EXHIBIT 10.6
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT IS BETWEEN:
(1) ▇▇▇▇▇ ELECTRONICS, INC., an Indiana corporation
having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ("Pledgor"); and
(2) FLEET NATIONAL BANK, a national banking
association organized under the laws of the United States having
an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Agent"), as Agent for itself and each of the other Lenders who
now are or hereafter become parties to the hereinafter defined
Loan Agreement.
WHEREAS:
(A) Pursuant to the terms of that certain Loan
Agreement dated as of the date hereof between PCD Inc., a
Massachusetts corporation (the "Principal Debtor"), Agent and the
Lenders (as the same may be amended from time to time, the "Loan
Agreement"), Agent and the Lenders have agreed to make loans to
Principal Debtor in an aggregate principal amount not to exceed
$90,000,000.00, as evidenced by that certain Term Note A, Term
Note B and Revolving Credit Note of Principal Debtor dated as of
the date hereof (the "Notes"); and
(B) Principal Debtor owns 100% of the issued and
outstanding capital stock of Pledgor; and
(C) Pledgor has, as of the date hereof, executed and
delivered to Agent that certain Unlimited Guaranty pursuant to
which Pledgor has guaranteed payment and performance of all of
the Obligations of Principal Debtor (as such term is defined in
the Loan Agreement) (the "Guaranty"); and
(D) Pledgor legally and beneficially owns, the shares
of issued and outstanding stock described on EXHIBIT A attached
hereto and incorporated herein as reference; and
(E) As a condition precedent to Agent and the Lenders
entering into the Loan Agreement and in order to secure the
payment and performance in full of all of the Obligations of
Principal Debtor to Agent and the Lenders, Pledgor agrees to
pledge to Agent, upon the terms contained in this Agreement: (1)
the Initial Pledged Shares (as hereinafter defined); and (2) all
(if any) shares of any class of the capital stock of the Pledged
Companies (as hereinafter defined) acquired by Pledgor at any
time after the date hereof.
NOW, THEREFORE, in consideration of these premises, the
promises, mutual covenants and agreements herein contained, the
parties hereto hereby agree as follows:
ARTICLE I
INTERPRETATION
Section 1.01. PROVISIONS PERTAINING TO DEFINITIONS. For
all purposes of this Agreement (except where such interpretations
would be inconsistent with the context or the subject matter):
(a) the terms specifically defined in SECTION 1.02 of
this Agreement shall have the meanings therein assigned to them;
(b) the expression "this Agreement" shall mean this
Stock Pledge Agreement, as originally executed, or, if varied or
supplemented from time to time, as so varied or supplemented; and
(c) capitalized terms used in this Agreement and
defined in the Loan Agreement and not otherwise defined herein
shall have the same meanings herein as in the Loan Agreement.
Section 1.02. TERMS DEFINED. Subject to the provisions of
Section 1.01 of this Agreement, the following terms shall have
the respective meanings set forth below:
(a) "Collateral" means, collectively, all of the
Pledged Shares, all of the Pledged Share Dividends, and all of
the other property, assets, accounts and moneys, and all of the
income, proceeds and products of any thereof, in, to, under or in
respect of which Agent or any of the nominees, agents or
representatives of Agent, by this Agreement or by any agreement
or agreements supplemental hereto, shall acquire any rights or
interests as security for the payment or performance of all or
any part of the Obligations.
(b) "Initial Pledged Shares" for (i) ▇▇▇▇▇
International, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (as hereinafter
defined) means, collectively, all of the issued and outstanding
shares of every class of the capital stock of ▇▇▇▇▇
International, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇, respectively, which
are beneficially owned by Pledgor on the date of this Agreement
as more particularly described on EXHIBIT A, and (ii) ▇▇▇▇▇ Japan
(as hereinafter defined) means, collectively, the LESSER of (1)
all of the issued and outstanding shares of every class of the
capital stock of ▇▇▇▇▇ Japan which are beneficially owned by
Pledgor on the date of this Agreement, and (2) 66% of all of the
issued and outstanding shares of every class of the capital stock
of ▇▇▇▇▇ Japan which are beneficially owned by Pledgor on the
date of this Agreement as more particularly described on EXHIBIT
A, the stock certificates for which shall be delivered by Pledgor
to Agent in pledge upon the terms contained in this Agreement.
