EXHIBIT 10(C)
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of July 9, 1997, made by Astrex, Inc., a
Delaware corporation, having offices at 205 Express Street, Plainview, New York
11803 (the "Pledgor"), in favor of Fleet National Bank, a national banking
association, having offices at One Landmark Square, Stamford, Connecticut 06901
(the "Secured Party").
W I T N E S S E T H :
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WHEREAS, T.F. Cushing, Inc., a Massachusetts corporation having offices at
126 Myron Street, West Springfield, Massachusetts 01089 ("TFCI"), is a
wholly-owned subsidiary of Pledgor and Pledgor is the record and beneficial
owner of 99 shares of the common stock, no par value, of TFCI (the "TFCI Common
Stock"); and
WHEREAS, AVest, Inc., a Delaware corporation having offices at 205 Express
Street, Plainview, New York ("AVest"), is a wholly-owned subsidiary of Pledgor
and Pledgor is the record and beneficial owner of 11,725,907 shares of the
common stock, par value $0.001 per share of AVest (the "AVest Common Stock");
and
WHEREAS, the TFCI Common Stock and the AVest Common Stock (collectively,
the "Common Stock") constitute 100% of the issued and outstanding capital stock
of each of TFCI and AVest, respectively; and
WHEREAS, simultaneously with the execution and delivery of this Pledge
Agreement, the Pledgor and the Secured Party are executing and delivering a
Credit and Security Agreement (as same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), of even date herewith; and
WHEREAS, the execution and delivery of this Pledge Agreement by Pledgor is
a condition precedent to the Secured Party extending any credit or other
financial accommodations to the Pledgor under the Credit Agreement; and
WHEREAS, the Pledgor shall derive substantial and material benefits,
financial and otherwise, from any extension of credit or any other financial
accommodation to such Pledgor under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Secured
Party to extend any credit or any other financial accommodation to the Pledgor
under the Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Pledgor hereby
agrees with the Secured Party as follows:
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1. DEFINED TERMS. The following terms shall have the following meanings as
used herein:
"BUSINESS DAY": any day other than Saturday or Sunday or other day in which
banks are authorized to be closed in the State of Connecticut.
"CODE": the Uniform Commercial Code from time to time in effect in the
State of Connecticut.
"COLLATERAL": any and all of the following (whether any item is mentioned
once or more than once and whether now existing or arising at any time(s)
in the future): (i) the shares of Common Stock listed on Schedule I
attached hereto and made a part hereof, (ii) all other Pledged Stock, (iii)
any and all other property (tangible or intangible) identified herein as
additional collateral, and (iv) any and all Proceeds of any and all of the
foregoing.
"EVENT OF DEFAULT": the occurrence of any of the following (whether or not
an event or circumstance is mentioned once or more than once): (i) any
failure of the Pledgor to pay when due (whether due at maturity or by
reason of demand or acceleration or otherwise) any other Obligation beyond
any period of grace (if any) applicable thereto; (ii) any "Event of
Default" as defined in the Credit Agreement or the occurrence or existence
of any other event or condition the effect of which event or condition is
to cause, or permit the Secured Party to cause, with the giving of notice
if required, any of the liabilities or other obligations of the Borrower or
any of the Obligations to become due prior to its stated maturity or, in
the case of any such liabilities or other obligations or any Obligations
consisting of a guaranty or the like, to become payable; (iii) any
representation or warranty made by the Pledgor hereunder proves to have
been incorrect or misleading in any material respect; (iv) any default by
the Pledgor in the observance or performance of Section 5(b) hereof; or (v)
any default by the Pledgor in the observance or performance of any other
covenant or agreement set forth herein and such default shall continue
unremedied for a period of thirty (30) calendar days after written notice
of such default shall have been given to the Pledgor by the Secured Party.
"LIEN": any security interest, mortgage, lien, pledge, charge, title
retention agreement, hypothecation, levy, execution, seizure, attachment,
garnishment, voting agreement, assignment or other encumbrance.
"OBLIGATIONS": any and all Secured Obligations as such term is defined in
the Credit Agreement. The Obligations shall include, but shall not be
limited to, all
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indebtedness, liabilities, covenants and duties of, all terms and
conditions to be observed by, and all other obligations of the Pledgor
under this Pledge Agreement, whether now existing or hereafter arising.
"PERSON": any individual, corporation, partnership, trust or unincorporated
organization, a government or any agency or political subdivision thereof,
or other entity.
