial accommodations under the Loan
Agreement;
WHEREAS, Pledgor has executed the Guaranty of Payment (the
"GUARANTY") of even date herewith in favor of Agent for the benefit of
Lenders under the Loan Agreement and the other Loan Documents and
Pledgor desires to secure the Guaranty by means of this Agreement;
WHEREAS, it is a condition precedent to the making of loans and
the availability of other financial accommodations under the Loan
Agreement that Pledgor shall have, among other things, (i) pledged to
Agent, on behalf of Lenders, all of the present and future capital
stock of Subsidiaries now or hereafter owned by Pledgor and (ii)
executed the Guaranty; and
WHEREAS, Pledgor desires to execute this Agreement to satisfy the
conditions described in (i) of the preceding paragraph;
NOW, THEREFORE, in consideration of the premises and in order to
induce Lenders to make loans and provide other financial
accommodations under the Loan Agreement, Pledgor hereby agrees with
Agent for its benefit and the benefit of Lenders as follows:
Section 1. Defined Terms. Unless otherwise defined herein, all
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capitalized terms used herein shall have the respective meanings
ascribed thereto in the Loan Agreement. Terms defined in the UCC which
are not otherwise defined in this Agreement or in the Loan Agreement
are used in this Agreement as defined in the UCC as in effect on the
date hereof.
Section 2. Pledge. Pledgor hereby pledges, assigns, hypothecates,
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transfers, delivers and grants to Agent, on behalf of Lenders, a first
lien on and first security interest in all of the capital stock of
each Subsidiary owned by Pledgor (collectively the "PLEDGED SHARES"),
all other property hereafter delivered to, or in the possession or in
the custody of, Pledgor in substitution for or in addition to the
Pledged Shares and in all proceeds thereof, as collateral security for
(i) the prompt and complete payment when due (whether at the stated
maturity, by acceleration or otherwise) and performance of all
Obligations, regardless of whether the Loan Agreement or any other
Loan Document shall have terminated, and (ii) the due and punctual
payment and performance by Pledgor of its obligations and liabilities
under, arising out of or in connection with this Agreement, the Loan
Agreement and all other Loan Documents to which Pledgor is a party
(all of the foregoing being referred to hereinafter collectively as
the "LIABILITIES"). All of the capital stock of Subsidiaries of
Pledgor are presently represented by the stock certificates listed on
Schedule I hereto, which stock certificates, with undated stock powers
duly executed in blank by Pledgor, are being delivered simultaneously
herewith to Agent. Agent shall maintain possession and custody of the
certificates representing the Pledged Shares.
Section 3. Representations and Warranties of Pledgor. Pledgor
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represents and warrants to Agent and Lenders that:
(a) Schedule I sets forth with respect to Pledgor (i) the
authorized capital stock of each Subsidiary, (ii) the number of shares
of capital stock of each Subsidiary that are issued and outstanding as
of the date hereof, and (iii) the number of shares of capital stock of
each Subsidiary held in its treasury. Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Pledged
Shares, and such shares are and will remain free and clear of all
pledges, liens, security interests and other encumbrances and
restrictions whatsoever, except the liens and security interests
created by this Agreement;
(b) Pledgor has full power, authority and legal right to
execute the pledge provided for herein and to pledge the Pledged
Shares to Agent, on behalf of Lenders;
(c) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable in accordance with its terms;
(d) There are no outstanding options, warrants or other
agreements with respect to the Pledged Shares and there are no
outstanding options, warrants or other agreements with respect to any
other shares of capital stock of any Subsidiary except, in each case,
as set forth on Schedule 3(d) hereto;
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(e) The Pledged Shares have been duly and validly authorized
and issued, are fully paid and non-assessable and represent all of the
issued and outstanding shares of the capital stock of each Subsidiary;
(f) No consent, approval or authorization of or designation
or filing with any governmental authority on the part of Pledgor is
required in connection with the pledge and security interest granted
under this Agreement except as set forth on Schedule 3(f) hereto;
(g) The execution, delivery and performance of this
Agreement will not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any
court, arbitrator or governmental authority, domestic or foreign, or
of the charter or by-laws of Pledgor or any Subsidiary or of any
