Exhibit 10.35
SUBSIDIARY PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT (as amended, supplemented, restated or otherwise
modified from time to time, this "Pledge Agreement"), dated as of November 21,
2000, made by ATLANTIC GUEST, INC., a Delaware corporation, KCLLC HOLDINGS,
INC., a Delaware corporation, and ACME ELECTRIC CORPORATION, a New York
Corporation (each, a "Pledgor", and collectively, the "Pledgors"), in favor of
FIRST UNION NATIONAL BANK, as agent (together with any successor(s) thereto in
such capacity, the "Administrative Agent") for each of the Lender Parties (such
capitalized terms and all other capitalized terms not otherwise defined herein
shall have the meanings provided for in Article I).
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit and Guaranty Agreement, dated as of
September 29, 2000 (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Credit Agreement"), among Key Components, LLC
(the "Borrower"), certain of its Subsidiaries and its equity holders, as
Guarantors, the various financial institutions and other Persons as are or may
become parties thereto, as lenders (the "Lenders"), the Administrative Agent,
Societe Generale, as Syndication Agent for the Lenders, and First Union
Securities, Inc. and ▇▇ ▇▇▇▇▇ Securities Corporation, as Co-Arrangers, the
Lenders have extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making of the initial Credit
Extension under the Credit Agreement and to the execution and delivery of any
Rate Protection Agreement, each Pledgor is required to execute and deliver this
Pledge Agreement;
WHEREAS, each Pledgor is a Subsidiary of the Borrower;
WHEREAS, each Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of each Pledgor to execute this
Pledge Agreement inasmuch as each Pledgor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders pursuant to the Credit Agreement and pursuant to Rate
Protection Agreements;
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make Credit
Extensions (including the initial Credit Extension) to the Borrower pursuant to
the Credit Agreement, and to enter into Rate Protection Agreements with the
Borrower, each Pledgor agrees with the Administrative Agent, for the benefit of
each Lender Party, as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Control Agreement" means an agreement in form and substance
satisfactory to the Administrative Agent which provides for the Administrative
Agent to have "control" (as defined in Section 8-106 of the UCC, as such term
relates to Investment property (other than certificated securities or
commodities contracts), or as used in Section 9-115(e) of the UCC, as such term
relates to commodity contracts).
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers and
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Interests or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Interests or other Pledged Property made in the ordinary course of
business or otherwise permitted under the Credit Agreement.
"Investment property" is defined in Section 9-115 of the UCC.
"Lender" and "Lenders" are defined in the first recital.
"Lender Party" means, as the context may require, any Lender and/or the
Administrative Agent and/or each party to a Rate Protection Agreement (other
than the Borrower) and each of their respective successors and permitted
transferees and assigns.
"Pledge Agreement" is defined in the preamble.
"Pledged Interest Issuers" means each Person identified in Attachment 1
hereto as the issuer of the Pledged Interests identified opposite the name of
such Person and each Person whose ownership, equity or other similar interests,
including shares of capital stock, limited liability company interests and
general and limited partnership interests, are required to be pledged hereunder
and under the Credit Agreement from time to time.
"Pledged Interests" means all ownership, equity or other similar
interests, including shares of capital stock, limited liability company
interests and general and limited partnership interests, of any Pledged Interest
Issuer which are required to be delivered by any Pledgor to the Administrative
Agent as Pledged Property hereunder.
"Pledged Property" means all Pledged Interests, all intercompany notes
in which any of the Pledgors has an interest (including the right to receive
payment of principal and accrued interest on such notes and all other rights of
a payee under such notes), and all other instruments and securities, in each
case which are now being delivered or required to be delivered by any Pledgor to
the Administrative Agent or may from time to time hereafter be delivered or be
required to be delivered by any Pledgor to the Administrative Agent for the
purpose of pledge under this Pledge Agreement or any other Loan Document, and
all proceeds of any of the foregoing.
"Pledgor" and "Pledgors" are defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Stock Collateral" is defined in clause (a) of Section 2.1.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
SECTION I.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION I.3. UCC Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the UCC are
used in this Pledge Agreement, including its preamble and recitals, with such
meanings.