"PLEDGE AGREEMENT": this Pledge Agreement, as same may be amended,
supplemented or otherwise modified from time to time.
"PLEDGED STOCK": any and all of the following: (i) the shares of Common
Stock listed on Schedule I attached hereto and made a part hereof, (ii) all
capital stock, rights, options, or other securities identified herein as
additional collateral and (iii) any and all stock certificates or other
instruments or other writings evidencing any stock, rights, options or
other securities referred to in clauses (i) or (ii) above.
"PROCEEDS": proceeds of every kind, nature and description and in whatever
form (whether cash or non-cash) including, but not limited to, any and all
dividends or other income from the Pledged Stock, collections thereon or
distributions with respect thereto.
2. GRANT OF SECURITY INTEREST. The Pledgor hereby delivers to the Secured
Party all the Pledged Stock listed on Schedule I and hereby grants to the
Secured Party a first priority security interest in the Collateral, as
collateral security for the full and prompt payment, performance and observance
when due (whether due at the stated maturity, by demand, acceleration or
otherwise) of the Obligations.
This Pledge Agreement shall create a continuing security interest in the
Collateral which shall remain in effect until all the Obligations, now existing
or hereafter arises, shall have been paid in full and the Credit Agreement, the
Note and the Security Documents shall no longer be in effect.
3. STOCK POWERS. Concurrently with the delivery to the Secured Party of
each certificate or other instrument or other writing representing one or more
shares of Pledged Stock, the Pledgor shall deliver an undated stock power
covering such certificate, instrument or other writing duly executed in blank by
the Pledgor with, if the Secured Party so requests, signature guaranteed.
4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants
that:
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(a) the shares of Pledged Stock listed on Schedule I constitute 100% of all
the issued and outstanding shares of all classes of the capital stock of each of
TFCI and AVest;
(b) all the shares of the Pledged Stock listed on Schedule I have been duly
and validly issued and are fully paid and nonassessable and there are no pending
or contingent restrictions on transferability;
(c) the Pledgor is the record, legal and beneficial owner of, and has good
and marketable title to, the Pledged Stock listed on Schedule I, free of any and
all Liens or options in favor of, or claims of, any other Person, except the
Lien created by this Pledge Agreement;
(d) upon delivery to the Secured Party of the stock certificates evidencing
the Pledged Stock listed in Schedule I, the security interest granted pursuant
to this Pledge Agreement will constitute a valid, perfected first priority
security interest in the Collateral, enforceable as such against the Pledgor and
all those parties; and
(e) this Pledge Agreement is the legal, valid and binding obligation of the
Pledgor, enforceable in accordance with its terms, and the execution, delivery
and performance of this Agreement by the Pledgor does not and will not violate
any applicable law, or any agreement or instrument applicable to the Pledgor or
any of Pledgor's property.
5. COVENANTS. The Pledgor covenants and agrees with the Secured Party that,
from and after the date of this Pledge Agreement until the Obligations are paid
in full, any and all credit facilities between Pledgor and the Secured Party are
terminated and the security interest granted pursuant to this Pledge Agreement
is released:
(a) If the Pledgor (i) shall, as a result of Pledgor's ownership of any of
the Pledged Stock, become entitled to receive or shall receive any shares of
capital stock (including, without limitation, any shares of capital stock
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option(s), rights, or other securities or
other property whether in addition to, in substitution of, as a conversion of,
or in exchange for any shares of any Pledged Stock, or otherwise in respect
thereof or (ii) shall at any time otherwise for any reason receive any capital
stock, options, warrants or other equity securities of each of TFCI and AVest or
any securities convertible into or granting the right to purchase or exchange
for any stock or other equity securities of each of TFCI and AVest (whether or
not any of the securities referred to in this clause (ii) are related to the
Pledged Stock identified on Schedule I or any other Pledged Stock), the Pledgor
shall accept any and all of the same as the agent of the Secured Party, hold the
same in trust for the Secured Party and deliver (to the extent same are
certificated or otherwise evidenced by an instrument or other writing) any and
all certificates, other instruments or other writings evidencing same forthwith
to the Secured Party
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in the exact form received, duly endorsed by the Pledgor to the Secured Party,
if required, together with, to the fullest extent applicable, an undated stock
power(s) covering same duly executed in blank by the Pledgor and with, if the
Secured Party so requests, signature guaranteed, any and all of the foregoing to
be held by the Secured Party, subject to the terms hereof, as additional
collateral security for the Obligations. Any sums paid upon or in respect of the
Pledged Stock (or any other Collateral) upon the liquidation or dissolution of
the TFCI and/or AVest, as the case may be, shall be paid over to the Secured
Party to be held by it hereunder as additional collateral security for the
Obligations, and in case any distribution of capital shall be made on or in
respect of the Pledged Stock (or any other Collateral) or any property (cash or
non-cash) shall be distributed upon or with respect to the Pledged Stock (or any
other Collateral) pursuant to the recapitalization or reclassification of the
capital of the Borrower or pursuant to the reorganization thereof, the property
so distributed shall be delivered to the Secured Party to be held by the Secured
Party hereunder as additional collateral security for the Obligations. If any
sums of money or property so paid or distributed in respect of the Pledged Stock
(or any other Collateral) shall be received by the Pledgor, the Pledgor shall,
until such money or property is paid or delivered to the Secured Party, hold
such money or property in trust for the Secured Party, segregated from other
funds of the Pledgor, as additional collateral security for the Obligations and
so immediately deliver it to the Secured Party.
