EXECUTION COPY
PLEDGE AGREEMENT
between
Aegis Capital Markets, Inc. (d/b/a Markets)
as Pledgor
AND
Norwest Bank Minnesota, National Association,
as Trustee
Dated as of April 30, 1997
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge
Agreement"), dated as of April 30, 1997, is executed by and
among AEGIS CAPITAL MARKETS, INC. (D/B/A
MARKETS), a Delaware corporation (the "Pledgor") and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
a national banking association (the "Indenture Trustee") as Trustee
under that certain Indenture dated April 30, 1997 (the "Indenture")
between Aegis Auto Finance, Inc. an affiliate of the Pledgor
("AAF" or the "Borrower") and the Indenture Trustee with respect
to $21,333,333 aggregate principal amount at maturity 12%
Exchangeable Subordinated Notes due 2004 (the "Notes").
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed to such terms in the
Indenture.
WITNESSETH:
WHEREAS, the Indenture Trustee has agreed to
purchase the Notes from the Pledgor on the terms and conditions
set forth in the Indenture;
WHEREAS, the Pledgor directly owns 100% of the
issued and outstanding capital stock of (a) Commission Finance
92-1 Incorporated, (b) Receivables Finance 93-1 Incorporated, (c)
MF Receivable Finance Company and (d) MF Commission
Finance 1994-1 Corporation (such direct subsidiaries and any other
subsidiary hereafter acquired or formed by the Pledgor, the "Direct
Subsidiaries") and will derive direct and indirect economic benefit
from the sale of Notes to the Pledgor under the Indenture; and
WHEREAS, the Indenture Trustee has required, as
a condition to its entering into the Indenture, that the Pledgor
execute and deliver this Pledge Agreement;
NOW, THEREFORE, for and in consideration of
the foregoing and of any financial accommodations or extensions
of credit (including, without limitation, any loan or advance by
renewal, refinancing or extension of the agreements described
hereinabove or otherwise) heretofore, now or hereafter made to or
for the benefit of the Pledgor pursuant to the Indenture or any
other agreement, instrument or document executed pursuant to or
in connection therewith, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor and the Indenture Trustee hereby agree
as follows:
1. Pledge. The Pledgor hereby pledges to the
Indenture Trustee, and grants to the Indenture Trustee a security
interest in, the following (collectively, the "Pledged Collateral"):
(a) The shares of the capital stock of each Direct
Subsidiary, now or at any time or times hereafter owned
by the Pledgor, and the certificates representing the shares
of such capital stock (such now-owned shares being
identified on Exhibit A next to each Direct Subsidiary), all
options and warrants for the purchase of shares of the stock
of any Direct Subsidiary now or hereafter held in the name
of the Pledgor (all of said capital stock, options and
warrants and all capital stock held in the name of the
Pledgor as a result of the exercise of such options or
warrants being hereinafter collectively referred to as the
"Pledged Stock"), and all dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of, or in exchange for, any
or all of the Pledged Stock it being understood that the
Pledged Stock and stock powers for each Direct Subsidiary
have been delivered to III Finance, Ltd. (the "Lender") to
secure Senior Indebtedness of the Pledgor to the Lender;
(b) All additional shares of stock of any Direct
Subsidiary from time to time acquired by the Pledgor in
any manner, and the certificates representing such
additional shares (any such additional shares shall
constitute part of the Pledged Stock and the Indenture
Trustee are irrevocably authorized to amend Exhibit A
from time to time to reflect such additional shares), and all
options, warrants, dividends, cash, instruments and other
rights and options from time to time received, receivable or
otherwise distributed in respect of or in exchange for any
or all of such shares;
(c) The property and interests in property described
in Section 3 below; and
(d) All proceeds of the foregoing.
2. Security for Liabilities. The Pledged Collateral
secures the prompt payment, performance and observance of (i)
the Borrower's obligations and liabilities under the Indenture and
each agreement, document or instrument executed pursuant to or
in connection with the Indenture and (ii) the Pledgor's obligations
and liabilities under this Pledge Agreement and each agreement,
document or instrument executed pursuant to or in connection
with this Pledge Agreement (all such obligations and liabilities of
the Pledgor and the Borrower now or hereafter existing being
hereinafter referred to as the "Liabilities").