ARTICLE II
PLEDGE
SECTION II.1. Grant of Security Interest. Each Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to the
Administrative Agent, for its benefit and the ratable benefit of each of the
Lender Parties, and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of the Lender Parties, a continuing security interest
in, all of such Pledgor's right, title and interest in, to and under the
following property, whether now or hereafter existing or acquired by such
Pledgor (the "Collateral"):
(a) all Investment property in which such Pledgor has an
interest, including all Pledged Interests of each Pledged Interest
Issuer identified in Attachment 1 hereto, issued from time to time (the
"Stock Collateral");
(b) all other Pledged Property, whether now or hereafter
delivered to the Administrative Agent in connection with this
Agreement;
(c) all right, title and interest of such Pledgor, whether now
existing or hereafter arising or acquired, in, to and under any
partnership, joint venture, limited liability company operating and/or
similar agreement which governs the rights and obligations of the
holders of ownership, equity or similar interests in a Pledged Interest
Issuer;
(d) all Dividends, Distributions, interest, and other payments
and rights with respect to any Pledged Property; and
(e) all proceeds of and from any of the foregoing.
SECTION II.2. Security for Obligations. This Pledge Agreement secures
the payment in full of all amounts payable by the Borrower, each Pledgor and
each other Obligor under or in connection with the Credit Agreement, the Notes,
each Rate Protection Agreement and each other Loan Document (including this
Pledge Agreement), whether for principal, interest (including interest accruing
during, or which would have accrued but for, the pendency of any bankruptcy or
similar proceeding), costs, fees, expenses, indemnities or otherwise and whether
now or hereafter existing (all of such obligations being the "Secured
Obligations").
SECTION II.3. Delivery and Transfer of Pledged Property. All
certificates or instruments representing or evidencing any Collateral, including
all Pledged Interests, shall be delivered to and held by or on behalf of the
Administrative Agent pursuant hereto, shall be in suitable form for delivery,
and shall be accompanied by all necessary undated instruments of transfer or
assignment, duly executed in blank or, if any securities pledged pursuant to
this Agreement are uncertificated securities, confirmation and evidence
satisfactory to the Administrative Agent that the security interests in such
uncertificated securities have been transferred to and perfected by the
Administrative Agent for the benefit of the Lenders in accordance with the UCC.
SECTION II.4. Dividends on Pledged Interests. In the event that any
Dividend is to be paid to any Pledgor on any Pledged Interests, such Dividend
may be paid directly to such Pledgor. If any Default of the nature set forth in
Section 8.1.9 of the Credit Agreement or Event of Default has occurred and is
continuing, then any such Dividend shall be paid directly to the Administrative
Agent other than as permitted by clause (a)(i)(A) of Section 7.2.6 of the Credit
Agreement.
SECTION II.5. Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full in
cash of all Secured Obligations and the expiration or termination of
all Commitments,
(b) be binding upon each Pledgor and its successors,
transferees and assigns, provided that none of the Pledgors shall
assign any of its rights or obligations under this Agreement without
the consent of all the Lenders, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent and each other Lender Party.
Without limiting the foregoing clause (c), any Lender may, to the extent
permitted under the Credit Agreement, assign or otherwise transfer (in whole or
in part) any Note or Credit Extension held by it, to any other Person or entity,
and such other Person or entity shall thereupon become vested with all the
rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Pledge Agreement) or otherwise, subject, however, to
any contrary provisions in such assignment or transfer, and to the provisions of
Section 11.11 and Article X of the Credit Agreement. Upon the payment in full in
cash of all Secured Obligations and the expiration or termination of all
Commitments, the security interest granted herein shall terminate and all rights
to the Collateral shall revert to the Pledgors. Upon any such termination or
release, the Administrative Agent will, at the Pledgors' joint and several
expense, deliver to such Pledgor, without any representations, warranties or
recourse of any kind whatsoever, (i) in the case of such termination, all
certificates and instruments representing or evidencing all Pledged Interests,
together with all other Collateral held by the Administrative Agent hereunder,
and (ii) in the case of any such release, all Collateral held by the
Administrative Agent for which the security interest granted hereunder is so
released, and in each case, execute and deliver to such Pledgor such documents
as such Pledgor shall reasonably request to evidence such termination or
release.