(b) Without the prior written consent of the Secured Party, the Pledgor
will not directly or indirectly (i) vote to enable, or take any other action to
permit, TFCI and/or AVest, as the case may be, to hereafter issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of TFCI and/or AVest, as the case may be,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Collateral, or permit any action to be taken in
furtherance of any of the foregoing, or (iii) create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person with respect to, any
of the Collateral or any interest therein, except for the Lien provided for by
this Pledge Agreement and any other Liens in favor of the Secured Party. The
Pledgor will defend the right, title and interest of the Secured Party in and to
the Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of the
Secured Party, and at the sole expense of the Pledgor, the Pledgor will promptly
and duly execute and/or deliver such further instruments and other documents and
take such further actions as the Secured Party may request to perfect its
security interest in any and all Collateral, or may otherwise reasonably request
for the purposes of obtaining or preserving the full benefits of this Pledge
Agreement and of any and all of the rights, remedies and powers herein granted.
If any amount payable under or in connection with any of the Collateral shall be
or become evidenced by any promissory note, other instrument or chattel
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paper, such note, instrument or chattel paper shall be immediately delivered to
the Secured Party, duly endorsed in a manner satisfactory to the Secured Party,
to be held as additional collateral pursuant to this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Secured Party harmless from,
any and all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Pledge Agreement or the
exercise by the Secured Party of any of its rights, remedies or powers
hereunder.
6. VOTING RIGHTS; DIVIDENDS. Unless an Event of Default shall have occurred
and be continuing, the Pledgor shall be permitted to exercise all voting and
corporate rights with respect to the Pledged Stock, PROVIDED, HOWEVER, that
Pledgor covenants to the Secured Party that no vote shall be cast or corporate
right exercised or other action taken by Pledgor which, in the Secured Party's
reasonable judgment, would impair the Collateral or which would be inconsistent
with or result in any violation of any provision of any agreement or instrument
relating to any Obligation or any agreement or instrument between Secured Party
and Borrower or from Borrower to Secured Party, including without limitation the
Credit Agreement, this Agreement, or any other Financing Document (as defined in
the Credit Agreement). The Secured Party, if an Event of Default shall have
occurred or be continuing, shall have the right to receive and hold as
additional collateral any dividends or other distributions on the Pledged Stock
or other Collateral and, in the event that the Pledgor shall be delivered or
otherwise have received (or be entitled to receive) any such dividends or other
distributions, Pledgor shall hold same in trust and immediately turn over same
to the Secured Party who may hold same as additional collateral.