(c) "Loan Documents" means the Financing Documents as
the term is defined in the Loan Agreement.
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(d) "Obligations" means (i) the due and punctual
payment in full of the principal, interest and other sums due and
to become due from Principal Debtor to Agent and/or the Lenders,
whether now existing or hereafter arising pursuant to the Loan
Agreement, the Notes and/or the other Financing Documents, as the
same may be amended from time to time; (ii) the due and punctual
payment in full at maturity of the principal, interest and any
other sums due and to become due from Principal Debtor to Agent
and/or the Lenders at any time and from time to time on account
of any and all obligations, indebtedness and liability of
Principal Debtor to Agent and/or the Lenders, whether now
existing or hereafter arising, whether direct, indirect, absolute
or contingent, whether otherwise guaranteed or secured and
whether on open account or evidenced by a note, draft, check,
loan agreement, letter of credit application, acceptance
agreement, or other instrument or documents; and (iii) the due
and punctual performance of and/or compliance with all of the
terms, conditions and covenants contained herein to be performed
or complied with by Pledgor and the accuracy of Pledgor's
representations and warranties contained herein and in the
Financing Documents.
(e) "Pledged Companies" means collectively ▇▇▇▇▇
International Corporation Inc., an Indiana corporation ("▇▇▇▇▇
International"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇"),
▇▇▇▇▇▇ Instrument Corp. ("▇▇▇▇▇▇") and ▇▇▇▇▇ Japan Kabushiki
Kaisha , a Japanese limited stock company ("▇▇▇▇▇ Japan").
(f) "Pledged Share Dividends" means, collectively, (i)
all dividends of every kind whatever which shall become and be
due and payable or distributable on or in respect of all or any
of the Pledged Shares, (ii) all payments of every kind whatever
which shall become and be due and payable or distributable on
account of the purchase, redemption, repurchase or other
retirement of all or any of the Pledged Shares, and (iii) all
other distributions of every kind whatsoever (including, without
limitation, all capital distributions) which shall become and be
due and payable or distributable on or in respect of all or any
of the Pledged Shares; and "Pledged Share Dividend" means any one
of the Pledged Share Dividends.
(g) "Pledged Shares" means, collectively, (i) all of
the Initial Pledged Shares, and (ii) all other shares of any
class of the capital stock of any of the Pledged Companies (A)
which shall be issued or distributed (by way of stock dividends
or otherwise) or sold by any of the Pledged Companies to Pledgor
at any time or times after the date of this Agreement, or (B)
which shall be purchased or otherwise acquired by or on behalf of
Pledgor from any of the Pledged Companies or from any other
person or persons at any time or times after the date of this
Agreement; and "Pledged Share" means any one of the Pledged
Shares.
ARTICLE II
PLEDGE AND ASSIGNMENT BY PLEDGOR
Section 2.01. PLEDGE AND ASSIGNMENT. In order to secure
the payment and performance in full of all of the Obligations
(whether existing on the date of this Agreement or arising at any
time or times thereafter), Pledgor, as beneficial owner, hereby
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pledges, hypothecates and assigns to Agent and hereby grants to
Agent, a continuing security interest in, the following: (a)
each of the Initial Pledged Shares and all of the stock
certificates representing the Initial Pledged Shares; (b) all of
the Pledged Shares which shall be issued or distributed or sold
to or purchased or otherwise acquired by Pledgor at any time or
times after the date of this Agreement and all of the stock
certificates representing such Pledged Shares; (c) all of the
Pledged Share Dividends; and (d) all of Pledgor's rights, title,
interests, claims and remedies and all other benefits whatever
now existing or hereafter arising in, to, under or in respect of
all of the Initial Pledged Shares, all of the other Pledged
Shares, all of the Pledged Share Dividends (subject to SECTION
2.04 of this Agreement) and all of the income and proceeds of any
thereof, PROVIDED, HOWEVER, that in no event will Pledgor be
required to pledge to Agent, pursuant to the terms hereof, more
than 66% of the issued and outstanding capital stock of ▇▇▇▇▇
Singapore and ▇▇▇▇▇ Japan, respectively.
