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PLEDGE AGREEMENT
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November 4, 1996
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Date
1. To secure the prompt, punctual, and faithful performance of
all and each of the Liabilities (as that term is defined herein) of DM
Management Company (hereinafter, the "Borrower") to Fleet National Bank, a
national banking association with office at One Federal Street, Boston,
Massachusetts (herein after, the "Bank"), DM Management Security Corporation,
(the "Pledgor"), the wholly owned subsidiary of the Borrower, hereby grants to
the Bank a security interest in and to, and assigns, pledges, and delivers to
the Bank the following property, and all products, proceeds, substitutions,
additions, interest, dividends, and other distributions (including, without
limitation, stock splits) in respect thereto, and all books, records, and papers
relating to the foregoing (all of which is referred to hereinafter as the
"Collateral"):
Account #0123680070 maintained with the Bank
2. The Pledgor represents that the Collateral is held and owned
by the Pledgor free and clear of all liens, encumbrances, attachments, security
interests, pledges, and charges, other than those in favor of the Bank and those
permitted by the Notes (as hereafter defined), and if the Collateral is
securities, is fully paid for and nonassessable.
3. The Pledgor shall
(a) execute all such instruments, documents, and papers,
and will do all such acts as the Bank may request from time to time to
carry into effect the provisions and intent of this Agreement,
including, without limitation, the execution of stop transfer orders,
stock powers, noti fications to obligors on the Collateral, the
providing of notifications in connection with book entry securities or
general intangibles, and the providing of instructions to the issuers
of uncertificated securities, and will do all such other acts as the
Bank may request with respect to the perfection and protection of the
security interest granted herein and the assignment effected hereby;
(b) keep the Collateral free and clear of all liens,
encumbrances, attachments, security interests, pledges, and charges
other than those in favor of the Bank and those permitted by the Notes
(as hereafter defined);
(c) deliver to the Bank, if and when received by the
Pledgor, any item representing or constituting any of the Collateral,
including, without limitation, all unreinvested cash dividends and all
stock certificates whether now existing or hereafter received as a
result of any stock dividends, stock splits or other transaction;
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(d) upon the request of the Bank, cause the issuer of any
uncerti ficated securities comprising any of the Collateral to issue
certificates with respect thereto;
(e) upon the request of the Bank, cause certificated
securities comprising any of the Collateral to be issued in the name of
the Bank, as pledgee;
(f) not cause or permit any of the Collateral presently
evidenced by written certificates to be converted to uncertificated
securities;
(g) not exercise any right with respect to the Collateral
which would dilute or adversely affect the Bank's rights in the
Collateral;
(h) not file any affidavit for replacement of lost stock
certifi cates or bonds; and
(i) not vote the Collateral in favor of or consent to any
resolu tion which might
(i) impose any restrictions upon the sale, transfer, or
disposition of the Collateral; or
(ii) result in the issuance of any additional shares of
stock of any class; or
(iii) vest additional powers, privileges, preferences, or
priorities to any other class of stock.
4. Upon the occurrence of any one or more of the following events
of default (herein, "Events of Default"), the Bank may exercise the Bank's
rights and remedies upon default: (a) The failure by the Borrower to pay upon
demand (or when due, if not payable on demand), and after the expiration of any
applicable grace or cure periods, any of the Liabilities; (b) The failure by the
Borrower or the Pledgor to promptly, punctually, and faithfully perform,
discharge, or comply with any Liability, after the expiration of any applicable
grace or cure periods.
