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EXHIBIT 10.32
EXHIBIT C-4
FORM OF PLEDGE AGREEMENT
Pledge Agreement, dated as of December 15, 1997, made
by PALMER WEST COAST CORPORATION, a Delaware corporation (the "Pledgor"), in
favor of PNC BANK, NATIONAL ASSOCIATION, as agent (in such capacity, the
"Agent") for the banks and other financial institutions (the "Banks") parties to
the Credit Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, the West Coast Entertainment Corporation and
certain of its subsidiaries (collectively, the "Borrowers"), the Banks and the
Agent have entered into a Credit Agreement, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, pursuant to the provisions of the Credit
Agreement and upon the terms and subject to the conditions set forth therein,
the Banks have severally agreed to make certain loans to, and to issue or
participate in letters of credit for the account of, the Borrowers;
WHEREAS, the Pledgor is the legal and beneficial owner
of the shares of Pledged Stock (as hereinafter defined) of the entities listed
on Schedule I hereto (individually, an "Issuer," and collectively, the
"Issuers"); and
WHEREAS, it is a condition precedent to the obligation
of the Banks to make their respective loans to, and to issue or participate in
letters of credit for the account of, the Borrowers under the Credit Agreement
that the Pledgor shall have executed and delivered this Pledge Agreement to the
Agent for the ratable benefit of the Banks.
NOW, THEREFORE, in consideration of the premises and to
induce the Agent and the Banks to enter into the Credit Agreement and make their
respective loans to, and to issue or participate in letters of credit for the
account of, the Borrowers thereunder, the Pledgor hereby agrees with the Agent,
for the ratable benefit of the Banks, as follows:
1. Defined Terms. Unless otherwise defined herein,
terms which are defined in the Credit Agreement and used herein are so used as
so defined, and the following terms shall have the following meanings:
"Code" means the Uniform Commercial Code from time to
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time in effect in the Commonwealth of Pennsylvania.
"Collateral" means the Pledged Stock and all Proceeds.
"Obligations" shall mean the unpaid principal amount of,
and interest on (including, without limitation, interest accruing
after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to a
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Notes and all other
obligations and liabilities of the Borrowers to the Agent or any
Bank, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, the
Notes, the Letters of Credit, the Applications, this Pledge
Agreement, the other Loan Documents, any Interest Rate Hedge
Agreement with a Bank and any other document made, delivered or given
in connection therewith or herewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements
of counsel to the Agent or any Bank that are required to be paid by
the Borrowers pursuant to the terms of the Credit Agreement) or
otherwise.
"Pledge Agreement" means this Pledge Agreement, as amended,
supplemented or otherwise modified from time to time.
"Pledged Stock" means the shares of capital stock of the
Issuers listed on Schedule I hereto, together with all stock
certificates, options or rights of any nature whatsoever that may be
issued or granted by any Issuer to the Pledgor while this Pledge
Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined in
Section 9306(a) of the Code and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto.
2. Pledge; Grant of Security Interest. The Pledgor
hereby agrees on the date hereof to deliver to the Agent, for the ratable
benefit of the Banks and the Agent, the Pledged Stock and hereby grants to the
Agent, for the ratable benefit of the Banks and the Agent, a first priority
security interest in the Collateral, as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to
the Agent of each certificate representing one or more shares of
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Pledged Stock, the Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor with, if the Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Pledgor
represents and warrants that:
(a) the Pledgor is the owner of the issued and outstanding
shares of all capital stock of each Issuer and the shares of Pledged
Stock listed on Schedule I constitute all of such issued and
outstanding shares;
(b) all the shares of the Pledged Stock have been duly
and validly issued and are fully paid and nonassessable;
(c) the Pledgor is the record 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; and
(d) upon delivery to the Agent of the stock certificates
evidencing the Pledged Stock, the Lien granted pursuant to this
Pledge Agreement will constitute a valid, perfected first priority
Lien on the Collateral, enforceable as such against all creditors of
the Pledgor and any Persons purporting to purchase any Collateral
from the Pledgor.
5. Covenants. The Pledgor covenants and agrees with
the Agent and the Banks that from and after the date of this Pledge Agreement
until the Obligations are paid in full and the Commitments are terminated and no
Letter of Credit remains outstanding:
(a) If the Pledgor shall, as a result of its ownership of
the Pledged Stock, become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate
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 or
rights, whether in addition to, in substitution of, as a conversion
of, or in exchange for any shares of the Pledged Stock, or otherwise
in respect thereof, the Pledgor shall accept the same as the agent of
the Agent and the Banks, hold the same in trust for the Agent and the
Banks and deliver the same to the Agent in the exact form received,
duly indorsed by the Pledgor to the Agent, if required, together with
an undated stock power covering such certificate duly executed in
blank by the Pledgor and with, if the Agent so requests, signature
guaranteed, to be held by the Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the
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Pledged Stock upon the liquidation or dissolution of any Issuer shall
be paid over to the Agent 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
property shall be distributed upon or with respect to the Pledged
Stock pursuant to the recapitalization or reclassification of the
capital of such Issuer or pursuant to the reorganization thereof, the
property so distributed shall be delivered to the Agent to be held by
it 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 shall be received by the Pledgor, the Pledgor
shall, until such money or property is paid or delivered to the
Agent, hold such money or property in trust for the Banks, segregated
from other funds of the Pledgor, as additional collateral security
for the Obligations.