7. RIGHTS OF THE SECURED PARTY. (a) If any Event of Default shall occur and
be continuing, (A) any and all shares of the Pledged Stock (and any other
applicable Collateral) may, at the Secured Party's option, be registered in the
name of the Secured Party or its nominee, and/or (B) the Secured Party or its
nominee may exercise (i) all voting, corporate and any other rights pertaining
to the Pledged Stock (and any other applicable Collateral), whether at any
meeting of shareholders of TFCI and/or AVest, as the case may be, or otherwise
and/or (ii) any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining to the Pledged Stock (and any
other applicable Collateral) as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Pledged Stock (and any other applicable Collateral) upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of TFCI and/or AVest, as the case may be, or upon the
exercise by the Pledgor or the Secured Party of any right, privilege or option
pertaining to such shares of the Pledged Stock (and any other applicable
Collateral), and in connection therewith, the right to deposit and
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deliver any and all of the Pledged Stock (and any other applicable Collateral)
with any committee, depository, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability to the Pledgor, but the Secured Party shall have no duty to the
Pledgor to exercise any of the foregoing rights, privileges or options and shall
not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Secured Party under this Agreement shall not be
conditioned or contingent upon the pursuit by the Secured Party of any right or
remedy against the Pledgor or against any other Person or against any security
or collateral. The Secured Party shall have no obligation or duty (and shall not
be liable for any failure) to demand, collect, apply or realize upon all or any
part of the Collateral or for any delay in doing so, to collect or to sell or
otherwise dispose of any Collateral (whether upon the request of the Pledgor or
any other Person or otherwise and whether or not an Event of Default has
occurred or the value of the Collateral has (or may) increase or decrease), to
advise the Pledgor of any actual or anticipated changes in the value of the
Collateral, to act as an investment advisor or insurer of any of the Collateral,
to preserve rights against prior parties, to protect Collateral (except, with
respect to Collateral in its possession, as specifically set forth in Section 12
below), to take any other action whatsoever with regard to the Collateral or any
part thereof, or to seek payment from any particular source, and any such
obligation or duty is hereby waived to the fullest extent permitted by
applicable law.
8. REMEDIES. If an Event of Default shall occur and be continuing, the
Secured Party may exercise, in addition to all other rights, remedies and powers
granted in this Pledge Agreement or in any other instrument or agreement, all
rights, remedies, and powers whether as a secured party or otherwise, under the
Code or other applicable law. Without limiting the generality of the foregoing,
the Secured Party, without the need for demand of payment or other performance
or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon the Pledgor,
TFCI, AVest or any other Person (all of which demands, defenses, advertisements
and notices are hereby waived), may at any and all times demand, sue for,
collect, receive, appropriate and/or realize upon any or all of the Collateral,
and/or make any settlement or compromise which the Secured Party reasonably
deems desirable with respect to any or all Collateral, and/or sell, assign, give
option or options to purchase or otherwise dispose of and deliver any and all
the Collateral (or contract to do any of the foregoing), in one or more parcels
at public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Secured Party or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Secured Party shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption in the Pledgor, which right or equity is, to the fullest
extent permitted under applicable law, hereby waived. The Secured
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Party shall have the right to apply any Proceeds from time to time held by it
and the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred in respect thereof or incidental to the care or safekeeping by the
Secured Party (or any agent or representative of the Secured Party) of any of
the Collateral or in any way relating to the Collateral or the rights, remedies
or powers of the Secured Party hereunder, including, without limitation,
reasonable attorneys' fees and disbursements of counsel to the Secured Party, to
the payment of any and all of the Obligations (whether matured or unmatured), in
such order and manner as the Secured Party may elect, and only after such
application and after the payment by the Secured Party of any other amount
required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Secured Party account for the surplus, if any,
to the Pledgor. To the extent permitted by applicable law, the Pledgor waives
all claims, damages and demands it may acquire against the Secured Party arising
out of the exercise by the Secured Party of any rights, remedies or powers
hereunder. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, ten (10) calendar days prior written notice of the
time and place of any public sale or of the time after which any private sale or
other intended disposition is to be made shall be deemed reasonable. The Pledgor
further waives and agrees not to assert any rights or privileges which it may
acquire under Section 9-112 of the Code. The Pledgor shall remain fully liable
for any deficiency if the proceeds of any sale or other disposition or any
application of the Collateral are insufficient to pay the Obligations and the
costs and expenses of the Secured Party. Nothing contained in this Agreement
shall be interpreted or construed so as to require the Secured Party to realize
upon the Collateral prior to attempting to collect any of the Obligations, and
the Secured Party may exercise all of its various rights, remedies and powers in
such order and manner as Secured Party, in its discretion, shall deem advisable.