3. Pledged Collateral Adjustments. If, during the
term of this Pledge Agreement:
(a) Any stock dividend, reclassification,
readjustment or other change is declared or made in the
capital structure of any Direct Subsidiary, or any option
included within the Pledged Collateral is exercised, or
both, or
(b) Any subscription warrants or any other rights
or options shall be issued in connection with the Pledged
Collateral,
then all new, substituted and additional shares, warrants, rights,
options or other securities, issued by reason of any of the
foregoing, shall be immediately delivered to and held by the
Indenture Trustee under the terms of this Pledge Agreement and
shall constitute Pledged Collateral hereunder; provided, however,
that nothing contained in this Section 3 shall be deemed to permit
any stock dividend, issuance of additional stock, warrants, rights
or options, reclassification, readjustment or other change in the
capital structure of a Direct Subsidiary which is not permitted in
the Indenture.
4. Subsequent Changes Affecting Pledged
Collateral. The Pledgor represents and warrants that it has made
its own arrangements for keeping itself informed of changes or
potential changes affecting the Pledged Collateral (including, but
not limited to, rights to convert, rights to subscribe, payment of
dividends, reorganization or other exchanges, tender offers and
voting rights), and the Pledgor agrees that the Indenture Trustee
shall have no obligation to inform the Pledgor of any such
changes or potential changes or to take any action or omit to take
any action with respect thereto. The Indenture Trustee may, after
the occurrence of an Event of Default, without notice and at its
option, transfer or register the Pledged Collateral or any part
thereof into its or its nominee's name with or without any
indication that such Pledged Collateral is subject to the security
interest hereunder. In addition, the Indenture Trustee may at any
time exchange certificates or instruments representing or
evidencing Pledged Shares for certificates or instruments of
smaller or larger denominations.
5. Representations and Warranties. The Pledgor
represents and warrants as follows:
(a) The Pledgor is the legal and beneficial owner
of the Pledged Stock, which represents 100% of the issued and
outstanding common stock of each Direct Subsidiary identified on
Exhibit A, free and clear of any Lien except for the security
interest created by this Pledge Agreement or in connection with
any Senior Indebtedness and the Pledgor owns no other stock
other than that identified on Exhibit A;
(b) The Pledgor has full corporate power and
authority to enter into this Pledge Agreement;
(c) There are no restrictions upon the voting rights
associated with, or upon the transfer of, any of the Pledged
Collateral;
(d) The Pledgor has the right to vote, pledge and
grant a security interest in or otherwise transfer such Pledged
Collateral free of any Liens other than the Lien created pursuant
to this Pledge Agreement or in connection with any Senior
Indebtedness;
(e) No authorization, approval, or other action by,
and no notice to or filing with, any Governmental Authority or
regulatory body is required either (i) for the pledge of the Pledged
Collateral pursuant to this Pledge Agreement or for the execution,
delivery or performance of this Pledge Agreement by the Pledgor
or (ii) for the exercise by the Indenture Trustee of the voting or
other rights provided for in this Pledge Agreement or the remedies
in respect of the Pledged Collateral pursuant to this Pledge
Agreement (except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally); and
(f) The pledge of the Pledged Collateral pursuant
to this Pledge Agreement creates a valid and perfected first
priority security interest in the Pledged Collateral, in favor of the
Indenture Trustee, securing the payment and performance of the
Liabilities.
6. Voting Rights. During the term of this Pledge
Agreement, and except as provided in this Section 7(b) below, the
Pledgor shall have the right to vote the Pledged Stock on all
corporate questions in a manner not inconsistent with the terms of
this Pledge Agreement, the Indenture and any other agreement,
instrument or document executed pursuant thereto or in connection
therewith. After the occurrence of an Event of Default, the
Indenture Trustee or either of the Indenture Trustee' nominees
may, at the Indenture Trustee' or such nominee's option and
following written notice from the Indenture Trustee to the Pledgor,
exercise all voting powers pertaining to the Pledged Collateral,
including the right to take action by shareholder consent. Such
authorization shall constitute an irrevocable voting proxy from the
Pledgor to the Indenture Trustee or, at the Indenture Trustee's
option, to the Indenture Trustee's nominees.
