<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 12)*
Electric Fuel Corporation
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(Name of Issuer)
Common Stock $0.01 Par Value
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(Title of Class of Securities)
284871-10-0
--------------
(CUSIP Number)
Steven M. Plon, Esquire, Buchanan Ingersoll Professional Corporation
Eleven Penn Center, 14th Floor, Philadelphia, PA 19103, (215) 665-3608
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 20, 2000
------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / / .
Check the following box if a fee is being paid with the statement / /. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the claim of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d1(a) for other parties to whom copies are to be
sent.
*The remainder of this coverage page shall be filed out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that action of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
<PAGE>
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CUSIP No. 284871-10-0
---------------------
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1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Leon S. Gross S.S. No. ###-##-####
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
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3. SEC USE ONLY
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4. SOURCE OF FUNDS* PF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF | 7. | SOLE VOTING POWER
SHARES | | 4,072,202
BENEFICIALLY | | [includes 125,000 warrants to purchase common stock]
OWNED BY |----------------------------------------------------------------
EACH | 8. | SHARED VOTING POWER
REPORTING | | 175,000
PERSON WITH |----------------------------------------------------------------
| 9. | SOLE DISPOSITIVE POWER
| | 2,897,660
|----------------------------------------------------------------
| 10. | SHARED DISPOSITIVE POWER
| | 1,349,542 [974,542 are held in a margin
| | accounts, 200,000 are pledged to Wilmington
| | Trust of Pennsylvania and 175,000 are held
| | jointly as a Co-Trustee of the Rose Gross
| | Charitable Foundation].
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,247,202 [includes 125,000 warrants to purchase common stock]
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.1% of the issued and outstanding stock (1)
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14. TYPE OF REPORTING PERSON*
IN
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(1) Based upon 20,144,066 shares of common stock outstanding as reported in
Electric Fuel Corporation's 10-Q for the quarter ended June 30, 2000 and
assuming exercise of warrants to purchase 125,000 Shares held by Mr. Gross.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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Page 3 of 14
AMENDMENT NO. 12 TO SCHEDULE 13D
This Amendment No. 12 is to the Schedule 13D originally dated February
23, 1996, as amended by the First Amendment to Schedule 13D dated April 30,
1996, the Second Amendment to Schedule 13D dated September 1, 1996, the Third
Amendment to Schedule 13D dated October 11, 1996, the Fourth Amendment to
Schedule 13D dated December 27, 1996, the Fifth Amendment to Schedule 13D dated
May 12, 1997, the Sixth Amendment to Schedule D dated December 3, 1997, the
Seventh Amendment to Schedule 13D dated September 28, 1998, the Eighth Amendment
to Schedule 13D dated October 14, 1999, the Ninth Amendment to Schedule 13D
dated October 28, 1999, the Tenth Amendment to Schedule 13D dated January 12,
2000 and the Eleventh Amendment to Schedule 13D dated June 26, 2000 (the
"Existing Schedule 13D"), and is being filed by the undersigned in accordance
with Rule 13d-2(a) of the general rules and regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and amends the Existing
Schedule 13D to the extent set forth below. Terms defined in the Existing
Schedule 13D are used herein as so defined.
Item 5. Interest in Securities of the Issuer.
The third paragraph of Items 5(a) and (b) of the Existing Schedule 13D is hereby
amended to read as follows:
Mr. Gross beneficially owns 4,247,202 Shares, or 21.1% of the Common
Stock (based upon 20,144,066 shares of common stock outstanding as reported in
Electric Fuel Corporation's 10-Q for the quarter ended June 30, 2000, and
assuming the exercise of warrants to purchase 125,000 Shares held by Mr. Gross).