securities issued by Pledgor or any Subsidiaries or of any mortgage,
indenture, lease, contract, or other material agreement, instrument or
undertaking to which Pledgor or any Subsidiary is a party or which
purports to be binding upon Pledgor or any Subsidiary or upon any of
its respective assets, and will not result in the creation or
imposition of any lien, charge or encumbrance on or security interest
in any of the assets of Pledgor or any Subsidiary except as
contemplated by this Agreement;
(h) The pledge and assignment to Agent, on behalf of
Lenders, of the Pledged Shares pursuant to this Agreement creates a
valid first lien on and a first perfected security interest in the
Pledged Shares and the proceeds thereof in favor of Agent, on behalf
of Lenders, subject to no prior pledge, lien, mortgage, hypothecation,
security interest, charge, option or encumbrance or to any agreement
purporting to grant to any third party a security interest in the
property or assets of any Pledgor which would include the Pledged
Shares. Pledgor covenants and agrees that it will defend Agent's
right, title and security interest in and to the Pledged Shares and
the proceeds thereof against the claims and demands of all persons
whomsoever; and
(i) All information heretofore, herein or hereafter supplied
to Agent by or on behalf of Pledgor with respect to the Pledged Shares
is and will be accurate and complete in all material respects, taking
into account any amendments to Schedules as a result of any
disclosures made by Pledgor to Agent after the Closing Date and
approved by Agent.
Section 4. Stock Dividends, Distributions, etc. If, while this
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Agreement is in effect, Pledgor shall become entitled to receive or
shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a stock distribution
in connection with any reclassification, increase or reduction of
capital, or issued in connection with any reorganization), or any
options or rights, whether as an addition to, in substitution for, or
in exchange for any of the Pledged Shares, or otherwise, Pledgor
agrees to accept the same as Agent's agent and to hold the same in
trust for Agent, on behalf of Lenders, and to deliver the same
forthwith to Agent on behalf of Agent, as the case may be, in the
exact form received, with the endorsement of Pledgor when necessary
and/or appropriate undated stock powers duly executed in blank, to be
held by Agent, on behalf of Lenders, subject to the terms hereof as
additional collateral security for the Liabilities. In case any
distribution of capital shall be made on or in respect of the Pledged
Shares or any property shall be distributed upon or with respect to
the Pledged Shares pursuant to the recapitalization or
reclassification of the capital of the issuer thereof or pursuant to
the reorganization thereof, the property so distributed shall be
delivered to Agent to be held by it as additional collateral security
for the Liabilities. All sums of money and property so paid or
distributed in respect of the Pledged Shares which are received by any
Pledgor shall, until paid or delivered to Agent, be held by such
Pledgor in trust as additional collateral security for the
Liabilities.
Section 5. Administration of Security. The following provisions
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shall govern the administration of the Pledged Shares:
(a) So long as no Event of Default has occurred and is
continuing, Pledgor shall be entitled (subject to the other provisions
hereof, including, without limitation, Section 8 below) to (i) vote or
consent with respect to the Pledged Shares in any manner not
inconsistent with this Agreement, the Loan Agreement, any other Loan
Document, or any note, document or instrument delivered or to be
delivered pursuant to or in connection with the transactions
contemplated by the foregoing, and (ii) receive cash dividends or
other distributions in the ordinary course made in respect of the
Pledged Shares. Pledgor hereby grants to Agent or its nominee, on
behalf of Lenders, an irrevocable proxy to exercise all voting and
corporate rights relating to the Pledged Shares in any instance
effective upon the occurrence and during the continuance of an Event
of Default. After the occurrence and during the continuance of an
Event of Default and upon the request of Agent, Pledgor agrees to
deliver to Agent, on behalf of Lenders, such further evidence of such
irrevocable proxy or such further irrevocable proxies to vote the
Pledged Shares as Agent may request.
(b) Upon the occurrence and during the continuance of an
Event of Default, in the event that Pledgor, as record and beneficial
owner of the Pledged Shares, shall have received or shall have become
entitled to receive, any cash dividends or other distributions in the
ordinary course, Pledgor shall deliver to Agent, on behalf of Lenders,
and Agent shall be entitled to receive and retain, all such cash or
other distributions as additional security for the Liabilities.