SECTION II.6. Security Interest Absolute. All rights of the
Administrative Agent and the security interests granted to the Administrative
Agent hereunder, and all obligations of each Pledgor hereunder, shall, to the
fullest extent permitted by applicable law, be absolute and unconditional,
irrespective of
(a) any lack of validity or enforceability of the Credit
Agreement, any Note, any Rate Protection Agreement or any other Loan
Document,
(b) the failure of any Lender Party or any holder of any Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any Pledgor or any other
Obligor or any other Person under the provisions of the Credit
Agreement, any Note, any Rate Protection Agreement, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Secured
Obligation of the Borrower, any Pledgor or any other Obligor,
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any
other extension, compromise or renewal of any Obligation of the
Borrower, any Pledgor or any other Obligor,
(d) any reduction, limitation, impairment or termination of
any Secured Obligation of the Borrower, any Pledgor or any other
Obligor for any reason (other than the repayment in full of all Secured
Obligations), including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and the Pledgor
hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Secured Obligation of the Borrower, any Pledgor or any other Obligor or
otherwise,
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note, any Rate Protection Agreement or any
other Loan Document,
(f) any addition, exchange, release, surrender or
non-perfection of any collateral (including the Collateral), or any
amendment to or waiver or release of or addition to or consent to
departure from any guaranty, for any of the Secured Obligations, or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any Pledgor, any other Obligor, any surety or any guarantor.
SECTION II.7. Postponement of Subrogation, etc. None of the Pledgors
will exercise any rights which it may acquire by way of rights of subrogation
under this Pledge Agreement or otherwise, until the prior payment, in full and
in cash, of all Secured Obligations. Any amount paid to any Pledgor on account
of any such subrogation rights prior to the payment in full of all Secured
Obligations shall be held in trust for the benefit of the Lender Parties and
each holder of a Note and shall immediately be paid to the Administrative Agent
and credited and applied against the Secured Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement; provided,
however, that if
(a) any Pledgor has made payment to the Lender Parties and
each holder of a Note of all or any part of the Secured Obligations,
and
(b) all Secured Obligations have been paid in full and all
Commitments have been permanently terminated,
each Lender Party and each holder of a Note agrees that, at such Pledgor's
request, the Administrative Agent, on behalf of the Lender Parties and the
holders of the Notes, will execute and deliver to such Pledgor appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Pledgor of an interest in the
Secured Obligations resulting from such payment by such Pledgor. In furtherance
of the foregoing, for so long as any Secured Obligations or Commitments remain
outstanding, each Pledgor shall refrain from taking any action or commencing any
proceeding against the Borrower or the other Guarantors (or their respective
successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of proceeds of any Collateral
received by any Lender Party or any holder of a Note.
SECTION II.8. Pledgor Remains Liable. Anything herein to the contrary
notwithstanding
(a) each Pledgor will remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein,
and will perform all of its duties and obligations under such contracts
and agreements to the same extent as if this Pledge Agreement had not
been executed;
(b) the exercise by the Administrative Agent of any of its
rights hereunder will not release any Pledgor from any of its duties or
obligations under any such contracts or agreements included in the
Collateral; and
(c) neither the Administrative Agent nor any other Lender
Party will have any obligation or liability under any contracts or
agreements included in the Collateral by reason of this Pledge
Agreement, nor will the Administrative Agent or any other Lender Party
be obligated to perform any of the obligations or duties of any Pledgor
thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1. Warranties, etc. Each Pledgor represents and warrants
unto each Lender Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of Pledged Interests) by such Pledgor to the
Administrative Agent of any Collateral, as set forth in this Article.