(b) Without the prior written consent of the Agent, the
Pledgor will not (i) vote to enable, or take any other action to
permit, any Issuer to 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 such Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, and (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. The Pledgor will
defend the right, title and interest of the Agent and the Banks 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 Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Agent
may reasonably request for the purposes of obtaining or preserving
the full benefits of this Pledge Agreement and of the rights 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 paper, such note,
instrument or chattel paper shall be immediately delivered to the
Agent, duly endorsed in a manner satisfactory to the Agent, to be
held as Collateral pursuant to this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Agent and
the Banks harmless from, any and all liabilities with
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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
this Pledge Agreement or the granting of security hereunder or the
exercising of any rights or remedies hereunder.
6. Cash Dividends; Voting Rights. Unless an Event of
Default shall have occurred and be continuing and the Agent shall have given
notice to the Company of the Agent's intent to exercise its rights pursuant to
paragraph 7 below, the Pledgor shall be permitted to receive all dividends
(other than dividends paid in additional capital stock of any Issuer) paid in
the normal course of business of each Issuer and consistent with past practice,
to the extent permitted in the Credit Agreement, in respect of the Pledged Stock
and to exercise all voting and corporate rights with respect to the Pledged
Stock, provided, however, that no vote shall be cast or corporate right
exercised or other action taken which, in the Agent's reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, the Notes or any of the
other Loan Documents.
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7. Rights of the Banks and the Agent.
(a) If an Event of Default shall occur and be
continuing and the Agent shall give notice of its intent to exercise its rights
hereunder to the Company, (i) the Agent shall have the right to receive any and
all cash dividends paid in respect of the Pledged Stock and make application
thereof to the Obligations in such order as the Agent may determine, and (ii)
all shares of the Pledged Stock shall be registered in the name of the Agent or
its nominee, and the Agent, or its nominee may thereafter exercise (A) all
voting, corporate and other rights pertaining to such shares of Pledged Stock at
any meeting of shareholders of any Issuer or otherwise and (B) any and all
rights of conversion, exchange, subscription and any other rights, privileges or
options pertaining to such shares of the Pledged Stock 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 upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by the Pledgor or the Agent of any
right, privilege or option pertaining to such shares of the Pledged Stock, and
in connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may determine), all
without liability except to account for property actually received by it and
except for its gross negligence or willful misconduct, but the Agent shall have
no duty to the Pledgor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Agent and the Banks
hereunder shall not be conditioned or contingent upon the pursuit by the Agent
or any Bank of any right or remedy against any other Person which may be or
become liable in respect of all or any part of the Obligations or against any
collateral security therefor, guarantee therefor or right of offset with respect
thereto. Neither the Agent nor any Bank shall be liable for any failure to
demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall the Agent be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
8. Remedies. If an Event of Default shall have
occurred and be continuing, the Agent, on behalf of the Banks, may exercise, in
addition to all other rights and remedies granted to it in this Pledge Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code. Without
limiting the generality of the foregoing, the
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Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below or otherwise specifically required hereunder) to or upon the Pledgor,
any Issuer or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign or give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(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 Agent or any Bank 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 Agent or any Bank 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 hereby waived or
released. The Agent shall 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 of any
of the Collateral or in any way relating to the Collateral or the rights of the
Agent and the Banks hereunder, including, without limitation, reasonable
attorneys' fees and disbursements of counsel to the Agent, to the payment in
whole or in part of the Obligations, in such order as the Agent may elect, and
only after such application and after the payment by the Agent of any other
amount required by any provision of law, including, without limitation, Section
9504(a)(3) of the Code, need the Agent 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 Agent or any Bank arising
out of the lawful exercise by them of any rights hereunder. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 Business Days
before such sale or other disposition. The Pledgor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral are
insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Agent or any Bank to collect such deficiency.
9. Registration Rights; Private Sales.
(a) The Pledgor recognizes that the Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state
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securities laws or otherwise, and may 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 Agent shall be
under no obligation to delay a sale of any of the Pledged Stock for the period
of time necessary to permit any Issuer to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
(b) The Pledgor further agrees to use its best
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this paragraph 9 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 paragraph 9 will cause irreparable injury to
the Agent and the Banks, that the Agent and the Banks have no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained in this paragraph 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.