TO HAVE AND TO HOLD all of the foregoing unto Agent,
absolutely and forever, SUBJECT, HOWEVER, to the terms and
conditions set forth in this Agreement.
Section 2.02. DELIVERY OF STOCK CERTIFICATES REPRESENTING
PLEDGED SHARES.
(a) All of the stock certificates representing the
Initial Pledged Shares have been delivered by Pledgor to Agent in
pledge on the date of this Agreement. Each of such stock
certificates names Pledgor as the owner of record of the Initial
Pledged Shares represented thereby. Each of the Initial Pledged
Shares has been duly transferred by Pledgor to Agent in pledge
pursuant to instruments of transfer which have been duly executed
in blank (with signatures guaranteed, if applicable) and
delivered to Agent by Pledgor.
(b) If (and on each occasion that) any additional
Pledged Shares shall, at any time after the date of this
Agreement, be issued or distributed or sold to or purchased or
otherwise acquired by Pledgor, Pledgor will within seven Business
Days of such issuance, distribution, sale, purchase or
acquisition (i) cause all of the stock certificates representing
such additional Pledged Shares to be delivered to Agent, and (ii)
execute in blank (with guarantee of signatures) and deliver to
Agent undated instruments of transfer, satisfactory to Agent in
form and substance, by which each of such additional Pledged
Shares shall be duly transferred by Pledgor to Agent in pledge.
Each of such stock certificates will name Pledgor as the owner of
record of the additional Pledged Shares represented thereby.
Section 2.03. VOTING POWER.
(a) Until the occurrence of an Event of Default,
Pledgor will be permitted to exercise all voting powers
pertaining to any Pledged Shares for any purpose not inconsistent
with the terms of this Agreement or any of the other Loan
Documents.
(b) Pledgor acknowledges and agrees with Agent that,
unless Agent otherwise consents, Pledgor shall have no rights
whatever to exercise any voting powers pertaining to any Pledged
Shares at any time after the occurrence and during the
continuance of an Event of Default.
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Section 2.04. CASH DIVIDENDS. Prior to the occurrence of
an Event of Default, Pledgor shall have no right to receive,
collect or recover any Pledged Share Dividends except as
permitted by the Loan Agreement. Following the occurrence or
during the continuance of an Event of Default, Pledgor
acknowledges and agrees that Pledgor shall have no right whatever
to receive, collect or recover any dividends of any kind at any
time.
ARTICLE III
REPRESENTATIONS
Pledgor hereby represents and warrants to Agent as follows:
Section 3.01. BENEFICIAL OWNERSHIP OF INITIAL PLEDGED
SHARES. Pledgor is the sole beneficial owner of each of the
Initial Pledged Shares. None of the Initial Pledged Shares is
subject to any Liens except that created by this Agreement. None
of the Initial Pledged Shares is subject to any shareholder
agreements, voting agreements, voting trusts, trust deeds,
irrevocable proxies or any other similar agreements or
instruments, except this Agreement.
Section 3.02. BINDING EFFECT OF AGREEMENT. This Agreement
has been duly executed and delivered to Agent by Pledgor and is
in full force and effect. All of the agreements and obligations
of Pledgor contained in this Agreement constitute legal, valid
and binding obligations of Pledgor enforceable against Pledgor in
accordance with their respective terms.