SECTION 3.1.1. Incorporation of Credit Agreement Representations and
Warranties. The representations and warranties contained in Article VI of the
Credit Agreement are hereby confirmed and restated, insofar as the
representations and warranties contained therein by their terms are applicable
to any Pledgor or its properties or assets, each such representation and
warranty (insofar as applicable as aforesaid), together with all related
definitions and ancillary provisions, being hereby incorporated into this Pledge
Agreement by reference as though specifically set forth in this Section.
SECTION 3.1.2. Ownership, No Liens, etc. Each Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) the Collateral, free and clear of all Liens,
except any lien or security interest granted pursuant hereto in favor of the
Administrative Agent and any other Liens permitted under the Credit Agreement.
No effective financing statement or other filing similar in effect covering any
Collateral is on file in any recording office, except those filed in favor of
the Administrative Agent relating to this Pledge Agreement.
SECTION 3.1.3. Valid Security Interest. This Pledge Agreement creates a
valid security interest in the Collateral securing the payment of the Secured
Obligations. Each Pledgor has filed or caused to be filed all statements in the
appropriate offices therefor (or has executed and delivered to the
Administrative Agent originals thereof suitable for filing in such offices) and
has taken all of the actions necessary to create perfected and first-priority
security interests in the applicable Collateral, including (a) in the case of
Stock Collateral, delivery of such Collateral to the Administrative Agent, duly
endorsed in blank; and (b) in the case of Collateral comprised of uncertificated
securities and other Investment property (other than certificated securities),
causing the Administrative Agent to have "control" as such term relates to
Investment property (other than certificated securities of such Collateral).
SECTION 3.1.4. As to Pledged Interests. With respect to any Pledged
Interest Issuer that is
(a) a corporation, business trust, joint stock company or
similar Person, all Pledged Interests issued by such Issuer are duly
authorized and validly issued, fully paid and non-assessable, and
represented by a certificate (other than securities which are
uncertificated and for which a legal, valid and binding Control
Agreement has been delivered pursuant to Section 4.5); and
(b) a partnership or limited liability company, all Capital
Securities issued by such Issuer provide that such Capital Securities
are a security governed by Article 8 of the UCC.
The percentage of the issued and outstanding Capital Securities of each Pledged
Interest Issuer pledged by any Pledgor hereunder are as set forth on Schedule I
attached hereto. Each Pledgor has no direct Subsidiaries other than the Pledged
Interest Issuers.
SECTION 3.1.5. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority, regulatory body or any other Person is required (other than UCC
filings) either
(a) for the pledge by each Pledgor of any Collateral pursuant
to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by such Pledgor, or
(b) for the perfection or exercise by the Administrative Agent
of the voting or other rights provided for in this Pledge Agreement,
or, except with respect to the Pledged Interests, as may be required in
connection with a disposition of such Pledged Interests by laws
affecting the offering and sale of securities generally, the remedies
in respect of the Collateral pursuant to this Pledge Agreement.
SECTION 3.1.6. Compliance with Contracts, Laws, etc. Each Pledgor is in
compliance with the requirements of all applicable laws (including, without
limitation, the provisions of the Fair Labor Standards Act), contracts to which
it is a party, rules, regulations and orders of every governmental authority,
the non-compliance with which might reasonably be expected to materially
adversely affect the condition (financial or otherwise), operations, business,
assets or liabilities of such Pledgor and its Subsidiaries (taken as a whole) or
the value of the Collateral or the worth of the Collateral as collateral
security.
SECTION 3.1.7. As to Intercompany Notes. All intercompany notes have
been duly authorized, executed, endorsed, issued and delivered, and are the
legal, valid and binding obligation of the issuers thereof, and no payee
thereunder is in default. No maker has any defense or counterclaim to payment in
connection with any of said intercompany notes.
SECTION 3.1.8. Location, Records, etc. The place(s) of business and the
office(s) where each Pledgor keeps its records concerning Capital Securities
that are not securities are set forth on Item B of Schedule I hereto. None of
the Pledgors has been known by any legal name different from the one set forth
on the signature page hereto.