7. Dividends and Other Distributions. (a) So long
as no Event of Default or Default shall have occurred:
(i) The Pledgor shall be entitled to receive and
retain any and all dividends and interest paid in respect of the
Pledged Collateral, provided, however, that any and all
(A) dividends and interest paid or payable other
than in cash with respect to, and instruments and other
property received, receivable or otherwise distributed with
respect to, or in exchange for, any of the Pledged
Collateral;
(B) dividends and other distributions paid or
payable in cash with respect to any of the Pledged
Collateral on account of a partial or total liquidation or
dissolution or in connection with a reduction of capital,
capital surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed
with respect to principal of, or in redemption of, or in
exchange for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the
Indenture Trustee to hold as Pledged Collateral and shall, if
received by the Pledgor, be received in trust for the Indenture
Trustee, be segregated from the other property or funds of the
Pledgor, and be delivered immediately to the Indenture Trustee as
Pledged Collateral in the same form as so received (with any
necessary endorsement); and
(ii) The Indenture Trustee shall execute and deliver
(or cause to be executed and delivered) to the Pledgor all such
proxies and other instruments as the Pledgor may reasonably
request for the purpose of enabling the Pledgor to receive the
dividends or interest payments which it is authorized to receive
and retain pursuant to clause (i) above.
(b) After the occurrence of an Event of Default:
(i) All rights of the Pledgor to receive the
dividends and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 7(a)(i) hereof
shall cease, and all such rights shall thereupon become vested in
the Indenture Trustee, which shall thereupon have the sole right to
receive and hold as Pledged Collateral such dividends and interest
payments;
(ii) All dividends and interest payments which are
received by the Pledgor contrary to the provisions of clause (i) of
this Section 7(b) shall be received in trust for the Indenture
Trustee, shall be segregated from other funds of the Pledgor and
shall be paid over immediately to the Indenture Trustee as Pledged
Collateral in the same form as so received (with any necessary
endorsements);
(iii) The Pledgor shall, upon the request of the
Indenture Trustee, at Pledgor's expense, use its best efforts to
obtain all necessary governmental approvals for the sale of the
Pledged Collateral, as requested by the Indenture Trustee;
(iv) The Pledgor shall, upon the request of the
Indenture Trustee, at the Pledgor's expense, do or cause to be
done all such other acts and things as may be necessary to make
such sale of the Pledged Collateral or any part thereof valid and
binding and in compliance with applicable law.
The Pledgor will reimburse the Indenture Trustee for all expenses
incurred by the Indenture Trustee, including, without limitation,
reasonable attorneys' and accountants' fees and expenses in
connection with the foregoing. The Pledgor agrees that, in light
of the fact that federal and state securities laws impose certain
restrictions on the method by which the Pledged Collateral may be
sold, it will be commercially reasonable if a private sale, upon at
least ten (10) days' notice to the Pledgor, is arranged so as to
avoid a public offering, even though the sales price established
and/or obtained at such private sale may be substantially less than
prices which could have been obtained for such security on any
market or exchange or in any other public sale.
8. Transfers and Other Liens. The Pledgor agrees
that it will not (i) sell or otherwise dispose of, or grant any option
with respect to, any of the Pledged Collateral without the prior
written consent of the Indenture Trustee or (ii) create or permit to
exist any Lien upon or with respect to any of the Pledged
Collateral, except for the security interest under this Pledge
Agreement.