Of the 4,247,202 Shares beneficially owned by him, Mr. Gross has the sole power
to vote 4,072,202 Shares, assuming the exercise of warrants to purchase 125,000
Shares. The remaining 175,000 Shares are held jointly by Mr. Gross and Lawrence
M. Miller in their capacities as Co-Trustees of the Rose Gross Charitable
Foundation (the "Foundation"), a charitable foundation founded by Mr. Gross by
Agreement of Trust dated May 28, 1997. Mr. Gross has sole power to dispose of
all Shares beneficially owned by him, except for (i) the 175,000 Shares owned by
the Foundation, (ii) 834,542 Shares which are held in a margin account with
Salomon Smith Barney, (iii) 70,000 Shares which are held in a margin account
with Donaldson, Lufkin & Jenrette, (iv) 70,000 Shares which are held in a margin
account with Merrill Lynch, and (v) 200,000 Shares which have been pledged to
Wilmington Trust of Pennsylvania. To the best of Mr. Gross' knowledge, except as
expressly set forth herein, no other person has the right to receive or the
power to direct the receipt of dividends from, or proceeds of the sale of, the
Shares held by him.
Item 6. Contracts, Arrangements, Understanding or Relationship with Respect to
Securities of the Issuer.
Item 6 of the Existing Schedule 13D is hereby amended by adding the following
paragraphs:
(b) In October, 2000, Mr. Gross obtained a line of credit from
Wilmington Trust of Pennsylvania. As partial collateral for the loan, Mr. Gross
pledged 200,000 Shares pursuant to a Commercial Pledge Agreement.
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Page 4 of 14
Since the filing of the Existing Schedule 13D, Mr. Gross has added to
and moved Shares among the margin accounts he has with the following Brokerage
Firms. As of October 20, 2000, Mr. Gross' Shares are pledged to the Brokerage
Firms as follows:
Brokerage Firm Number of Shares
-------------- ----------------
Donaldson, Lufkin & Jenrette 70,000
Merrill Lynch 70,000
Solomon Smith Barney 834,542
Mr. Gross repaid the Madison Bank loan and the Shares which had been
pledged to Madison Bank were returned to Mr. Gross.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Commercial Pledge Agreement with Wilmington Trust of Pennsylvania.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
October 30, 2000
------------------------
Date
/s/ Leon S. Gross
------------------------
Leon S. Gross
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Page 5 of 14
EXHIBIT 1
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COMMERCIAL PLEDGE AGREEMENT
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Lender: Wilmington Trust of Pennsylvania
Grantor: Leon S. Gross McAllister, Kevin
Park Plaza Condo, 14M, 3900 Ford Road 795 E. Lancaster Avenue
Philadelphia, PA 19131 Suite 6
Villanova, PA 19085
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</TABLE>
THIS COMMERCIAL PLEDGE AGREEMENT dated October 20, 2000, is made and executed
between Leon S. Gross ("Grantor") and Wilmington Trust of Pennsylvania
("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
Grantor's present and future rights, title and interest in and to, together with
any and all present and future additions thereto, substitutions therefore, and
replacements thereof, together with any and all present and future certificates
and/or instruments evidencing any, and further together with all income and
Proceeds as described herein:
Perfected security interest in a Wilmington Trust Brokerage account, account CMT
039314.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
Ownership. Grantor is the lawful owner of the Collateral free and clear
of all security interests, liens, encumbrances and claims of others
except as disclosed to and accepted by Lender in writing prior to
execution of this Agreement.
Right to Pledge. Grantor has the full right, power and authority to
enter into this Agreement and to pledge the Collateral.
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Page 6 of 14
Authority; Binding Effect. Grantor has the full right, power and
authority to enter into this Agreement and to grant a security interest
in the Collateral to Lender. This Agreement is binding upon Grantor as
well as Grantor's successors and assigns, and is legally enforceable in
accordance with its terms. The foregoing representations and
warranties, and all other representations and warranties contained in
this Agreement are and shall be continuing in nature and shall remain
in full force and effect until such time as this Agreement is
terminated or cancelled as provided herein.
No Further Assignment. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in
the Collateral except as provided in this Agreement.