ARTICLE IV
COVENANTS
SECTION IV.1. Protect Collateral; Further Assurances, etc. None of the
Pledgors will sell, assign, transfer, pledge, or encumber in any other manner
the Collateral (except in favor of the Administrative Agent hereunder), except
for a Permitted Disposition thereof complying with the terms and conditions of
Section 7.2.11 of the Credit Agreement. In the event of a Permitted Disposition
of Collateral hereunder which is effected by any Pledgor in compliance with the
terms of the Credit Agreement, the Administrative Agent shall release its lien
and security interest in respect of the Collateral so disposed of upon request
therefor made by such Pledgor. Each Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. Each Pledgor agrees that at any
time, and from time to time, at the expense of such Pledgor, such Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be necessary or desirable, or that the Administrative Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing, each Pledgor will
(a) from time to time upon the request of the Administrative Agent, promptly
deliver to the Administrative Agent such stock powers, instruments and similar
documents, satisfactory in form and substance to the Administrative Agent, with
respect to such Collateral as the Administrative Agent may reasonably request
and will, from time to time upon the request of the Administrative Agent after
the occurrence and during the continuance of any Event of Default, promptly
transfer any securities constituting Collateral into the name of any nominee
designated by the Administrative Agent, all in form and substance satisfactory
to the Administrative Agent; (b) execute and file (or cause to be filed) such
financing statements or continuation statements, or amendments thereto, and such
other instruments or notices, as may be necessary or that the Administrative
Agent may request in order to perfect and preserve the security interests and
other rights granted or purported to be granted to the Administrative Agent
hereby; (c) not enter into any agreement amending, supplementing, or waiving any
provision of any intercompany note (including any underlying instrument pursuant
to which such intercompany note is issued) or compromising or releasing or
extending the time for payment of any obligation of the maker thereof; (d) not
take or omit to take any action the taking or the omission of which would result
in any impairment or alteration of any obligation of the maker of any
intercompany note or other instrument constituting Collateral; and (e) furnish
to the Administrative Agent, from time to time at the request of the
Administrative Agent, statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in reasonable
detail. With respect to the foregoing and the grant of the security interest
hereunder, each Pledgor hereby authorizes the Administrative Agent to file one
or more financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral without the signature of such Pledgor where
permitted by law. None of the Pledgors will permit any Pledged Interest Issuer
to issue any capital stock or other ownership interests unless the same is
immediately delivered in pledge to the Administrative Agent hereunder.
SECTION IV.2. Stock Powers, etc. Each Pledgor agrees that all Pledged
Interests (and all other shares of capital stock, partnership interests and
other ownership interests constituting Collateral) delivered by such Pledgor
pursuant to this Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Administrative Agent. Each Pledgor will, from time to time upon the request
of the Administrative Agent, promptly deliver to the Administrative Agent such
stock powers, instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the Collateral as the
Administrative Agent may reasonably request and will, from time to time upon the
request of the Administrative Agent after the occurrence and during the
continuation of any Event of Default, promptly transfer any Pledged Interests or
other shares of common stock or other ownership interests constituting
Collateral into the name of any nominee designated by the Administrative Agent.
SECTION IV.3. Continuous Pledge. Subject to Section 2.4, each Pledgor
will, at all times, keep pledged to the Administrative Agent pursuant hereto all
Pledged Interests and all other shares of capital stock constituting Collateral,
all Dividends (other than Dividends actually paid in cash in accordance with the
terms of the Credit Agreement) and Distributions with respect thereto, and all
other Collateral and other securities, instruments, proceeds, and rights from
time to time received by or distributable to such Pledgor in respect of any
Collateral.