(c) Subject to any sale or other disposition by Agent of
the Pledged Shares or other property pursuant to this Agreement, the
Pledged Shares and any other property then held as part of the Pledged
Shares in accordance with the provisions of this Agreement shall be
delivered to Pledgor upon indefeasible full payment, satisfaction and
termination of all of the Liabilities, the termination of the lien and
security interest hereby granted pursuant to Section 14 hereof and the
termination of the Commitments under the Loan Agreement.
Section 6. Rights of Agent. Neither Agent nor Lenders shall be
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liable for failure to collect or realize upon the Obligations or any
collateral security or guaranty therefor, or any part thereof, or for
any delay in so doing, nor shall Agent or Lenders be under any
obligation to take any action whatsoever with regard thereto. Any or
all of the Pledged Shares held by Agent hereunder may, if an Event of
Default has occurred and is continuing, with reasonably prompt
subsequent notice to Pledgor, be registered in the name of Agent or
its nominee, on behalf of Lenders, and Agent or its nominee, on behalf
of Lenders, may thereafter, without notice, exercise all voting and
corporate rights at any meeting with respect to Subsidiaries and
exercise any and all rights of conversion, exchange, subscription or
any other rights, privileges or options pertaining to any of the
Pledged Shares as if it were the absolute owner thereof, including,
without limitation, the right to vote in favor of, and to exchange at
its discretion any and all of the Pledged Shares upon, the merger,
consolidation, reorganization, recapitalization or other readjustment
with respect to Subsidiaries or upon the exercise by Pledgor or Agent,
on behalf of Lenders, of any right, privilege or option pertaining to
any of the Pledged Shares, and in connection therewith, to deposit and
deliver any and all of the Pledged Shares with any committee,
depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as Agent may determine, all without
liability except to account for property actually received by Agent,
on behalf of Lenders, but Agent shall have no duty to exercise any of
the aforesaid rights, privileges or options and shall not be
responsible for any failure to do so or delay in so doing.
Section 7. Remedies. Upon the occurrence and during the
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continuance of an Event of Default, Agent without demand of
performance or other demand, advertisement or notice of any kind
(except the notice specified below of time and place of public or
private sale) to or upon Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly
waived), may forthwith collect, receive, appropriate and realize upon
the Pledged Shares, or any part thereof, and/or may forthwith sell,
assign, give an option or options to purchase, contract to sell or
otherwise dispose of (including the disposition by merger) and deliver
said Pledged Shares, or any part thereof, in one or more portions at
public or private sale or sales or transactions, at any exchange,
broker's board or at any of Agent's offices or elsewhere upon such
terms and conditions as Agent may deem advisable and at such prices as
it may deem best, for any combination of cash and/or securities or
other property or on credit or for future delivery without assumption
of any credit risk, with the right to Agent upon any such sale or
sales, public or private, to purchase the whole or any part of said
Pledged Shares so sold, free of any right or equity of redemption in
Pledgor, which right or equity is hereby expressly waived or released.
Agent shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization, sale or disposition, after
deducting all reasonable costs and expenses of every kind incurred
therein or incidental to the safekeeping of any and all of the Pledged
Shares or in any way relating to the rights of Agent or Lenders
hereunder, including reasonable attorneys' fees and legal expenses, to
the payment, in whole or in part, of the Obligations incurred under or
pursuant to the Loan Agreement in such order as is in accordance with
the terms of the Loan Agreement or, if no such order shall be
specified, in such order as Agent may elect. Pledgor shall remain
liable for any deficiency remaining unpaid after such application.