No Defaults. There are no defaults existing under the Collateral, and
there are no offsets or counterclaims to the same. Grantor will
strictly and promptly perform each of the terms, conditions, covenants
and agreements, if any, contained in the Collateral which are to be
performed by Grantor.
No Violation. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a
party.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include
such things as hiring other people, such as attorneys, appraisers or
other experts. Lender may charge Grantor for any cost incurred in so
doing. When applicable law provides more than one method of perfection
of Lender's security interest, Lender may choose the method(s) to be
used. If the Collateral consists of stock, bonds or other investment
property for which no certificate has been issued, Grantor agrees, at
Lender's request, either to request issuance of an appropriate
certificates or to give instructions on Lender's forms to the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to
record on its books or records Lender's security interest in the
Collateral.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all income
and Proceeds and all it to the Collateral. Grantor agrees to deliver to
Lender Immediately upon receipt, in the exact form received and without
commingling with other property, all income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or
for Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash,
whether included in the Collateral or received as income and Proceeds
or through liquidation, sale, or retirement, of the Collateral, to the
satisfaction of the indebtedness or such portion thereof as Lender
shall choose, whether or not matured.
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Page 7 of 14
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or
other performance, (2) grant a renewal or change in terms or
conditions, or (3) compromise, compound or release any obligation, with
any one or more Obligors, endorsers, or Guarantors of the indebtedness
as Lender deems advisable, without obtaining the prior written consent
of Grantor, and no such act or failure to act shall affect Lender's
rights against Grantor or the Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security
for the indebtedness, whether the Collateral is located at one or more
offices or branches of Lender. This will be the case whether or not the
office or branch where Grantor obtained Grantor's loan knows about the
Collateral or relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the income directly from the Obligors. Grantor authorizes and
directs the Obligors, if Lender decides to collect the income, to pay
and deliver to Lender all income from the Collateral and to accept
Lender's receipt for the payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand,
collect, receive, receipt for, sue and recover all income and Proceeds
and other sums of money and other property which may now or hereafter
become due, owing or payable from the Obligors in accordance with the
terms of the Collateral; (b) to execute, sign and endorse any and all
instruments, receipts, checks, drafts and warrants issued in payment
for the Collateral; (c) to settle or compromise any and all claims
arising under the Collateral, and in the place and stead of Grantor,
execute and deliver Grantor's release and acquittance for Grantor; (d)
to file any claim or claims or to take any action or institute or take
part in any proceedings, either in Lender's own name or in the name of
Grantor, or otherwise, which in the discretion of Lender may seem to be
necessary or advisable; and (e) to execute in Grantor's name and to
deliver to the Obligors on Grantor's behalf, a the time and in the
manner specified by the Collateral, any necessary instruments or
documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting to Collateral. When applicable law provides more than one
method of perfection of Lender's security interest, Lender may choose
the method(s) to be used. Upon Lender's request, Grantor will sing and
deliver any writings necessary to perfect Lender's security interest.
Grantor hereby appoints Lender as Grantor's irrevocable
attorney-in-fact for the purpose of executing any documents necessary
to perfect or to continued the security interest granted in this
Agreement. This is a continuing Security Agreement and will continue in
effect even though all or any part of the indebtedness is paid in full
and even though for a period of time Grantor may not be indebted to
Lender.
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Page 8 of 14
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Collateral also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
n the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Except as provided above, Lender shall have no
liability for depreciation or deterioration of the Collateral.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Grantor fails to make any payment when due under the
indebtedness.
Other Defaults. Grantor fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or
in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other
agreement between Lender and Grantor.
Default in Favor of Third Parties. Should Grantor or any Grantor
default under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any
other creditor or person that may materially affect any of Grantor's
property or Grantors or any Grantor's ability to repay the indebtedness
or perform their respective obligations under this Agreement or any of
the Related Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this
Agreement, the Note, or the Related Documents is false or misleading in
any material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
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Page 9 of 14
Detective Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
Death or Insolvency. The death of Grantor, the insolvency of Grantor,
the appointment of a receiver for any part of Grantor's property, any
assignment for the benefit of creditors, any type of creditor workout,
or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the indebtedness.