9. REGISTRATION RIGHTS; PRIVATE SALES. (a) If the Secured Party shall
determine to exercise its right to sell any or all of the Pledged Stock (or
other applicable Collateral) pursuant to Section 8 hereof, and if in the
reasonable judgment of the Secured Party it is necessary or advisable to have
the Pledged Stock (or other applicable Collateral), or any portion thereof, to
be sold in a transaction which is required to be registered under the provisions
of the Securities Act of 1933, as amended (the "Securities Act"), the Pledgor
will cause TFCI and/or AVest, as the case may be, to (i) execute and deliver,
and cause the directors and officers of the to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Secured Party, necessary or advisable to register the
Pledged Stock (and, if requested by the Secured Party, such other Collateral),
or that portion thereof to be sold, under the provisions of the Securities Act,
(ii) use Pledgor's best efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of one year
from the date of the first public offering of the Pledged Stock (and if
requested by the Secured Party, such other Collateral) or that portion thereof
to be sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the
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Secured Party, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Pledgor agrees to
cause TFCI and/or AVest, as the case may be, to comply with the provisions of
the securities or "Blue Sky" laws of any and all jurisdictions which the Secured
Party shall designate and to make available to its security holders, as soon as
practicable, an earnings statement which will satisfy the provisions of Section
11(a) of the Securities Act.
(b) The Pledgor recognizes that the Secured Party may be unable to effect a
public sale of any or all the Pledged Stock (or other applicable Collateral), by
reasons of certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise (including without limitation the
impracticability of such a public sale due to the value of the Pledged Stock or
otherwise), and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which 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. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. The Secured Party shall be under no
obligation to delay a sale of any of the Pledged Stock (or other Collateral) for
the period of time necessary to permit the Borrower to register such securities
for public sale under the Securities Act, or under applicable state securities
laws, even if the Borrower would agree to do so.
(c) The Pledgor further agrees to use Pledgor's best efforts to do or cause
to be done all such other acts as may be necessary to make any sale or sales of
all or any portion of the Pledged Stock (or other Collateral) pursuant to this
Pledge Agreement valid and binding and in compliance with any and all other
applicable requirements of law. The Pledgor further agrees that a breach of any
of the covenants contained in this Section 9 will cause irreparable injury to
the Secured Party, that the Secured Party has no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 9 shall be specifically enforceable against the
Pledgor, and the 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.
10. RIGHTS OF SUBROGATION, CONTRIBUTION, REIMBURSEMENT OR INDEMNITY. The
Pledgor shall not enforce any rights that the Pledgor may at any time have
against TFCI and/or AVest, as the case may be, any other guarantor or any
applicable collateral, including, but not limited to, rights of subrogation,
exoneration, indemnity, reimbursement and contribution and whether arising by
operation of law or otherwise, until all of the Obligations have been paid,
observed
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and performed in full, except that this Section shall not apply to routine acts,
such as the giving of notices and the filing of continuation statements,
necessary to preserve any such rights.
11. CERTAIN WAIVERS. The Pledgor waives (i) diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon TFCI
and/or AVest, as the case may be, or the Pledgor with respect to the Obligations
or any obligations or liabilities of the Borrower to the Secured Party and (ii)
the benefit of any marshalling doctrine with respect to the Secured Party's
exercise of its rights, remedies or powers hereunder or otherwise.
12. LIMITATION ON DUTIES REGARDING COLLATERAL. The Secured Party's sole
duty with respect to the custody, safekeeping and physical preservation and
protection of the Collateral in its possession, under Section 9-207 of the Code
or otherwise, shall be to deal with it in the same manner as the Secured Party
deals with similar securities and property for its own account. Neither the
Secured Party nor any of its officers, employees or agents shall be (i) liable
or responsible for any failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or for any change in the value of any
Collateral (whether before or after an Event of Default) or (ii) under any
obligation to sell or otherwise dispose of any Collateral, whether upon the
request of the Pledgor or otherwise.
13. POWERS COUPLED WITH AN INTEREST. All authorizations and agencies herein
contained with respect to the Collateral are irrevocable and powers coupled with
an interest.
14. SEVERABILITY. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in such jurisdiction, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. PARAGRAPH HEADINGS. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and shall not affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. NO WAIVER; CUMULATIVE REMEDIES; WAIVERS AND AMENDMENTS.
(a) The Secured Party shall not by any act (except by a written
instrument executed and delivered by the Secured Party in accordance with
subparagraph (b) below), delay, indulgence, omission or otherwise be deemed
to have waived any right, remedy or power hereunder or to have acquiesced
in any Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Secured Party, any right, remedy or power
shall operate as a waiver thereof. No single or partial exercise of any
right, remedy or power hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, remedy or power. A
waiver by the Secured Party of any right, remedy or power hereunder on
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any one occasion shall not be construed as a bar to any right, remedy or
power which the Secured Party would otherwise have on any future occasion.
The rights, remedies and powers of the Secured Party herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive
of any other rights, remedies or powers provided by applicable law or any
other agreement, instrument or other document. Secured Party may exercise
any or all such rights, remedies and powers at any time(s) in any order
which Secured Party chooses.