9. Remedies. (a) The Indenture Trustee shall
have, in addition to any other rights given under this Pledge
Agreement or by law, all of the rights and remedies with respect
to the Pledged Collateral of a secured party under the Uniform
Commercial Code as in effect in the State of New York. After
the occurrence of an Event of Default and following written notice
to the Pledgor, the Indenture Trustee (personally or through an
agent) is hereby authorized and empowered to transfer and register
in its name or in the name of its nominee the whole or any part of
the Pledged Collateral, to exercise all voting rights with respect
thereto, to collect and receive all cash dividends and other
distributions made thereon, and to otherwise act with respect to
the Pledged Collateral as though the Indenture Trustee were the
outright owner thereof. The Pledgor hereby irrevocably
constitutes and appoints the Indenture Trustee as the proxy and
attorney-in-fact of the Pledgor, with full power of substitution to
do so, such proxy becoming effective upon the occurrence of an
Event of Default and following written notice thereof; provided,
however, that the Indenture Trustee shall have no duty to exercise
any such right or to preserve the same and shall not be liable for
any failure to do so or for any delay in doing so. In addition,
after the occurrence of an Event of Default, the Indenture Trustee
shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged
Collateral or any part thereof which shall then be in or shall
thereafter come into the possession or custody of the Indenture
Trustee or which the Indenture Trustee shall otherwise have the
ability to transfer under applicable law, the Indenture Trustee may,
in its sole discretion, without notice except as specified below,
after the occurrence of an Event of Default, sell or cause the same
to be sold at any exchange, broker's board or at public or private
sale, in one or more sales or lots, at such price as the Indenture
Trustee may deem best, for cash or on credit or for future
delivery, without assumption of any credit risk, and the purchaser
of any or all of the Pledged Collateral so sold shall thereafter own
the same, absolutely free from any claim, encumbrance or right of
any kind whatsoever. The Indenture Trustee may, in its own
name, or in the name of a designee or nominee, buy the Pledged
Collateral at any public sale and, if permitted by applicable law,
buy the Pledged Collateral at any private sale. The Pledgor will
pay to the Indenture Trustee all reasonable expenses (including,
without limitation, court costs and reasonable attorneys' and
paralegals' fees and expenses) of, or incidental to, the enforcement
of any of the provisions hereof. The Indenture Trustee agrees to
distribute any proceeds of the sale of the Pledged Collateral in
accordance with the Indenture and the Pledgor shall remain liable
for any deficiency following the sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens
to decline speedily in value or is or becomes of a type sold on a
recognized market, the Indenture Trustee will give the Pledgor
reasonable notice of the time and place of any public sale thereof,
or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Pledged Collateral
conducted in conformity with reasonable commercial practices of
banks, commercial finance companies, insurance companies or
other financial institutions disposing of property similar to the
Pledged Collateral shall be deemed to be commercially reasonable.
Notwithstanding any provision to the contrary contained herein,
the Pledgor agrees that any requirements of reasonable notice shall
be met if such notice is received by the Pledgor as provided in
Section 25 below at least ten (10) days before the time of the sale
or disposition; provided, however, that the Indenture Trustee may
give any shorter notice that is commercially reasonable under the
circumstances. Any other requirement of notice, demand or
advertisement for sale is waived, to the extent permitted by law.
(c) In view of the fact that federal and state
securities laws may impose certain restrictions on the method by
which a sale of the Pledged Collateral may be effected after an
Event of Default, the Pledgor agrees that after the occurrence of
an Event of Default, the Indenture Trustee may, from time to
time, attempt to sell all or any part of the Pledged Collateral by
means of a private placement restricting the bidders and
prospective purchasers to those who are qualified and will
represent and agree that they are purchasing for investment only
and not for distribution. In so doing, the Indenture Trustee may
solicit offers to buy the Pledged Collateral, or any part of it, from
a limited number of investors deemed by the Indenture Trustee, in
its reasonable judgment, to be financially responsible parties who
might be interested in purchasing the Pledged Collateral. If the
Indenture Trustee solicits such offers from not less than three (3)
such investors, then the acceptance by the Indenture Trustee of the
highest offer obtained therefrom shall be deemed to be a
commercially reasonable method of disposing of such Pledged
Collateral; provided, however, that this Section does not impose a
requirement that the Indenture Trustee solicit offers from three or
more investors in order for the sale to be commercially reasonable.
10. Security Interest Absolute. All rights of the
Indenture Trustee and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and
unconditional irrespective of:
(a) Any lack of validity or enforceability of the
Indenture or any other agreement or instrument relating
thereto;
(b) Any change in the time, manner or place of
payment of, or in any other term of, all or any part of the
Liabilities, or any other amendment or waiver of or any
consent to any departure from the Indenture;
(c) Any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any
part of the Liabilities; or
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Pledgor in respect of the Liabilities or of this Pledge
Agreement.