5. Upon the occurrence of any Event of Default, and at any time
there after, while such Event of Default is continuing, the Bank shall have all
of the rights and remedies of a secured party upon default under the Uniform
Commercial Code as adopted in Massachusetts, in addition to which the Bank may
sell or otherwise dispose of the Collateral and/or enforce and collect the
Collateral (including, without limitation, the liquidation of debt instruments
or securities and the exercise of conversion rights with respect to convertible
securities, whether or not such instruments or securities have matured and
whether or not any penalties or other charges are imposed on account of such
action), for application towards (but not necessarily in complete satisfaction
of) the Liabilities. The Borrower shall remain liable to the Bank for any
deficiency remaining following such application. Unless the Collateral is
perishable, threatens to decline speedily in value, or is of a type customarily
sold on a recognized market (in which event the Bank shall give the Pledgor such
notice as may be practicable under the circumstances), the Bank shall give the
Pledgor at
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least the greater of the minimum notice required by law or seven (7) days prior
written notice of the date, time, and place of any public sale thereof or of the
time after which any private sale or any other intended disposition is to be
made. The Pledgor acknowledges that any exercise by the Bank of the Bank's
rights upon default may be subject to compliance by the Bank with any statute,
regulation, ordinance, directive, or order of any federal, state, municipal, or
other governmental authority, including, without limitation, any of the
foregoing restricting the sale of securities. The Bank, in its sole discretion
at any such sale, may restrict the prospective bidders or purchasers as to their
number, nature of business and investment intention, and impose without
limitation, a re quirement that the persons making such purchases represent and
agree, to the satisfaction of the Bank, that they are purchasing the Collateral
for their own account, for investment, and not with a view to the distribution
or resale thereof. The proceeds of any collection or of any sale or disposition
of the Collateral held pursuant to this Agreement shall be applied towards the
Liabili ties in such order and manner as the Bank determines in its sole
discretion, any statute, custom, or usage to the contrary notwithstanding.
6. The Pledgor hereby designates the Bank as and for the
attorney-in-fact of the Pledgor to: endorse in favor of the Bank any of the
Collateral; cause the transfer of any of the Collateral in such name as the Bank
may, from time to time, determine; cause the issuance of certificates for book
entry and/or uncertificated securities; renew, extend, or roll over any
Collateral; and make demand and initiate actions to enforce any of the
Collateral. The Bank may take such action with respect to the Collateral as the
Bank may reasonably determine to be necessary to protect and preserve its
interest in the Collateral. The Bank shall also have and may exercise at any
time all rights, remedies, powers, privileges, and discretions of the Pledgor
with respect to and under the Collateral, provided, however, the Bank shall have
no right to exercise any voting rights available to holders of the Collateral at
any time the Collateral is held by the Bank solely as pledgee hereunder, and
whether or not an Event of Default has occurred. All of the rights, remedies,
powers, privileges and discretions included in this Paragraph 6, may be
exercised by the Bank only after the occurrence of an Event of Default and
during the continuance thereof. The within designation, being coupled with an
interest, is irrevocable until the within instrument is terminated by a written
instrument executed by a duly authorized officer of the Bank. The power of
attorney shall not be affected by subsequent disability or incapacity of the
Pledgor. The Bank shall not be liable for any act or omission to act pursuant to
this Paragraph except for any act or omission to act which is in actual bad
faith, is negligent or constitutes willful misconduct.
7. The rights, remedies, powers, privileges, and discretions of
the Bank hereunder (hereinafter, the "Bank's Rights and Remedies") shall be
cumulative and not exclusive of any rights, remedies, powers, privileges or
discretions which it otherwise may have. No delay or omission by the Bank in
exercising or enforcing any of the Bank's Rights and Remedies shall operate as,
or constitute, a waiver thereof. No waiver by the Bank of any Event of Default
or of any default under any other agreement shall operate as a waiver of any
other default hereunder or under any other agreement. No exercise of any of the
Bank's Rights and Remedies and no other agreement or transaction of whatever
nature entered into between the Bank and the Pledgor at any time shall preclude
any other exer cise of the Bank's Rights and Remedies. No waiver by the Bank of
any of the
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Bank's Rights and Remedies on any one occasion shall be deemed a waiver on any
subsequent occasion, nor shall it be deemed a continuing waiver. All of the
Bank's Rights and Remedies and all of the Bank's rights, remedies, powers,
privileges, and discretions under any other agreement or transaction are
cumulative and not alternative or exclusive and may be exercised by the Bank at
such time or times and in such order of preference as the Bank in its sole
discretion may determine.
8. As used herein, the following terms have the following
meanings:
(a) "Liability" and "Liabilities" means and refers to the
Borrower's $8,000,000.00 Commercial Promissory Grid Note, $3,600,000.00
Commercial Promissory Grid Note, and $400,000.00 Commercial Promissory
Time Note, each of even date, as amended (collectively, the "Notes").
"Liabilities" also means and refers to all interest and other amounts
which may be charged to the Borrower and/or which may be due from the
Borrower to the Bank from time to time on the Notes. "Liabilities" also
means and refers to any and all obligations of the Pledgor and the
Borrower to act or to refrain from acting in accordance with the terms,
provisions, and covenants of the Notes and this Agreement.