Only after so paying over such net proceeds and after the payment by
Agent of any other amount required by any provision of law, including,
without limitation, Section 9-504(1)(c) of the UCC, need Agent account
for the surplus, if any, to Pledgor. Pledgor agrees that Agent need
not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or other
intended disposition is to take place and that such notice is
reasonable notification of such matters. No notification need be given
to Pledgor if Pledgor has signed after the occurrence of an Event of
Default under the Loan Agreement a statement renouncing or modifying
any right to notification of sale or other intended disposition. In
addition to the rights and remedies granted to Agent in this Agreement
and in any other instrument or agreement securing, evidencing or
relating to any of the Liabilities, Agent and Lenders shall have all
the rights and remedies of a secured party under the UCC and under any
other applicable law. Pledgor further agrees to waive and agrees not
to assert any rights or privileges which it may acquire under Section
9-112 of the UCC (other than the right to receive surplus, if any, in
accordance with the foregoing terms of this subsection 7) and Pledgor
shall be liable for the deficiency if the proceeds of any sale or
other disposition of the Pledged Shares are insufficient to pay all
amounts to which Agent and Lenders are entitled, and the fees of any
attorneys employed by Agent and Lenders to collect such deficiency and
any other costs and expenses incurred in connection therewith.
Section 8. No Disposition, etc. Without the prior written consent
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of Agent, Pledgor agrees not to sell, assign, transfer, exchange, or
otherwise dispose of (except as expressly permitted by the Loan
Agreement), or grant any option with respect to, the Pledged Shares,
nor will Pledgor create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge, option or any
other encumbrance with respect to any of the Pledged Shares, or any
interest therein, or any proceeds thereof, except for the lien and
security interest provided for by this Agreement. Without the prior
written consent of Agent, except as expressly specified in accordance
with the terms and conditions of the Loan Agreement, Pledgor agrees
not to vote to enable, and not to otherwise permit, Subsidiaries to
(i) issue any stock or other securities of any nature in addition to
or in exchange or substitution for the Pledged Shares, or (ii)
dissolve, liquidate, retire any of their capital stock, reduce their
capital or merge or consolidate with any other Person.
Section 9. Sale of Pledged Shares.
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(a) Pledgor recognizes that Agent may be unable to effect a
public sale or disposition of any or all the Pledged Shares by reason
of certain prohibitions contained in the Securities Act of 1933, as
amended (the "ACT"), and applicable state securities laws, but may be
compelled to resort to one or more private sales or dispositions
thereof to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or
resale thereof. Pledgor acknowledges and agrees that any such private
sale or disposition may result in prices and other terms (including
the terms of any securities or other property received in connection
therewith) less favorable to the seller than if such sale or
disposition were a public sale or disposition and, notwithstanding
such circumstances, agrees that any such private sale or disposition
shall be deemed to be reasonable and affected in a commercially
reasonable manner. Agent and Lenders shall be under no obligation to
delay a sale or disposition of any of the Pledged Shares in order to
permit Pledgor or Subsidiaries to register such securities for public
sale under the Act, or under applicable state securities laws, even if
Pledgor or Subsidiaries would agree to do so.
(b) Pledgor further agrees to do or cause to be done all
such other acts and things as may be necessary to make such sale or
sales or dispositions of any portion or all of the Pledged Shares
valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and
all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales or
dispositions, all at Pledgor's expense. Pledgor further agrees that a
breach of any of the covenants contained in Sections 2, 4, 5(b), 8, 9
or 10 hereof will cause irreparable injury to Agent and Lenders, that
Agent and Lenders have no adequate remedy at law in respect of such
breach and, as a consequence, agrees, without limiting the right of
Agent to seek and obtain specific performance of other obligations of
Pledgor contained in this Agreement, that each and every covenant
referenced above shall be specifically enforceable against Pledgor,
and Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Loan
Agreement.
(c) Pledgor further agrees to indemnify and hold harmless
Agent, each of its respective successors and assigns, officers,
directors, employees and agents, and any Person in control of any
thereof, from and against any loss, liability, claim, damage and
expense, including, without limitation, reasonable counsel fees (in
this Section 9(c) collectively called the "INDEMNIFIED LIABILITIES"),
under federal and state securities laws or otherwise insofar as such
loss, liability, claim, damage or expense (i) arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, prospectus or
offering memorandum or in any preliminary prospectus or preliminary
offering memorandum or in any amendment or supplement to any of the
foregoing or in any other writing prepared in connection with the
offer, sale or resale of all or any portion of the Pledged Shares
unless such untrue statement of material fact was provided by Agent
specifically for inclusion therein, or (ii) arises out of or is based
upon any omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein not
misleading, such indemnification to remain operative regardless of any
investigation made by or on behalf of Agent or any successor thereof,
or any Person in control of any thereof. In connection with a public
sale or other distribution, Pledgor will provide customary
indemnification to any underwriters, their respective successors and
assigns, their respective officers and directors and each Person who
controls any such underwriter (within the meaning of the Act). If and
to the extent that the foregoing undertakings in this Section 9(c) may
be unenforceable for any reason, Pledgor agrees to make maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. The
obligations of Pledgor under this Section 9(c) shall survive any
termination of this Agreement.