This includes a garnishment of any of Grantor's accounts, including
deposit accounts, with Lender. However, this Event of Default shall not
apply if there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate
reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to guarantor, endorser, surety, or accommodation party of any
of the indebtedness or guarantor, endorser, surety, or accommodation
party dies or becomes incompetent.
Adverse Change. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment of performance of
the indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreements, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
Accelerate Indebtedness. Declare all indebtedness, including any
prepayment penalty which Grantor would be required to pay, immediately
due and payable, without notice of any kind to Grantor.
Collect the Collateral. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession
of the Collateral while suing on the indebtedness.
Sell the Collateral. Sell the Collateral, at Lender's discretion, as a
unit or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or
is of a type customarily sold on a recognized market, Lender shall give
or mail to Grantor, or any of them, notice at lest ten (10) days in
advance of the time and place of any public sale, or of the date after
which any private sale may be made. Grantor agrees that any requirement
of reasonable notice is satisfied if Lender mails notice by ordinary
mail addressed to Grantor, or any of item, at the last address Grantor
has given Lender in writing. If a public sale is held, there shall be
sufficient compliance with all requirements of notice to the public by
a single publication in any newspaper of general circulation in the
county where the Collateral is located, setting forth the time and
place of sale and a brief description of the property to be sold.
Lender may be a purchaser at any public sale.
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Page 10 of 14
Register Securities. Register any securities included in the Collateral
in Lender's name and exercise any rights normally incident to the
ownership of securities.
Sell Securities. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws.
If, because of restrictions under such laws, Lender is unable, or
believes Lender is unable, to sell the securities in an open market
transaction, Grantor agrees that Lender will have no obligation to
delay sale until the securities can be registered. Then Lender may make
a private sale to one or more persons or to a restricted group of
persons, even though such sale may result in a price that is less
favorable than might be obtained in an open market transaction. Such a
sale will be considered commercially reasonable. If any securities held
as Collateral are "restricted securities" as defined in the Rules of
the Securities and Exchange Commission (such as Regulation D or Rule
144) or the rules of state securities departments under state "Blue
Sky" laws, or if Grantor or any other owner of the Collateral is an
affiliate of the issuer of the securities, Grantor agrees that neither
Grantor, nor any member of Grantor's family, nor any other person
signing this Agreement will sell or dispose of any securities of such
issuer without obtaining Lender's prior written consent.
Foreclosure. Maintain a judicial suit for foreclosure and sale of the
Collateral.
Transfer Title. Effect transfer of title upon sale of all or part of
the Collateral. For this purpose, Grantor irrevocably appoints Lender
as Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one)
as shall be necessary or reasonable.
Other Rights and Remedies. Have and exercise any or all of Th Rights
and remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
Application of Proceeds. Apply any cash which is part of the
Collateral, or which is received from the collection or sale of the
Collateral, to reimbursement of any expenses, including any costs for
registration of securities, commissions incurred in connection with a
sale, attorneys' fees and court costs, whether or not there is a
lawsuit and including any fees on appeal, incurred by Lender in
connection with the collection and sale of such Collateral and to the
payment of the indebtedness of Grantor to Lender, with any excess funds
to be paid to Grantor as the interests of Grantor may appear. Grantor
agrees, to the extent permitted by law, to pay any deficiency after
application of the proceeds of the Collateral to the indebtedness.
Election of Remedies. Except as may be prohibited by applicable law,
all of Lender's rights and remedies, whether evidenced by this
Agreement, the Related Documents, or by any other writing, shall be
cumulative and may be exercised singularly or concurrently. Election by
Lender to pursue any remedy will not bar any other remedy, and an
election to make expenditures or to take action to perform an
obligation of Grantor under this Agreement, after Grantor's failure to
perform, shall not affect Lender's right to declare a default and
exercise its remedies.
