Exhibit 10.66
PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT is made this 28 day of February 1997, between Johan
Wassenaar ("Wassenaar") and Anne Wassenaar (collectively, the "Pledgor") on the
one hand, and TRIMARK PICTURES, INC., a California corporation (the "Company")
on the other hand, with reference to the following facts:
Concurrently herewith, the Company is making a loan to Wassenaars in the
aggregate principal amount of up to $250,000 evidenced by that certain Secured
Promissory Note dated of even date herewith (the "Note"), which Note is attached
hereto as Exhibit A and incorporated herein by reference as though set forth in
full. The Pledgor has agreed to pledge the collateral described herein to the
Company as collateral security for the repayment of the Note.
In consideration of the promises and covenants contained herein, and in
order to secure the Note, the parties hereto hereby agree as follows:
1. Pledge. For good and valuable consideration, the receipt of which is
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hereby acknowledged, the Pledgor hereby pledges, hypothecates, assigns,
transfers, sets over and delivers unto the Company, and grants the Company a
security interest in 141,800 shares of common stock of Trimark Holdings,
Inc.("Holdings") represented by Certificate Nos. V 1246, 1260 and 1267 (the
"Shares") with attached stock powers duly endorsed by the Wassenaars in blank.
The Company shall not encumber or dispose of the Shares except in accordance
with the terms and provisions of this Pledge Agreement.
2. Additional Security. In the event that at any time during the term
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of this Pledge Agreement the "current market value" of the Shares is not at
least equal to 200% of the then aggregate outstanding principal balance and
accrued but unpaid interest owed under the Note (the "Deficiency"), the Pledgor
agrees to promptly pledge and deliver to the Company and to grant the Company a
security interest in such additional number of shares of Holdings stock (or, if
Johan Wassenaar does not then own sufficient shares of Holdings stock, such
other security deemed appropriate by the Company) having a current market value
at
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least equal to 200% of the Deficiency. Such additional shares shall be subject
to the same provisions of this Pledge Agreement as the Shares. The "current
market value" of the Shares shall be determined in compliance with section
207.2(c) of Regulation G of the Federal Reserve Board and to the extent
consistent therewith shall be computed by multiplying the number of Shares by
the closing price of Holdings common stock on the NASDAQ Stock Market on the day
in question as reported in The Wall Street Journal, or, if shares of Holdings
common stock are not at such time quoted on the NASDAQ Stock Market, the closing
price or the average of the closing bid and asked prices in the over-the-counter
market as reported in The Wall Street Journal, or if not so reported, as
otherwise reported by the NASDAQ Stock Market or by the National Quotations
Bureau, Incorporated, or similar organization, or, if no such quotations are
available, the fair market price as determined by the Company (whose
determination shall be conclusive).
3 Voting Right. So long as the Pledgor is not in default in the
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performance of any of the terms or conditions of this Pledge Agreement or the
Note, the Pledgor shall have all voting rights attaching to the Shares.
However, notwithstanding the foregoing, upon the occurrence and during the
continuance of any default by the Pledgor in the performance of any of the terms
of this Pledge Agreement or the Note, there shall become vested immediately in
the Company exclusive authority to exercise all voting rights relative to the
Shares.
4. Representations. The Pledgor hereby represents and warrants that there
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are now, and during the term of this Pledge Agreement will be, no restrictions
upon his transfer of the Shares, other than under the securities laws, state or
federal including without limitation, the Securities Act of 1933, as amended,
and that the Pledgor has the right to pledge the Shares in accordance with the
terms of this Pledge Agreement and the Note, free of any other encumbrances or
claims whatsoever
5. Stock Adjustments. In the event that during the term of this
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Pledge Agreement any stock dividend, reclassification, adjustment,
recapitalization or any other change is declared or effected in the capital
structure of Holdings, or any distributions in property or otherwise are made on
or in respect of the Shares, whether resulting from any stock dividend,
reclassification, adjustment, recapitalization or any other change relative to
the Shares or received in exchange for the
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Shares, or any part thereof, or as a result of any merger, consolidation,
acquisition, or other exchange of assets, all new, substituted or additional
shares, or other securities, property or distributions issued or received by the
Pledgor by reason of any of the foregoing occurrences shall be held by the
Company under the terms of this Pledge Agreement, and in the same manner as the
Shares are being held hereunder.