(d) Pledgor further agrees to waive any and all rights of
subrogation any of them may have against Subsidiaries upon the sale or
sales or dispositions by Agent of any portion of, or all of, the
Pledged Shares.
Section 10. Further Assurances. Pledgor agrees that at any time
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and from time to time, upon the written request of Agent, Pledgor
shall execute and deliver all stock powers, irrevocable proxies,
financing statements and such further documents and do such further
acts and things as Agent may reasonably request consistent with the
provisions hereof in order to effect the purposes of this Agreement.
Section 11. Severability. Any provision of this Agreement which
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is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 12. No Waiver; Cumulative Remedies. Agent shall not by
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any act, delay, omission or otherwise be deemed to have waived any of
its remedies hereunder, and no waiver by Agent shall be valid unless
in writing and signed by Agent and then only to the extent therein set
forth. A waiver by Agent of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which
Agent would otherwise have on any further occasion. No course of
dealing between Pledgor and Agent and no failure to exercise, nor any
delay in exercising on the part of Agent any right, power or privilege
hereunder or under the Loan Documents shall impair such right or
remedy or operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided are cumulative
and may be exercised singly or concurrently, and are not exclusive of
any rights or remedies provided by law.
Section 13. Successors. This Agreement and all obligations of
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Pledgor hereunder shall be binding upon the successors and assigns of
Pledgor, and shall, together with the rights and remedies of Agent and
Lenders hereunder, inure to the benefit of Pledgor, Lenders and Agent
and their successors and assigns, except that Pledgor shall not have
any right to assign its rights or obligations under this Agreement or
any interest herein without the prior written consent of Agent.
Section 14. Termination. This Agreement and the liens and
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security interests granted hereunder shall terminate upon full and
complete performance, indefeasible payment in full and satisfaction of
the Liabilities and termination of the Commitments under the Loan
Agreement, and with reasonable promptness, upon such full and complete
performance, satisfaction and termination, Agent shall surrender the
certificates evidencing the Pledged Shares to Pledgor and take such
other action as Pledgor may reasonably request to evidence the
termination of this Agreement, all at the sole cost and expense of
Pledgor.
Section 15. Possession of Pledged Shares. Beyond the exercise of
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reasonable care to assure the safe custody of the Pledged Shares in
the physical possession of Agent pursuant hereto, neither Agent nor
any nominee of Agent shall have any duty or liability to collect any
sums due in respect thereof or to protect, preserve or exercise any
rights pertaining thereto, and shall be relieved of all responsibility
for the Pledged Shares upon surrendering them to Pledgor.]
Section 16. Survival of Representations. All representations and
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warranties of Pledgor contained in this Agreement shall survive the
execution and delivery of this Agreement.
Section 17. Taxes and Expenses. Pledgor will upon demand pay to
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Agent all fees, costs and expenses (including reasonable attorneys'
fees, reasonably allocated costs of internal counsel and fees of
accountants and other professionals retained by Agent) incurred by
Agent in connection with (i) the review, negotiation, preparation,
documentation, execution and administration hereof, and (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Shares. Pledgor will upon demand
pay to Agent all fees, costs and expenses (including attorneys' fees,
allocated costs of internal counsel and fees of accountants and other
professionals retained by Agent) incurred by Agent in connection with
(i) the exercise or enforcement of any of the rights of Agent
hereunder, and (ii) the failure of Pledgor to perform or observe any
of the provisions hereof.
Section 18. Agent Appointed Attorney-In-Fact. Pledgor hereby
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irrevocably appoints Agent as its attorney-in-fact, effective upon the
occurrence and during the continuance of an Event of Default, with
full authority in the place and stead of Pledgor and in the name of
Pledgor or otherwise, from time to time in Agent's discretion, to take
any action and to execute any instrument that Agent deems reasonably
necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and collect all
instruments made payable to Pledgor representing any dividend,
interest payment or other distribution in respect of the Pledged
Shares or any part thereof and to give full discharge for the same,
when and to the extent permitted by this Agreement.