11. Indenture Trustee Appointed Attorney-in-Fact.
The Pledgor hereby appoints the Indenture Trustee its
attorney-in-fact, with full authority, in the name of the Pledgor or
otherwise, after the occurrence of an Event of Default, from time
to time in the Indenture Trustee's sole discretion, to take any
action and to execute any instrument which the Indenture Trustee
may deem necessary or advisable to accomplish the purposes of
this Pledge Agreement, including, without limitation, to receive,
endorse and collect all instruments made payable to the Pledgor
representing any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give
full discharge for the same and to arrange for the transfer of all or
any part of the Pledged Collateral on the books of a Direct
Subsidiary to the name of the Indenture Trustee or its nominees.
12. Waivers. (a) The Pledgor waives presentment
and demand for payment of any of the Liabilities, protest and
notice of dishonor or Event of Default with respect to any of the
Liabilities and all other notices to which the Pledgor might
otherwise be entitled except as otherwise expressly provided
herein or in the Indenture.
(b) The Pledgor agrees that all of its obligations
under this Pledge Agreement shall remain in full force and effect
without defense, offset or counterclaim of any kind,
notwithstanding that the Pledgor's rights against the Borrower may
be impaired, destroyed or otherwise affected by reason of any
action or inaction on the part of the Indenture Trustee.
(c) The Pledgor hereby expressly waives the
benefits of any laws purporting to allow a guarantor or pledgor to
revoke a continuing guaranty or pledge with respect to any
transactions occurring after the date of the guaranty or pledge.
13. Term. This Pledge Agreement shall remain in
full force and effect until the Liabilities have been fully and
indefeasibly paid in cash, all commitments to lend under the
Indenture have expired and the Indenture has been terminated
pursuant to its terms. Upon the termination of this Pledge
Agreement as provided above (other than as a result of the sale of
the Pledged Collateral), the Indenture Trustee will release the
security interest created hereunder and, if they then have
possession of the Pledged Stock, will deliver the Pledged Stock
and the Powers to the Pledgor.
14. Definitions. The singular shall include the
plural and vice versa and any gender shall include any other
gender as the context may require.
15. Successors and Assigns. This Pledge
Agreement shall be binding upon and inure to the benefit of the
Pledgor, the Indenture Trustee and its respective successors and
assigns. The Pledgor's successors and assigns shall include,
without limitation, a receiver, trustee or debtor-in-possession of or
for the Pledgor.
16. GOVERNING LAW. THIS PLEDGE
AGREEMENT HAS BEEN EXECUTED AND DELIVERED BY
THE PARTIES HERETO IN NEW YORK, NEW YORK. ANY
DISPUTE BETWEEN THE INDENTURE TRUSTEE AND THE
PLEDGOR ARISING OUT OF OR RELATED TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAWS BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAWS PROVISIONS.
17. Consent to Jurisdiction; Counterclaims; Forum
Non Conveniens. (a) Exclusive Jurisdiction. Except as provided
in subsection (b) of this Section 17, the Indenture Trustee and the
Pledgor agree that all disputes between them arising out of or
related to the relationship established between them in connection
with this Pledge Agreement, whether arising in contract, tort,
equity, or otherwise, shall be resolved only by state or federal
courts located in New York, New York, but the parties
acknowledge that any appeals from those courts may have to be
heard by a court located outside of New York, New York.
(b) Other Jurisdictions. The Indenture Trustee
shall have the right to proceed against the Pledgor or its property
in a court in any location to enable the Indenture Trustee to obtain
personal jurisdiction over the Pledgor, to realize on the Pledged
Collateral or any other security for the Liabilities or to enforce a
judgment or other court order entered in favor of the Indenture
Trustee. The Pledgor shall not assert any permissive
counterclaims in any proceeding brought by the Indenture Trustee
arising out of or relating to this Pledge Agreement.
(c) Venue; Forum Non Conveniens. Each of the
Pledgor and the Indenture Trustee waives any objection that it
may have (including, without limitation, any objection to the
laying of venue or based on forum non conveniens) to the location
of the court in which any proceeding is commenced in accordance
with this Section 17.