ARTICLE IV
COVENANTS
Section 4.01. DEFENSE OF AGENT'S TITLE AND RIGHTS. Pledgor
hereby covenants with Agent that Pledgor will defend Agent's
right, title and special property in and to all of the Initial
Pledged Shares and all of the other Pledged Shares. Pledgor will
not sell, assign or otherwise transfer or dispose of any of the
Pledged Shares, and it will not create, assume, incur or permit
to exist any Liens of any kind in respect of any of the Pledged
Shares; EXCLUDING, HOWEVER, any mortgages, liens, pledges,
charges, security interests and other encumbrances created on or
after the date of this Agreement by Pledgor and securing the
payment or performance of all or any part of the Obligations or
any indebtedness of Pledgor to Agent, whether existing on the
date of this Agreement or arising from time to time hereafter.
Section 4.02. LIMITATION ON VOTING POWERS. Pledgor hereby
covenants with Agent that Pledgor will not at any time or times
cast any vote in respect of any of the Pledged Shares or give any
consents, waivers or ratifications in respect of any of the
Pledged Shares which would violate or contravene, or which would
cause or otherwise authorize Pledgor to violate or contravene any
provision of this Agreement or any of the other Loan Documents.
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ARTICLE V
POWER OF ATTORNEY
Pledgor hereby absolutely and irrevocably constitutes and
appoints Agent Pledgor's true and lawful agent and attorney-in-
fact, with full power of substitution, in the name of Pledgor or
in the name of Agent or in the name of any of Agent's agents or
attorneys, following the occurrence and during the continuance of
any Default or Event of Default (a) to execute and do all such
assurances, acts and things which Pledgor ought to do under the
covenants and provisions contained in this Agreement; (b) to take
any and all such action as Agent or any of its agents or
attorneys may, in its or their sole and absolute discretion,
determine to be necessary or advisable for the purpose of
maintaining, preserving or protecting the security constituted by
this Agreement or any of the rights, remedies, powers or
privileges of Agent under this Agreement; and (c) generally, in
the name of Pledgor or in the name of Agent or in the name of any
of Agent' agents or attorneys, to exercise all or any of the
powers, authorities and discretions conferred on or reserved to
Agent by or pursuant to this Agreement, and (without prejudice to
the generality of any of the foregoing) to seal and deliver or
otherwise perfect any deed, assurance, agreement, instrument or
act which Agent or any of Agent's agents or attorneys may deem
proper in or for the purpose of exercising any of such powers,
authorities or discretions. Pledgor hereby ratifies and
confirms, and hereby agrees to ratify and confirm, whatever Agent
or any of Agent's agents or attorneys shall do or purport to do
in the exercise of the power of attorney granted to Agent
pursuant to this Article V, which power of attorney, being given
for security, is irrevocable.
ARTICLE VI
TERMS OF THE SECURITY HELD AND RELEASE OF SECURITY
Section 6.01. CONTINUING SECURITY. The security created by
this Agreement shall be held by Agent, as a continuing security
for the payment and performance of all of the Obligations
(whether existing on the date of this Agreement or arising from
time to time thereafter). This Agreement, all of the rights,
remedies, powers and privileges of Agent hereunder and the
security created hereby shall be in addition to, and shall not in
any way be prejudiced or affected by, any other collateral or any
other security now or at any time or times hereafter held by
Agent for all or any part of the Obligations. Each and every
right, remedy, power and privilege conferred on or reserved to
Agent hereunder shall be cumulative and in addition to, and not
in limitation of, each and every other right, remedy, power or
privilege conferred on or reserved to Agent under this Agreement
or under the Loan Documents. All of the rights, remedies, powers
and privileges vested in Agent hereunder may be exercised at such
time or times and in such order and manner as Agent may, in its
sole and absolute discretion, deem expedient.