(b) "Costs of Collection" includes, without limitation, all
attorneys' reasonable fees, and out-of-pocket expenses incurred by the
Bank's attorneys, and all costs incurred by the Bank in the
administration of the Liabilities, this Agreement, and all other
instruments and agreements executed in connection with or relating to
the Liabilities including, without limitation, costs and expenses
associated with travel on behalf of the Bank. Costs of Collection also
includes, without limitation, all attorneys' fees, out-of-pocket
expenses incurred by the Bank's attorneys, and all costs and expenses
incurred by the Bank, includ ing, without limitation, costs and
expenses associated with travel on behalf of the Bank, which costs and
expenses are directly or indirectly related to or in respect of the
Bank's efforts to preserve, protect, collect, or enforce the
Collateral, the Liabilities and/or the Bank's Rights and Remedies or
any of the Bank's rights and remedies against or in respect of the any
guarantor or other person liable in respect of the Liabilities (whether
or not suit is instituted in connection with such efforts). The Costs
of Collection shall be added to the Liabilities of the Borrower to the
Bank, as if such had been lent, advanced, and credited by the Bank to,
or for the benefit of, the Borrower.
9. The Pledgor and the Borrower each (a) waives presentment,
demand, notice, and protest with respect to the Liabilities and the Collateral;
and (b) waives any delay on the part of the Bank without notice to or consent
from the Pledgor; (c) assents to any indulgence or waiver which the Bank may
grant or give any other person liable or obliged to the Bank for or on the
Liabilities without notice to or consent from the Pledgor; and (d) authorizes
the Bank to alter, amend, cancel, waive, or modify any term or condition of the
obligations of any other person liable or obligated to the Bank for or on the
Liabilities, without notice to or consent from the Pledgor; and (e) agrees that
no release of any property securing the Liabilities, without notice to or
consent from the Pledgor, shall affect the rights of the Bank with respect to
the Collateral hereunder; and
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if entitled thereto, (f) waives the right to notice and/or hearing prior to the
Bank's exercising of the Bank's rights and remedies hereunder upon default.
10. The Bank shall have no duty as to the collection or protection
of the Collateral or any income or distribution thereon, beyond the safe custody
of such of the Collateral as may come into the possession of the Bank and shall
have no duty as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Bank's Rights and Remedies may be exercised
without resort or regard to any other source of satisfaction of the Liabilities.
11. This Agreement shall be binding upon the Pledgor and upon the
Pledgor's heirs, executors, administrators, representatives, successors, and
assigns, and shall inure to the benefit of the Bank and the Bank's successors
and assigns.
12. This Agreement and all other instruments executed in
connection with the Liabilities incorporate all discussions and negotiations
between the Pledgor and the Bank concerning the matters included herein and in
such other instruments. No such discussions or negotiations shall limit, modify,
or otherwise affect the provisions hereof. No modification, amendment, or waiver
of any provision of the within Agreement or of any provision of any other
agreement between the Pledgor and the Bank shall be effective unless executed in
writing by a duly authorized officer of the party to be charged with such
modification, amendment of waiver.
13. This Agreement and all other documents in the Bank's
possession which relate to the Liabilities may be reproduced by the Bank by any
photographic, photostatic, microfilm, micro-card, miniature photographic,
xerographic, or similar process, and, with the exception of instruments
constituting the Collateral, the Bank may destroy the original from which any
document was so reproduced. Any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and any enlargement,
facsimile, or further repro duction shall likewise be admissible in evidence.
14. This Agreement, and all rights and obligations hereunder,
including matters of construction, validity, and performance, shall be governed
by the laws of The Commonwealth of Massachusetts. The Pledgor submits to the
jurisdiction of the courts of said Commonwealth for all purposes with respect to
the within Agreement and the Pledgor's relationships with the Bank.
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15. It is intended that this Agreement take effect as a sealed
instrument.
Signed in my Presence DM MANAGEMENT COMPANY
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(Borrower)
/s/ David R. Pierson By: /s/ Olga L. Conley
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David R. Pierson Olga L. Conley
Print Name:------------------------- Print Name:---------------------------
VP of Finance
Title:--------------------------------
DM MANAGEMENT SECURITY CORPORATION
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(Pledgor)
By: /s/ Olga L. Conley
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Print Name: Olga L. Conley
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Title: Treasurer
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