SECTION IV.4. Voting Rights; Dividends, etc. Each Pledgor agrees:
(a) after any Default of the nature set forth in Section 8.1.9
of the Credit Agreement or Event of Default shall have occurred and be
continuing, promptly upon receipt thereof by such Pledgor and without
any request therefor by the Administrative Agent, to deliver (properly
endorsed where required hereby or requested by the Administrative
Agent) to the Administrative Agent all Dividends, all Distributions,
all interest, all principal, all other cash payments, and all proceeds
of the Collateral (in each case other than as permitted by clauses (a)
and (b) of Section 7.2.6 of the Credit Agreement), all of which shall
be held by the Administrative Agent as additional Collateral for use in
accordance with Sections 6.3 and 6.4; and
(b) after any Event of Default shall have occurred and be
continuing and the Administrative Agent has notified such Pledgor of
the Administrative Agent's intention to exercise its voting power under
this Section 4.4(b)
(i) the Administrative Agent may exercise (to the
exclusion of such Pledgor) the voting power and all other
incidental rights of ownership with respect to any Pledged
Interests or other shares of capital stock or other ownership
interests constituting Collateral and such Pledgor hereby
grants the Administrative Agent an irrevocable proxy,
exercisable under such circumstances, to vote the Pledged
Interests and such other Collateral; and
(ii) promptly to deliver to the Administrative Agent
such additional proxies and other documents as may be
reasonably necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by each Pledgor but which
such Pledgor is then obligated to deliver to the Administrative Agent, shall,
until delivery to the Administrative Agent, be held by such Pledgor separate and
apart from its other property in trust for the Administrative Agent for the
benefit of the Lenders. The Administrative Agent agrees that unless an Event of
Default shall have occurred and be continuing and the Administrative Agent shall
have given the notice referred to in Section 4.4(b), each Pledgor shall have the
exclusive voting power with respect to any shares of capital stock or other
ownership interests (including any of the Pledged Interests) constituting
Collateral and the Administrative Agent shall, upon the written request of such
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by such Pledgor which are necessary to allow such Pledgor
to exercise voting power with respect to any such share of capital stock or
other ownership interests (including any of the Pledged Interests) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by such Pledgor that would materially
impair any Collateral or be materially inconsistent with or violate any
provision of the Credit Agreement or any other Loan Document (including this
Pledge Agreement).
SECTION IV.5. Capital Securities of Subsidiaries. Each Pledgor will
cause each Pledged Interest Issuer:
(a) to provide in its Organic Documents that all securities
issued by such Issuer will be represented by a certificate; and
(b) that is a partnership or limited liability company, to
provide in its Organic Documents that all Capital Securities issued by
such Subsidiary will expressly provide that such Capital Securities are
securities governed by Article 8 of the UCC.
SECTION IV.6. Investment Property (other than Certificated Securities).
With respect to any Investment property (other than certificated securities)
owned by each Pledgor, such Pledgor will cause a Control Agreement relating to
such Investment property to be executed and delivered by such Pledgor and the
applicable financial intermediary in favor of the Administrative Agent or, if
any securities pledged by such Pledgor pursuant to this Pledge Agreement are
uncertificated securities, confirmation and evidence satisfactory to the
Administrative Agent that such Pledgor has taken all actions reasonably
requested by the Administrative Agent to provide for the transfer to, and
perfection by, the Administrative Agent of the security interests in such
uncertificated securities for the benefit of the Lender Parties in accordance
with the UCC.
ARTICLE V
THE AGENT
SECTION V.1. Administrative Agent Appointed Attorney-in-Fact. Each
Pledgor hereby irrevocably appoints the Administrative Agent such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time in the
Administrative Agent's discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including without limitation:
(a) to ask, demand, collect, ▇▇▇ for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral, and to perform the affirmative obligations of such
Pledgor hereunder (including Section 4.1).
Each Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION V.2. Administrative Agent May Perform. If any of the Pledgors
fails to perform any agreement contained herein, the Administrative Agent may
itself perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Pledgor pursuant to Section 6.4.
SECTION V.3. Administrative Agent Has No Duty. The powers conferred on
the Administrative Agent hereunder are solely to protect its interest (on behalf
of the Lender Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Property, whether or not the Administrative Agent has or
is deemed to have knowledge of such matters, or
(b) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
SECTION V.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral if it takes such action for that purpose as any of the
Pledgors reasonably requests in writing at times other than upon the occurrence
and during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION VI.1. Certain Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the UCC (whether or not the UCC applies
to the affected Collateral) and also may, without notice except as
specified below, sell the Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Administrative Agent's
offices or elsewhere, for cash, on credit or for future delivery
(without assumption of any credit risk), and upon such other terms as
the Administrative Agent may deem commercially reasonable in accordance
with applicable laws. Each Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten days' prior notice to such
Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Administrative Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given.