Section 6.02. WAIVERS OF NOTICE; ASSENT. The agreements
and obligations of Pledgor to Agent hereunder and the security
constituted hereby shall not be, to any extent or in any way or
manner whatsoever, satisfied, discharged, impaired, diminished,
released or otherwise affected by any of the following, whether
or not Pledgor shall have had any notice or knowledge of any
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thereof: (a) the absorption, consolidation, merger or
amalgamation of, or the effectuation of any other change
whatsoever in the name, membership, constitution or place of
formation of, Pledgor or any of their subsidiaries or Agent; (b)
any increase or reduction in the amount of the Notes, the
termination of the Notes, or the making of the Loans by Agent or
any of the Lenders; (c) any extension or postponement of the time
for the payment or performance of all or any part of the
Obligations, the acceptance of any partial payment on all or any
part of the Obligations, any and all other indulgences whatsoever
by Agent or any of the Lenders in respect of all or any part of
the Obligations, the taking, addition, substitution or release,
in whole or in part, of any security for all or any part of the
Obligations, or the addition, substitution or release, in whole
or in part, of any person or persons primarily or secondarily
liable in respect of all or any part of the Obligations; (d) any
action or delay in acting or failure to act on the part of Agent
or any of the Lenders under this Agreement, the Loan Documents,
or in respect of all or any part of the Obligations, or in
respect of all or any collateral other than the Collateral; or
(e) any modification or amendment of, or any supplement or
addition to, any of the Loan Documents. Pledgor hereby
absolutely and irrevocably assents to and waives notice of any
and all events, conditions, matters and things hereinbefore
specified in clauses (a) to (e), inclusive, of the foregoing
sentence of this SECTION 6.02.
Section 6.03. NO IMPLIED WAIVERS. No course of dealing
between Pledgor and Agent and/or any of the Lenders, and no delay
on the part of Agent in exercising any right, remedy, power or
privilege hereunder or provided by statute or by law or in equity
or otherwise, shall impair, prejudice or constitute a waiver of
any such right, remedy, power or privilege or be construed as a
waiver of any default or as an acquiescence therein; and any
single or partial exercise of any such right, remedy, power or
privilege shall not preclude any other or further exercise
thereof or the exercise of any other rights, remedies, powers or
privileges.
ARTICLE VII
ENFORCEMENT OF THE SECURITY
Section 7.01. CONDITIONS OF ENFORCEABILITY OF THE SECURITY.
If any Default or Event of Default shall at any time occur, the
security constituted by this Agreement shall become immediately
enforceable by Agent, without any presentment, demand, protest or
other notice of any kind, all of which are hereby expressly and
irrevocably waived by Pledgor.
Section 7.02. EVIDENCE OF OBLIGATIONS. In any legal
proceedings against Pledgor for enforcing any agreements or
obligations of Pledgor under this Agreement, a certificate of
Agent as to the aggregate amount of all of the Obligations shall
be PRIMA FACIE evidence thereof.
Section 7.03. MANNER OF ENFORCEMENT OF SECURITY. Agent
shall have, in any jurisdiction where enforcement is sought, all
of the rights, remedies, powers and privileges conferred on
Agent, as secured party, under the Uniform Commercial Code of The
Commonwealth of Massachusetts, and, without limiting the
generality of the foregoing, Agent shall have the full right and
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power in respect of the Collateral or any part thereof in Agent's
sole and complete discretion to do all and any of the following
things:
(a) to take possession of the Collateral or any part
thereof, wherever the same may be, without legal process and
without compliance with any other condition precedent imposed by
statute, rule of law or otherwise (all of which Pledgor hereby
expressly and irrevocably waives), and to call in, collect,
convert into money or otherwise deal with the Collateral or any
part thereof with full power to sell (including the power to
postpone such sale) the Collateral or any part thereof, either
together or in lots, and either by public auction or private
contract, and either for a lump sum or for a sum payable by
installments or for a sum on account and a mortgage or charge or
pledge for the balance, and with full power upon every sale to
make any special or other stipulation as to title or evidence
thereof or otherwise which Agent shall deem proper, and with full
power to buy in or rescind or vary any contract for sale of the
Collateral or any part thereof and to resell the same without
being responsible for any loss which may be occasioned thereby,
and with full power to compromise and effect compositions, and,