10. Limitation on Duties Regarding Collateral. The
Agent's sole duty with respect to the custody, safekeeping and physical
preservation 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 Agent
deals with similar securities and property for its own account. Neither the
Agent, any Bank nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Pledgor or
otherwise.
11. Powers Coupled with an Interest. All
authorizations and agencies herein contained with respect to the Collateral are
irrevocable and powers coupled with an interest.
12. 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, and any
such prohibition or unenforceability in any jurisdiction shall not
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invalidate or render unenforceable such provisions in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used
in this Pledge Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in the
interpretation hereof.
14. No Waiver; Cumulative Remedies. Neither the Agent
nor any Bank shall by any act (except by a written instrument pursuant to
paragraph 15 hereof) be deemed to have waived any right or remedy hereunder or
to have acquiesced in any default of any obligation under any Loan Document or
in any breach of any of the terms and conditions hereof or thereof. No failure
to exercise, nor any delay in exercising, on the part of the Agent or any Bank
of any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Agent or any Bank of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns;
Governing Law. None of the terms or provisions of this Pledge Agreement may be
amended, supplemented or otherwise modified except by a written instrument
executed by the Pledgor and the Agent, provided that any provision of this
Pledge Agreement may be waived by the Agent in a letter or agreement executed by
the Agent or by telex or facsimile transmission from the Agent. This Pledge
Agreement shall be binding upon the successors and assigns of the Pledgor and
shall inure to the benefit of the Agent and the Banks and their respective
successors and assigns. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA.
16. Notices. All notices hereunder to the Agent, the
Pledgor or any Issuer to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given when delivered or sent in the manner and to the respective
addresses as provided in Subsection 9.2 of the Credit Agreement or in the case
of each Issuer at its address set forth on Schedule II hereto.
17. Irrevocable Authorization and Instruction to
Issuers. The Pledgor hereby authorizes and instructs each Issuer to comply with
any instruction received by it from the Agent in writing that (a) states that an
Event of Default has occurred and
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is continuing 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 each Issuer shall be fully protected in so complying.
18. Authority of Agent. The Pledgor acknowledges that
the rights and responsibilities of the Agent under this Pledge Agreement with
respect to any action taken by the Agent or the exercise or non-exercise by the
Agent of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Pledge Agreement shall,
as between the Agent and the Banks, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Agent and the Pledgor, the Agent shall be conclusively
presumed to be acting as agent for the Banks with full and valid authority so to
act or refrain from acting, and neither the Pledgor nor any Issuer shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
19. Submission to Jurisdiction; Waivers.
(a) The Pledgor hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Pledge
Agreement, or for recognition and enforcement of any
judgment in respect thereof to the non-exclusive general
jurisdiction of the courts of the Commonwealth of
Pennsylvania, the courts of the United States of America
for the Eastern District of Pennsylvania, and appellate
courts from any thereof;
(ii) consents that any such action or
proceeding may be brought in such courts, and waives any
objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any
such action or proceeding may be effected by mailing a
copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to
such Pledgor at its address set forth in the Credit
Agreement or at such other address of which the Agent
shall have been notified; and
(iv) agrees that nothing herein shall affect
the right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇
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in any other jurisdiction.
(B) THE PLEDGOR HEREBY UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
PARAGRAPH (A) ABOVE.
20. Counterparts. This Pledge Agreement may be
executed by one or more of the parties to this Pledge Agreement on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has caused this
Pledge Agreement to be duly executed and delivered as of the date first above
written.
ATTEST: PALMER WEST COAST CORPORATION
___________________________ By:___________________________
Name:______________________
Title:_____________________
[seal]
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ACKNOWLEDGMENT AND CONSENT
Each Issuer referred to in the foregoing Pledge
Agreement hereby acknowledges receipt of a copy thereof and agrees to be bound
thereby and comply with the terms thereof insofar as such terms are applicable
to it. Each Issuer agrees to notify the Agent promptly in writing of the
occurrence of any of the events described in paragraph 5(a) of the Pledge
Agreement. Each Issuer further agrees that the terms of paragraph 9(b) of the
Pledge Agreement shall apply to it, mutatis mutandis, with respect to all
actions that may be required of it under or pursuant to or arising out of
paragraph 9 of the Pledge Agreement.
▇▇▇▇▇▇ VIDEO CORPORATION
By:
Name:_______________________
Title: _____________________
▇▇▇▇▇▇ INVESTMENT CORPORATION
By:
Name:_______________________
Title: _____________________
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SCHEDULE I
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
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STOCK PERCENTAGE
CLASS OF CERTIFICATE NO. OF OF
ISSUER STOCK* NO. SHARES ISSUED SHARES
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* Common unless otherwise indicated.
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SCHEDULE II
TO PLEDGE AGREEMENT
ADDRESSES OF ISSUERS