The Administrative Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into
the name of the Administrative Agent or its nominee, with or
without disclosing that such Collateral is subject to the lien
and security interest hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent of any
amount due or to become due thereunder,
(iii) enforce collection of any of the Collateral by
suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in
the appropriate Pledgor's name to allow collection of the
Collateral,
(v) take control of any proceeds of the Collateral,
and
(vi) execute (in the name, place and stead of any
Pledgor) endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or
any of the Collateral.
SECTION VI.2. Compliance with Restrictions (including Securities Laws).
Each Pledgor agrees that in any sale of any of the Collateral whenever an Event
of Default shall have occurred and be continuing, the Administrative Agent is
hereby authorized to comply with any limitation or restriction in connection
with such sale as it may be advised by counsel is necessary in order to avoid
any violation of applicable law (including compliance with such procedures as
may restrict the number of prospective bidders and purchasers, require that such
prospective bidders and purchaser have certain qualifications, and restrict such
prospective bidders and purchasers to persons who will represent and agree that
they are purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any governmental regulatory
authority or official, and such Pledgor further agrees that such compliance
shall not result in such sale being considered or deemed not to have been made
in a commercially reasonable manner, nor shall the Administrative Agent or any
other Lender Party be liable or accountable to such Pledgor for any discount
allowed by reason of the fact that such Collateral is sold in compliance with
any such limitation or restriction.
SECTION VI.3. Application of Proceeds. All cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Administrative Agent, be held, to the extent permitted under applicable law,
by the Administrative Agent as additional collateral security for, or then or at
any time thereafter be applied (after payment of any amounts payable to the
Administrative Agent pursuant to Sections 11.3 and 11.4 of the Credit Agreement
and Section 6.4 below) in whole or in part by the Administrative Agent against,
all or any part of the Secured Obligations in the following order:
(a) first, to payment of the expenses of such sale or other
realization including reasonable compensation to the Administrative
Agent and its agents and counsel, and all expenses, liabilities and
advances incurred or made by the Administrative Agent in connection
therewith, and any other unreimbursed expenses for which the
Administrative Agent is to be reimbursed pursuant to Sections 11.3 and
11.4 of the Credit Agreement or Section 6.4 hereof and unpaid fees
owing to the Administrative Agent under the Credit Agreement;
(b) second, to the ratable payment of accrued but unpaid
interest on the Loans;
(c) third, to the ratable (i) payment of unpaid principal of
the Loans under the Credit Agreement, (ii) reduction of "credit
exposure" under Rate Protection Agreements ("credit exposure" being
determined at such time in accordance with the customary methods of
calculating credit exposure under similar arrangements by the
counterparty to such arrangements), and (iii) cash collateralization of
Letter of Credit Outstandings;
(d) fourth, to the ratable payment of all other amounts
payable by the Obligors under the Credit Agreement; and
(e) fifth, to the ratable payment of all other Secured
Obligations owing under any Loan Document, and then to be held as
additional collateral security until the Termination Date, until all
Secured Obligations shall have been paid in full.
The Administrative Agent may make distributions hereunder in cash or in kind or,
on a ratable basis, in any combination thereof. Any surplus of such cash or cash
proceeds held by the Administrative Agent and remaining after payment in full of
all the Secured Obligations, and the termination of all Commitments, shall be
paid over to a Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
SECTION VI.4. Indemnity and Expenses. The Pledgors hereby jointly and
severally indemnify and hold harmless the Administrative Agent and the other
Lender Parties from and against any and all claims, losses, and liabilities
arising out of or resulting from this Pledge Agreement (including enforcement of
this Pledge Agreement), except claims, losses, or liabilities resulting from the
Administrative Agent's gross negligence or wilful misconduct. Upon demand, the
Pledgors will pay to the Administrative Agent the amount of any and all
reasonable expenses, including the reasonable fees and disbursements of its
counsel and of any experts and agents, which the Administrative Agent or, in the
case of clause (c) below, any other Lender Party may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
(d) the failure by any of the Pledgors to perform or observe
any of the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION VII.1. Loan Document; Counterparts. This Pledge Agreement is a
Loan Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof. This Pledge Agreement may be
executed by the parties hereto in several counterparts.