for the purposes aforesaid or any of them, to execute and do all
such assurances and things as Agent may deem appropriate;
(b) to settle, adjust, compromise and arrange all
accounts, reckonings, controversies, questions, claims and
demands whatsoever in relation to all or any part of the
Collateral;
(c) to cause all or any of the Pledged Shares and all
or any other Collateral to be sold, assigned or transferred to
Agent or to any other person or persons and to be recorded or
registered in the name of Agent or any other person or persons
and to exercise or permit the exercise of any powers or rights
incident to all or any part of the Collateral in such manner as
Agent shall deem appropriate, and, in respect of all or any of
the Pledged Shares, to exercise or permit the exercise of all
rights and powers conferred by statute or otherwise upon a
registered holder or owner of record thereof, including, without
limitation, the calling or causing to be called of meetings, and
proposing or causing to be proposed of resolutions (whether
ordinary or special resolutions), including resolutions for
winding up and voting at meetings;
(d) to execute and do all such contracts, agreements,
deeds, documents and things, and to bring, defend and abandon all
such actions, suits and proceedings in relation to all or any
part of the Collateral as Agent shall deem expedient;
(e) to appoint managers, agents, officers and servants
for any of the purposes mentioned in the foregoing provisions of
this SECTION 7.03 for such periods as Agent shall deem
appropriate and to dismiss the same; and
(f) generally, to do all such other acts and things as
may be considered incidental or conducive to any of the matters
or powers mentioned in the foregoing provisions of this SECTION
7.03 and which Agent may or can do lawfully and to use the name
of Pledgor for the purposes aforesaid and in any proceedings
arising therefrom.
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Section 7.04. COOPERATION OF PLEDGOR. Pledgor recognizes
that the Pledged Shares are not readily marketable and may not be
marketable at all if any default in the payment or performance of
any of the Obligations shall occur and be continuing. In order,
therefore, to enable Agent to use such means as Agent may
determine necessary or advisable to realize upon the Collateral
from time to time, and in order to induce Agent and the Lenders
to make the Loans to Principal Debtor in reliance upon the
Collateral, Pledgor hereby absolutely and irrevocably consents
that Agent may use whatever means Agent may reasonably consider
necessary or advisable to sell any or all of the Collateral at
any time or times after the security constituted by this
Agreement shall have become enforceable, including, without
limitation, the giving of options to purchase any or all of the
Collateral and the giving of credit to any purchaser of the
Collateral. Because there is no established market for the
Collateral and because it may be unlikely that any person will
become or be interested in purchasing the Collateral as a result
of the giving of any notice of public sale, Pledgor agrees that
any sale of the Collateral may be private and without competitive
bidding.
Section 7.05. NOTICE OF SALE. Agent will give Pledgor at
least five (5) days' prior written notice of the time and place
of any public or private sale of all or any part of the
Collateral or of the time after which any private sale or any
other intended disposition of all or any part of the Collateral
is to be made. Pledgor hereby absolutely and irrevocably agrees
with Agent that any notice of any public or private sale or other
disposition given by Agent to Pledgor in accordance with the
preceding sentence of this SECTION 7.05 shall be, and shall for
all purposes be deemed to be, reasonable notice.
Section 7.06. PROTECTION OF PERSONS DEALING WITH AGENT. No
purchaser, mortgagor, mortgagee, Agent, Lender, debtor or other
person dealing with Agent or with any attorney or agent of Agent
shall be concerned to enquire (a) whether the security
constituted by this Agreement has become enforceable, (b) whether
any power exercised or purported to be exercised hereunder has
become exercisable, (c) whether any moneys remain due upon the
security of this Agreement, (d) as to the propriety, regularity
or purpose of the exercise of any power hereunder, or (e) as to
the application of any moneys paid to Agent or to any such
attorney or agent.
Section 7.07. PROTECTION OF SECURITY. In addition to the
rights and powers hereinabove given, Agent may, whether or not
any Default or Event of Default shall have occurred and whether
or not the security constituted by this Agreement shall have
become enforceable, enter into possession of and hold any part of
the Collateral which may at any time appear to Agent in danger of
being taken under any process of law by any creditor of Pledgor
or to be in jeopardy or otherwise endangered.