18. WAIVER OF JURY TRIAL. EACH OF THE
PLEDGOR AND THE INDENTURE TRUSTEE WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN THE INDENTURE TRUSTEE AND THE
PLEDGOR ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS PLEDGE
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH. EITHER THE PLEDGOR OR
THE INDENTURE TRUSTEE MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS PLEDGE
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
19. Waiver of Bond. The Pledgor waives the
posting of any bond otherwise required of the Indenture Trustee in
connection with any judicial process or proceeding to realize on
the Pledged Collateral or any other security for the Liabilities, to
enforce any judgment or other court order entered in favor of the
Indenture Trustee, or to enforce by specific performance,
temporary restraining order, or preliminary or permanent
injunction, this Pledge Agreement or any other agreement or
document between the Indenture Trustee and the Pledgor.
20. Advice of Counsel. The Pledgor represents
and warrants to the Indenture Trustee that it has consulted with its
legal counsel regarding all waivers under this Pledge Agreement,
including without limitation those under Section 12 and Sections
16 through 19 hereof, that it believes that it fully understands all
rights that it is waiving and the effect of such waivers, that it
assumes the risk of any misunderstanding that it may have
regarding any of the foregoing, and that it intends that such
waivers shall be a material inducement to the Indenture Trustee to
extend the indebtedness secured hereby.
21. Severability. Whenever possible, each
provision of this Pledge Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but, if
any provision of this Pledge Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Pledge Agreement.
22. Further Assurances. The Pledgor agrees that it
will cooperate with the Indenture Trustee and will execute and
deliver, or cause to be executed and delivered, all such other stock
powers, proxies, instruments and documents, and will take all such
other actions, including, without limitation, the execution and
filing of financing statements, as the Indenture Trustee may
reasonably request from time to time in order to carry out the
provisions and purposes of this Pledge Agreement.
23. The Indenture Trustee' Duty of Care. The
Indenture Trustee shall not be liable for any acts, omissions, errors
of judgment or mistakes of fact or law including, without
limitation, acts, omissions, errors or mistakes with respect to the
Pledged Collateral, except for those arising out of or in connection
with the Indenture Trustee's (i) gross negligence or willful
misconduct, or (ii) failure to use reasonable care with respect to
the safe custody of the Pledged Collateral in the Indenture
Trustee's possession. Without limiting the generality of the
foregoing, the Indenture Trustee shall be under no obligation to
take any steps necessary to preserve rights in the Pledged
Collateral against any other parties but may do so at its option.
All expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall constitute part of the Liabilities
secured hereby.
24. Notices. All notices and other communications
required or desired to be served, given or delivered hereunder
shall be made in writing or by a telecommunications device
capable of creating a written record and shall be addressed to the
party to be notified as follows:
if to the Pledgor, at
Aegis Capital Markets, Inc. (d/b/a Markets)
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Indenture Trustee, at
Norwest Bank Minnesota, National Association,
as Trustee
Corporate Trust Department
▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to
III Offshore Advisors
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
III Finance, Ltd.
c/o Admiral Administration Ltd.
Anchorage Center, 2nd Floor
Grand Cayman, Cayman Islands
British West Indies
Attention: ▇▇▇▇▇ Bree
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as designated by such
party in a written notice to the other party. All such notices and
communications shall be deemed to be validly served, given or
delivered (i) three (3) days following deposit in the United States
mails, with proper postage prepaid; (ii) upon delivery thereof if
delivered by hand to the party to be notified; (iii) one Business
Day after delivery thereof to a reputable overnight courier service,
with delivery charges prepaid; or (iv) upon transmission thereof
with confirmation of successful transmission from the sending
telecommunications device, if sent by telecommunications device.
25. Amendments, Waivers and Consents. No
amendment or waiver of any provision of this Pledge Agreement
nor consent to any departure by the Pledgor herefrom, shall in any
event be effective unless the same shall be in writing and signed
by each of the Indenture Trustee pursuant to the terms of the
Indenture, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given.
26. Section Headings. The section headings herein
are for convenience of reference only, and shall not affect in any
way the interpretation of any of the provisions hereof.
27. Execution in Counterparts. This Pledge
Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which shall together
constitute one and the same agreement.