SECTION VII.2. Amendments, etc. No amendment to or waiver of any
provision of this Pledge Agreement nor consent to any departure by any of the
Pledgors herefrom shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent (acting with the requisite
consent of the Lenders as provided in the Credit Agreement), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it is given.
SECTION VII.3. Protection of Collateral. The Administrative Agent may
from time to time, at its option and at the expense of each Pledgor, perform any
act which such Pledgor agrees hereunder to perform and which such Pledgor shall
fail to perform after being requested in writing so to perform (it being
understood that no such request need be given after the occurrence and during
the continuance of any Event of Default) and the Administrative Agent may from
time to time take any other action which the Administrative Agent reasonably
deems necessary for the maintenance, preservation or protection of any of the
Collateral or of its security interest therein for the benefit of the Lender
Parties.
SECTION VII.4. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing or by facsimile
transmission and, if to any of the Pledgors, at the address of such Pledgor
provided for in the Credit Agreement and, if to the Administrative Agent, at its
address set forth in the Credit Agreement, or as to either party at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All such notices
and other communications, if mailed and properly addressed with postage prepaid,
shall be deemed given three Business Days after posting; any notice sent by
prepaid overnight express mail shall be deemed delivered on the next following
Business Day; and any notice transmitted by facsimile shall be deemed given upon
receipt of electronic confirmation of transmission by the sender thereof.
SECTION VII.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION VII.6. Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION VII.7. Governing Law, Entire Agreement, etc. THIS PLEDGE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION VII.8. Forum Selection and Consent to Jurisdiction. TO THE
FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY LENDER PARTY MAY BE BROUGHT AND MAINTAINED IN ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURTS SITTING IN THE CITY OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PLEDGOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
ANY UNITED STATES FEDERAL OR NEW YORK STATE COURTS SITTING IN THE CITY OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY OF THE PLEDGOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, SUCH PLEDGOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
PLEDGE AGREEMENT.
SECTION VII.9. Waiver of Jury Trial, etc. EACH LENDER PARTY AND EACH
PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE PLEDGOR. EACH PLEDGOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT ENTERING INTO THIS PLEDGE
AGREEMENT. IN NO EVENT SHALL ANY LENDER PARTY BE LIABLE FOR ANY CONSEQUENTIAL
DAMAGES WHICH MAY BE ALLEGED IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective authorized
officers thereunto duly authorized as of the day and year first above written.
ATLANTIC GUEST, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title:
KCLLC HOLDINGS, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title:
ACME ELECTRIC CORPORATION
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title:
ATTACHMENT 1
Item A. Pledged Interests:
------- ------------------
Common Stock
-----------------------------------------------------------------------------
Pledged Authorized Outstanding % of Shares
Interest Issuer Shares Shares Pledged
---------------------------------------- -----------------------------------------------------------------------------
VFC Acquisition Company, Inc. 3,000 1,000 100%
---------------------------------------- -----------------------------------------------------------------------------
Acme-URDC, Inc. 50,000 100 100%
---------------------------------------- -----------------------------------------------------------------------------
Acme Electric Mexico Holdings I, Inc. 1,000 100 100%
---------------------------------------- -----------------------------------------------------------------------------
Acme Electric Mexico Holdings II, Inc. 1,000 100 100%
---------------------------------------- -----------------------------------------------------------------------------
Membership Interests
-----------------------------------------------------------------------------
Pledged % of Membership Interests Pledged
Interest Issuer
---------------------------------------- -----------------------------------------------------------------------------
Guest Building, LLC 100%
---------------------------------------- -- -----------------------------------------------------------------------------
Item B. Location of Records Concerning Capital Securities that Are Not
Securities:
----------------------------------------------------------------------
None.