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ARTICLE VIII
APPLICATION OF MONEYS IN COLLATERAL
All moneys realized by Agent after the security constituted
by this Agreement shall have become enforceable as well as all
moneys then held or at any time or times thereafter received by
Agent as realizations of all or any part of the Collateral shall
be held by Agent to apply the same as follows;
FIRST: in or towards the payment and discharge of all (if
any) debts, damages and liabilities, the payment of which shall
be secured by any Liens having priority over the rights of Agent
in and to such moneys;
SECOND: in or towards the payment of, or (as the case may
be) the reimbursement of Agent for or in respect of, all costs,
expenses, disbursements and losses which shall have been incurred
or sustained by Agent in or about or incidental to the collection
of such moneys by Agent or the exercise, protection or
enforcement by Agent of all or any of the rights, remedies,
powers and privileges of Agent under this Agreement or in respect
of the Collateral and in or towards the provision of adequate
indemnity to Agent against all taxes or liens which by law shall
have, or may have, priority over the rights of Agent in and to
such moneys;
THIRD: in or towards the payment of all of the Obligations
in accordance with the Loan Documents and this Agreement; and
FOURTH; to the payment of the surplus (if any) to Pledgor
or to such other person or persons as shall be entitled to
receive such surplus.
ARTICLE IX
PROVISIONS OF GENERAL APPLICATION
Section 9.01. NOTICES. All notices, requests, demands and
other communications provided for hereunder shall be in writing
and mailed or telefaxed or delivered to the applicable party in
the manner set forth in SECTION 9.6 of the Loan Agreement.
Section 9.02. INDEMNIFICATION. Without prejudice to any of
the other provisions of this Agreement, Pledgor will pay to
Agent, on demand by Agent at any time and as often as the
occasion therefor may require, any and all reasonable costs,
charges, expenses and other sums expended, paid or debited in
account by Agent and/or the Lenders, whether by itself or through
any attorney, substitute or agent, for any of the purposes
referred to in this Agreement or otherwise howsoever in relation
to the security over the Collateral or any part thereof created
by this Agreement, including (without prejudice to the generality
of the foregoing) the reasonable remuneration of any such
attorney, substitute or agent and of any other servants or agents
employed by Agent for any such purposes and any and all other
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reasonable costs, charges and expenses (whether in respect of
litigation or not) incurred in the maintenance, preservation,
protection, realization or enforcement of, or the collection and
recovery of any moneys from time to time arising under, such
security (or any security collateral or supplemental thereto), or
in realizing or exercising any other power, authority or
discretion in relation to the Collateral or any part thereof, or
otherwise incurred under any provision of this Agreement, to the
intent that Agent and/or the Lenders shall be afforded a full and
unlimited indemnity in respect thereof, and, until so repaid,
such costs, charges expenses and other sums shall be charged on
the Collateral (but without prejudice to any other remedy, lien
or security available to Agent and/or the Lenders).
Section 9.03. FURTHER ASSURANCES. Pledgor hereby further
agrees with Agent to execute, acknowledge and deliver any and all
such further assurances and other deeds, agreements or
instruments, and to take or cause to be taken all such other
action, as shall be reasonably requested by Agent from time to
time in order to give full effect to this Agreement and to
maintain, preserve, safeguard and continue at all times all or
any of the rights, remedies, powers and privileges of Agent under
this Agreement, all without any cost or expense to Agent.
Section 9.04. BINDING EFFECT. This Agreement shall be
binding upon Pledgor and its successors and assigns and shall
inure to the benefit of Agent and its successors in title and
assigns.
Section 9.05. SEVERABILITY. In the event that any one or
more of the provisions contained in this Agreement shall be
invalid, illegal or unenforceable in any respect under any law
applicable thereto, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be
affected or impaired thereby, and Pledgor hereby agrees with
Agent to execute any new agreement, deed or other instrument
which is necessary to remedy such invalidity, illegality or
unenforceability or to preserve the security constituted by the
Collateral.
Section 9.06. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS.