(b) None of the terms or provisions of this Pledge Agreement may be
amended, waived, supplemented or otherwise modified except by a written
instrument executed and delivered by the party sought to be charged.
17. SUCCESSORS AND ASSIGNS. This Pledge Agreement shall be binding upon the
successors, assigns, heirs and representatives of the Pledgor and shall inure to
the benefit of the Secured Party and its successors and assigns.
18. NOTICES. Notices by one party to the other shall be in writing and may
be given by mail, by overnight mail sent by Federal Express or other nationally
recognized overnight courier, or delivery by hand, addressed to such party at
the address set forth in the first paragraph hereof and shall be deemed given
(a) in the case of mail, four (4) Business Days after being deposited in the
mail, first class postage pre-paid, (b) in the case of overnight mail, one (1)
Business Day after being sent by overnight mail, and (c) in the case of delivery
by hand, when delivered. Either party may change its address for delivery of
notices by written notice to the other in the manner set forth in this Section
18.
19. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO BORROWER. The Pledgor
hereby irrevocably authorizes and instructs each of TFCI and AVest to comply
with any instruction received by it from the Secured Party, on demand, in
writing that (a) states that an Event of Default has occurred and (b) is
otherwise in accordance with the terms of this Pledge Agreement, without any
other or further instructions from the Pledgor, and the Pledgor agrees that TFCI
and AVest shall be fully protected in so complying.
20. COSTS AND EXPENSES. The Pledgor hereby agrees to pay or reimburse the
Secured Party, on demand, for all costs and expenses (including without
limitation all reasonable attorneys' fees and disbursements and the reasonable
fees and disbursements of all other experts including without limitation all
accountants and appraisers) incurred by the Secured Party in connection with
administrating, preserving, defending, protecting, exercising or enforcing this
Pledge Agreement or any of its rights, remedies and powers hereunder, or
attempting to do any of the foregoing, including without limitation all costs
and expenses incurred in connection with the exercise of any right, remedy or
power with respect to the Collateral.
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21. INTEGRATION. This Pledge Agreement represents the agreement of the
Pledgor to the Secured Party with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Secured Party relative to the subject matter hereof not expressly set forth or
referred to herein or in the Guaranty.
22. GENDER. Whenever the context herein so requires, the neuter gender
includes the masculine or feminine, and the singular number includes the plural,
and vice-versa.
23. COUNTERPARTS. This Pledge Agreement may be executed in counterparts,
each of which shall be considered an original but all of which together shall be
deemed one instrument.
24. GOVERNING LAW; JURY TRIAL WAIVER. (a) THIS PLEDGE AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PLEDGOR UNDER THIS PLEDGE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CONNECTICUT WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS
THEREUNDER.
(b) THE PLEDGOR HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY AND
THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR OUT
OF, OR OTHERWISE RELATED TO OR CONNECTED WITH, THIS PLEDGE AGREEMENT.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Pledge
Agreement as of the day and year first above written.
WITNESS: ASTREX, INC.
/S/ EDWARD A. WEISS /S/ IRENE MARCIC
- ------------------------ -------------------------
Name: Edward A. Weiss Name: Irene Marcic
Title: Vice President
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ACKNOWLEDGMENT AND CONSENT
Each of TFCI and AVest as referred to in the foregoing Pledge Agreement
hereby acknowledges receipt of a copy thereof and agrees to be bound thereby, to
comply with the terms thereof insofar as such terms are in any way applicable to
each of them, and to not take any action inconsistent with such terms. TFCI and
AVest agree to notify the Secured Party promptly in writing of the occurrence of
any of the events described in Section 5(a) of the Pledge Agreement.
T.F. CUSHING, INC.
By: /S/ IRENE MARCIC
-------------------------
Name: Irene Marcic
Title: Vice President
AVEST, INC.
By: /S/ IRENE MARCIC
-------------------------
Name: Irene Marcic
Title: Vice President
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SCHEDULE I
To Pledge
AGREEMENT
---------
DESCRIPTION OF PLEDGED STOCK
================================================================================
GUARANTOR OWNED BY CLASS STOCK NO. OF
OF STOCK CERTIFICATE NO. SHARES
================================================================================
T.F. Cushing, Inc. Astrex, Inc. Common 8 99
================================================================================
AVest, Inc. Astrex, Inc. Common 1 11,725,907
================================================================================