Section 19. Notices. Unless otherwise provided specifically
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herein, all notices, approvals, requests, demands and other
communications hereunder shall be given in writing addressed to the
respective party in accordance with the terms of the Loan Agreement.
Section 20. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
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AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
Section 21. Consent to Jurisdiction and Service of Process.
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PLEDGOR AGREES THAT, SUBJECT TO AGENT'S ELECTION, ANY ACTION OR
PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT MAY BE
COMMENCED IN ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF
NEW YORK, STATE OF NEW YORK, AND PLEDGOR WAIVES PERSONAL SERVICE OF
PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION
OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL
CONFER PERSONAL JURISDICTION IF SERVED BY MESSENGER OR REGISTERED MAIL
TO IT AND, IF BY REGISTERED MAIL, SERVICE SO MADE SHALL BE DEEMED TO
BE COMPLETED FOUR (4) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN
POSTED, OR AS OTHERWISE PROVIDED BY THE LAWS OF NEW YORK OR THE UNITED
STATES.
Section 22. Waiver of Jury Trial. PLEDGOR, AGENT AND EACH LENDER
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ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH TRIAL AND HEREBY
WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY. PLEDGOR HEREBY
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF AGENT OR LENDERS.
Section 23. Changes in Writing. No amendment, modification,
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termination or waiver of any provision of this Agreement or consent to
any departure by Pledgor therefrom, shall in any event be effective
without the written agreement of Agent and Pledgor, and then only to
the extent specifically set forth in such writing.
Section 24. Headings. Section and subsection headings in this
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Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose or
be given any substantive effect.
Section 25. Counterparts. This Agreement may be executed in any
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number of counterparts, all of which taken together shall constitute
one and the same instrument and any of the parties hereto may execute
this Agreement by signing any such counterpart.
Section 26. Entire Agreement. This Agreement embodies the entire
----------------
agreement and understanding between Pledgor and Agent with respect to
the subject matter hereof and supersedes all prior oral and written
agreements and understandings between Pledgor and Agent relating to
the subject matter hereof.
[Signature page to follow]
IN WITNESS WHEREOF, the undersigned has caused this Pledge
Agreement to be duly executed and delivered by their duly authorized
officers as of the date first above written.
▇▇▇▇ INTERNATIONAL HOLDINGS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board of Directors
Agreed to and Acknowledged:
▇▇▇▇▇▇ FINANCIAL, INC.,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇, a Notary Public in and for said County,
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in the State aforesaid, DO HEREBY CERTIFY that ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
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personally known to me to be a Chairman of the Board, the person who
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executed the foregoing instrument, who being by me duly sworn, did
depose and say he is a Chairman of the Board of each such corporation
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described in and which executed the foregoing instrument; that said
instrument is signed on behalf of each such corporation by order its
respective Board of Directors; and that he acknowledged said
instrument to be the free act and deed of each such corporation.
GIVEN under my hand and notarial seal this 30 day of
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December, 1997.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Notary Public
My commission expires:
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in Kings County
Certificate filed in New York County
Commission Expires Nov. 30, 1999
SCHEDULE I
PLEDGED SHARES
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AUTHORIZED ISSUED AND NO. OF
CAPITAL OUTSTANDING STOCK TREASURY
PLEDGED ENTITY STOCK STOCK CERTIFICATES SHARES PLEDGOR
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▇▇▇▇ ▇▇▇▇
Acquisition International
Corp. 1,000 shares 1,000 shares 1 None. Holdings, Inc.
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▇▇▇▇ ▇▇▇▇
Industries, 10,000 2,000 shares 16 None. International
Incorporated shares Holdings, Inc.
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Zephyros ▇▇▇▇
Acquisition 100 shares 100 shares 1 None. International
Corporation holdings, Inc.
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SCHEDULE 3(D)
OPTIONS, WARRANTS AND AGREEMENTS
SCHEDULE 3(F)
CONSENTS, APPROVALS AND AUTHORIZATIONS