6. Payment of Note. Upon payment of the Note in full and all accrued but
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unpaid interest thereon, and when all of the terms and conditions of the Note
are satisfied, the Company shall deliver to the Pledgor the Shares, or such
portion thereof then being held by the Company hereunder, free and clear of any
lien of the Company.
7. Default. In the event that the Pledgor defaults in the performance of
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any of the terms or conditions of this Pledge Agreement or of the Note, and
provided that the Company has given the Pledgor five (5) days' written notice of
such default and within such period the default has not been cured, the Company
shall have all of the rights and remedies as provided by the Uniform Commercial
Code then in force in the State of California. In order to effectuate the
foregoing in the circumstances in which the collateral consists of the Shares,
upon any uncured default by the Pledgor, the fair market value of the Shares (as
determined in accordance with Paragraph 2 hereof) shall be computed as of the
close of business of the next business day following expiration of the cure
period. The Company shall retain such number of Shares having a fair market
value equal to the outstanding principal balance of the Note and all accrued but
unpaid interest thereon, plus the amount of the expenses incurred by the Company
arising out of the default, including, but not limited to, reasonable attorney's
fees, and shall return the balance of the Shares to the Pledgor. The Shares
retained by the Company shall be reissued in the Company's or Holdings name and
shall be held by the Company or Holdings as treasury stock and shall thereafter
not be subject to the provisions of this Pledge Agreement. In the event that the
fair market value of the Shares is less than the outstanding principal balance
of the Note, accrued but unpaid interest thereon, plus the foregoing expenses,
Wassenaar shall remain liable to the Company for any such deficiency.
8. Power of Attorney. The Pledgor hereby appoints the Company
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as the Pledgor's attorney-in-fact for the purposes of carrying
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out the provisions of this Pledge Agreement, and taking any action and executing
any instrument which the Company may deem necessary or advisable to accomplish
the purposes hereof, which appointment is irrevocable and is coupled with an
interest.
9. No Waiver. No failure on the part of the Company to exercise, and no
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delay 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 exclude any other further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10. Termination. This Pledge Agreement shall terminate when the Note and
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all interest accrued thereon have been paid in full, and when all of the other
terms and conditions of this Pledge Agreement and the Note have been fully
performed and satisfied.
11. Binding Agreement; Assignment. This Pledge Agreement and the terms,
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covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and to the holders of all indebtedness secured hereby and
their respective heirs, successors and permitted assigns; provided, however,
that the Pledgor shall not be permitted to assign his rights in, or obligations
under, this Pledge Agreement or any other interest herein, or any interest in
the Shares, or any part thereof, or otherwise pledge, encumber or grant any
option with respect to the Shares, or any part thereof, or any other property
held by the Company as collateral security under this Pledge Agreement.
With the Company's consent the Pledgor shall retain the right to sell Shares at
any time for the sole purpose of reducing the Note, provided that the proceeds
of the Shares are paid directly to the Company.
12. Law. This Pledge Agreement shall be construed in accordance with and
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governed by the laws of the State of California.
13. Representation. The execution of this Pledge Agreement by Wassenaar
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constitutes an acknowledgment and representation that Anne Wassenaar has at
least a half (50%) community property interest in the Shares.
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14. Notices. All notices, consents, demands or other communications
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required or permitted to be given pursuant to this Pledge Agreement shall be in
writing and shall be deemed sufficiently given on (i) the day on which delivered
personally or delivered by fax (with prompt confirmation by mail) during a
business day to the appropriate location listed as the address below, or (ii)
two (2) business days after the posting thereof by United States registered or
certified first class mail, return receipt requested with postage and fees
prepaid.
IN WITNESS WHEREOF, the parties hereto have executed this Pledge
Agreement on the date first above written.
PLEDGOR:
/s/
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JOHAN WASSENAAR
Address:
1510 Cantera Avenue
Santa Barbara, CA 93110
/s/
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ANNE WASSENAAR
Address:
132 Eucalyptus Hill Circle
Santa Barbara, CA 93103-2806
COMPANY:
TRIMARK PICTURES, INC.
a California corporation
By:____________________________
Its:___________________________
Address:
2644 30th Street
Santa Monica, CA 90405
Attn: Chief Financial Officer
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