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MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
Attorney's Fees: Expenses. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorney's fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce
this Agreement, and Grantor shall pay the costs and expenses f such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Grantor also shall pay
all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define
the provisions of this Agreement.
Governing Law. This Agreement will be governed by, construed and
enforced in accordance with federal law and the laws of the
Commonwealth of Pennsylvania. This Agreement has been accepted by
Lender in the Commonwealth of Pennsylvania. Choice of Venue. If there
is a lawsuit, Grantor agrees upon Lender's request to submit to the
jurisdiction of the courts of Philadelphia County Commonwealth of
Pennsylvania.
Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of Philadelphia
County, Commonwealth of Pennsylvania.
No Waiver by Lender. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of
Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
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Notices. Unless otherwise provided by applicable law, any notice
required to be given under this Agreement shall be given in writing,
and shall be effective when actually delivered, when actually received
by telefacsimile (unless otherwise required by law), when deposited
with a nationally recognized overnight courier, or, if mailed, when
deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near
the beginning of this Agreement. Any party may change its address for
notices under this Agreement by giving formal written notice to the
other parties, specifying that the purpose of the notice is to change
the party's address. For notice purposes, Grantor agrees to keep Lender
informed at all times of Grantor's current address. Unless otherwise
provided by applicable law, if there is more than one Grantor, any
notice given by Lender to any Grantor is deemed to be notice given to
all Grantors.
Severability. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that
it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegally, invalidity,
or unenforceability of any provision of this Agreement shall not affect
the legality, validity or enforceability of any other provision of this
Agreement.
Successor Interests. The terms of this Agreement shall be binding upon
Grantor, and upon Grantor's heirs, personal representatives,
successors, and assigns, and shall be enforceable by Lender and its
successors and assigns.
Time is of the Essence. Time is of the essence in the performance of
this Agreement.
Waive Jury. All parties to this Agreement hereby waive the right to any
jury trail in any action, proceeding, or counterclaim brought by any
party against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Agreement. The word "Agreement" means this Commercial Pledge Agreement,
as this Commercial Pledge Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Commercial Pledge Agreement form time to time.
Borrower. The word "Borrower" means Leon S. Gross, and all other
persons and entitles signing the Note in whatever capacity.
Collateral. The word "Collateral" means all of Grantor's right, title
and interest in and to all the Collateral as described in the
Collateral Description section of this Agreement.
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Default. The word "Default" means the Default set forth in this
Agreement in the section titled "Default".
Event of Default. The words "Event of Default" mean any of the Events
of default set forth in this Agreement in the Default section of this
Agreement.
Grantor. The word "Grantor" means Leon S. Gross.
Income and Proceeds. The words "Income and Proceeds" mean all present
and future income, proceeds, earnings, increases, and substitutions
from or for the Collateral of every kind and nature, including without
limitation all payments, interest, profits, distributions, benefits,
rights, options warrants, dividends, stock dividends, stock splits,
stock rights, regulatory dividends, subscriptions, monies, claims for
money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value
issued in substitution or exchange for shares included in the
Collateral, and all other property Grantor is entitled to receive on
account of such Collateral, including accounts, documents, instruments,
chattel paper, and general intangibles.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced
by the Note or elated Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Grantor is responsible under this Agreement or under any of the Related
Documents. The liens and security interests created pursuant to this
Agreement covering the indebtedness which may be created in the future
shall related back to the date of this Agreement.
Lender. The word "Lender" means Wilmington Trust of Pennsylvania, its
successors and assigns.
Note. The word "Note" means the Note executed by Grantor in the
principal amount of $XXX,XXX dated October 20, 2000, together with
all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
Obligor. The word "Obligor" means without limitation any and all
persons obligated to pay money or to perform some other act under the
Collateral.
Related Documents. The words "Related Documents" means all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the indebtedness.
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GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE
AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED OCTOBER 20, 2000.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
GRANTOR:
/s/ Leon S. Gross [Seal]
--------------------------------------------
Leon S. Gross, Individually