28. Merger. This Pledge Agreement represents the
final agreement of the Pledgor with respect to the matters
contained herein and may not be contradicted by evidence of prior
or contemporaneous agreements, or subsequent oral agreements,
between the Pledgor and the Indenture Trustee.
29. Bailment, Agency for Possession; Stock
Powers. The Indenture Trustee hereby appoints III Finance as its
agent for purposes of perfecting its security interests and liens on
the Pledged Collateral. The Indenture Trustee hereby agrees that
upon the payment in full of all Senior Indebtedness by AAF, and
provided that there shall be indebtedness owing by the Pledgor
under the Indenture after payment of all Senior Indebtedness, III
Finance shall deliver to the Indenture Trustee the Pledged Stock
then in its possession, together with all stock powers related
thereto and until such time, the Indenture Trustee shall not possess
any Pledged Stock nor any stock powers related thereto.
30. Subordination. The Pledgor expressly
covenants and agrees, and the Indenture Trustee acknowledges,
that the indebtedness secured hereby and the liabilities of the
Pledgor hereunder are expressly made subordinate and subject in
prior right of payment to the prior payment of Senior Indebtedness
to the extent and in the manner set forth in Article XII of the
Indenture.
IN WITNESS WHEREOF, the Pledgor and the
Indenture Trustee have executed this Pledge Agreement as of the
date set forth above.
AEGIS CAPITAL MARKETS, INC.
(D/B/A MARKETS)
By:________________________
Name: ___________________
Title: __________________
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:
_________________________
Name:
___________________
Title:
____________________
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a
copy of the foregoing Pledge Agreement, agrees promptly to note
on its books the security interests granted under such Pledge
Agreement, and waives any rights or requirement at any time
hereafter to receive a copy of such Pledge Agreement in
connection with the registration of any Pledged Collateral in the
name of the Lenders or its nominee or the exercise of voting
rights by the Lenders or their nominees.
RECEIVABLES FINANCE 92-1
INCORPORATED
By:___________________________
Name: _____________________
Title: _____________________
RECEIVABLES FINANCE 93-1
INCORPORATED
By:___________________________
Name: _____________________
Title: ______________________
MF RECEIVABLE FINANCE COMPANY
By:___________________________
Name: _____________________
Title: ______________________
MF COMMISSION FINANCE 1994-1
CORPORATION
By:___________________________
Name: _____________________
Title: ______________________
EXHIBIT A
to
PLEDGE AGREEMENT
dated as of April 30, 1997
Pledged Stock Certificates
Number of
Name of Direct
Issued and
Subsidiary
Outstanding Shares
Commission Finance 92-1 Incorporated
[__________]
Receivables Finance 93-1 Incorporated
[__________]
MF Receivable Finance Company
[__________]
MF Commission Finance 1994-1 Corporation
[__________]
TABLE OF CONTENTS
1. Pledge........................................................2
2. Security for Liabilities......................................2
3. Pledged Collateral Adjustments................................2
4. Subsequent Changes Affecting Pledged Collateral...............3
5. Representations and Warranties................................3
6. Voting Right..................................................4
7. Dividends and Other Distributions.............................4
8. Transfers and Other Liens.....................................5
9. Remedies......................................................6
10. Security Interest Absolute...................................7
11. Indenture Trustee Appointed Attorney-in-Fact.................7
12. Waivers......................................................7
13. Term.........................................................8
14. Definitions..................................................8
15. Successors and Assigns.......................................8
16. GOVERNING LAW................................................8
17. Consent to Jurisdiction; Counterclaims; Forum Non
Conveniens...................................................8
18. WAIVER OF JURY TRIAL.........................................9
19. Waiver of Bond...............................................9
20. Advice of Counsel............................................9
21. Severability.................................................9
22. Further Assurances..........................................10
23. The Indenture Trustee' Duty of Care.........................10
24. Notices.....................................................10
25. Amendments, Waivers and Consents............................11
26. Section Headings............................................11
27. Execution in Counterparts...................................11
28. Merger......................................................11
29. Bailment, Agency for Possession; Stock Powers...............11
30. Subordination...............................................11
EXHIBITS
EXHIBIT A Pledged Stock Certificates
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