(a) Except to the extent prohibited by applicable law,
Pledgor irrevocably:
(i) agrees that any suit, action, or other legal
proceeding arising out of this Stock Pledge Agreement may
be brought in the courts of record of The Commonwealth of
Massachusetts or any other state(s) in which any of the
Collateral is located or in the courts of the United States
located in The Commonwealth of Massachusetts or any other
state(s) in which any of the Collateral is located;
(ii) consents to the jurisdiction of each such court
in any such suit, action or proceeding; and
(iii) waives any objection which it may have to the
laying of venue of such suit, action or proceeding in any
of such courts.
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For such time as any of the Obligations of Pledgor to Agent
shall be unpaid in whole or in part and or the Commitment in
effect, Pledgor irrevocably designates the registered agent or
agent for service of process of the Pledgor as reflected on the
records of the Secretary of State of the State of Indiana as its
registered agent, and, in the absence thereof, the Secretary of
State of the State of the State of Indiana, as its agent to
accept and acknowledge on its behalf service of any and all
process in any such suit, action or proceeding brought in any
such court and agrees and consents that any such service of
process upon such agent and written notice of such service to
Pledgor by registered or certified mail shall be taken and held
to be valid personal service upon Pledgor regardless of where
Pledgor shall then be doing business and that any such service
of process shall be of the same force and validity as if service
were made upon it according to the laws governing the validity
and requirements of such service in each such state and waives
any claim of lack of personal service or other error by reason
of any such service. Any notice, process, pleadings or other
papers served upon the aforesaid designated agent shall, within
three (3) Business Days after such service, be sent by the
method provided for in SECTION 9.6 of the Loan Agreement to
Pledgor at its address set forth in the Loan Agreement. EACH OF
THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN
THE EVENT OF ANY DISPUTE BETWEEN PLEDGOR AND AGENT WITH RESPECT
TO THE FINANCING DOCUMENTS AND/OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY.
Section 9.07. SPECIFIC PERFORMANCE, ETC. The rights
granted to Agent under this Agreement are of a special, unique,
unusual and extraordinary character. The loss of any of such
rights cannot reasonably or adequately be compensated by way of
damages in any action at law, and any material breach by Pledgor
of any of Pledgor's covenants, agreements or obligations under
this Agreement will cause Agent irreparable injury and damage.
In the event of any such breach, Agent shall be entitled, as a
matter of right, to injunctive relief or other equitable relief
in any court of competent jurisdiction to prevent the violation
or contravention of any of the provisions of this Agreement or to
compel compliance with the terms of this Agreement by the
Pledgor. Agent is absolutely and irrevocably authorized and
empowered by Pledgor to demand specific performance of each of
the covenants and agreements of Pledgor in this Agreement.
Pledgor hereby irrevocably waives any defense based on the
adequacy of any remedy at law which might otherwise be asserted
by Pledgor as a bar to the remedy of specific performance in any
action brought by Agent against Pledgor to enforce any of the
covenants or agreements of Pledgor in this Agreement.
Section 9.08. GOVERNING LAW. This Agreement is intended to
take effect as a sealed instrument. This Agreement will be
governed by the laws of The Commonwealth of Massachusetts without
reference to its conflicts of laws rules.
Section 9.09. TITLES. The title of this Agreement and the
titles of sections and subsections, and of exhibits, are for
convenience of reference only and will not be considered in the
construction or interpretation hereof.
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Section 9.10. COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which will be deemed to be
an original but all of which together will constitute one and the
same instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, this STOCK PLEDGE AGREEMENT has been
duly executed by or on behalf of each of the parties hereto as of
December 26, 1997.
▇▇▇▇▇ ELECTRONICS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Treasurer
FLEET NATIONAL BANK, as Agent
for itself and the other
Lenders
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
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EXHIBIT A
Stock Ownership
NUMBER OF SHARES
NAME OF COMPANY DESCRIPTION OF STOCK OWNED BY PLEDGOR
▇▇▇▇▇ International Common 8,000
Corporation Inc.
▇▇▇▇▇ Japan Kabushiki Kaisha 5,100
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Common 406
▇▇▇▇▇▇ Instrument Corp. Common 59
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