EXHIBIT 10.29
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of January 29, 1999 is made and given
by OMEGA KITCHEN CRAFT HOLDINGS CORP., a Delaware corporation (the "Pledgor"),
to U.S. BANK NATIONAL ASSOCIATION, a national banking association, as collateral
agent for the "Lenders" (as defined below) pursuant to the "Intercreditor
Agreement" (as defined below) (in such capacity, the "Secured Party").
RECITALS
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A. Omega Cabinets, Ltd., a Delaware corporation ("Omega") and Panther
Transport, Inc., an Iowa corporation ("Panther") (each a "Borrower" and
collectively, the "Borrowers"), together with certain Affiliates, certain
financial institutions (the "Banks") and U.S. Bank National Association, as
Agent, have entered into an Amended and Restated Credit Agreement dated as of
January 29, 1999 (as the same may hereafter be amended, restated, or otherwise
modified from time to time, the "USBNA Credit Agreement") pursuant to which the
Banks have agreed to extend to the Borrowers certain credit accommodations.
B. Omega has executed and delivered a guaranty (the "CIBC Guaranty")
to the financial institutions party to a Credit Agreement dated as of January
29, 1999 among 3578275 Canada, Inc., as assumed by operation of law in an
amalgamation by Kitchen Craft of Canada, Ltd. ("New Kitchen Craft"), such
financial institutions party thereto, and Canadian Imperial Bank of Commerce, as
Agent (as the same may hereafter be amended, supplemented, extended, restated or
otherwise modified from time to time, the "CIBC Credit Agreement", and together
with the USBNA Credit Agreement, the "Credit Agreements"), pursuant to which
CIBC Guaranty Omega has guaranteed the obligations of New Kitchen Craft under
the CIBC Credit Agreement.
C. Pledgor is a wholly-owned Subsidiary of Omega.
D. The Pledgor is the owner of the shares (the "Pledged Shares") of
stock described in Part I of Schedule I hereto issued by the corporation or
corporations named therein.
E. It is a condition precedent to the obligation of the Lenders to
extend credit accommodations pursuant to the terms of the Credit Agreements that
this Agreement be executed and delivered by the Pledgor.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to enter into the Credit Agreements and to extend credit
accommodations thereunder, the Pledgor hereby agrees with the Secured Party, for
the benefit of the Lenders and the Agents, as follows:
Section 1. Defined Terms.
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1(a) As used in this Agreement, the following terms shall have the
meanings indicated:
"Agent" shall mean the "Agent" (as defined in the USBNA Credit
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Agreement) or the "Agent" (as defined in the CIBC Credit Agreement).
"CIBC Guaranty" shall have the meaning given to such term in Recital
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B.
"Collateral" shall have the meaning given to such term in Section 2.
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"Credit Agreements" shall have the meaning given in Recital B.
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"Event of Default" shall have the meaning given to such term in
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Section 11.
"Intercreditor Agreement" shall mean the Intercreditor Agreement dated
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as of January 29, 1999 among the Lenders, as the same may be amended,
supplemented, extended, restated or otherwise modified from time to time.
"Kitchen Craft": shall have the meaning given to such term in Recital
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B.
"Lenders" shall mean, collectively, the "Banks" (as defined in the
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USBNA Credit Agreement) and the "Lenders" (as defined in the CIBC Credit
Agreement).
"Lien" shall mean any security interest, mortgage, pledge, lien,
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charge, encumbrance, title retention agreement or analogous instrument or device
(including the interest of the lessors under capitalized leases), in, of or on
any assets or properties of the Person referred to.
"Obligations" shall mean all (a) all indebtedness, liabilities and
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obligations of the Pledgor to the Lenders and the Agents of every kind, nature
or description under the USBNA Credit Agreement or the CIBC Guaranty, including
without limitation each Borrower's respective obligation on any promissory note
or notes under the USBNA Credit Agreement and any note or notes hereafter issued
in substitution or replacement thereof and any letter of credit reimbursement
obligations and fees, and in all of the foregoing cases whether due or to become
due, and whether now existing or hereafter arising or incurred and (b) all
liabilities of the Pledgor under this Agreement, and in all of the foregoing
cases whether due or to become due, and whether now existing or hereafter
arising or incurred.
"Person" shall mean any individual, corporation, partnership, limited
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liability company or partnership, joint venture, firm, association, trust,
unincorporated organization,
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government or governmental agency or political subdivision or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Pledgor" shall have the meaning given to such term in the Preamble.
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"Pledged Shares" shall have the meaning given to such term in Recital
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D above.
"Secured Party" shall have the meaning given to such term in the
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Preamble.
"Security Interest" shall have the meaning given to such term in
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Section 2.
1(b) Terms Defined in Uniform Commercial Code. All other terms used
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in this Agreement that are not specifically defined herein or the definitions of
which are not incorporated herein by reference shall have the meaning assigned
to such terms in the Uniform Commercial Code in effect in the State of Minnesota
as of the date first above written to the extent such other terms are defined
therein.
1(c) Singular/Plural, Etc. Unless the context of this Agreement
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otherwise clearly requires, references to the plural include the singular, the
singular, the plural and "or" has the inclusive meaning represented by the
phrase "and/or." The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The words "hereof,"
"herein," "hereunder," and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References to Sections are references to Sections in this Pledge Agreement
unless otherwise provided.
Section 2. Pledge. As security for the payment and performance of
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all of the Obligations, the Pledgor hereby pledges to the Secured Party, for the
benefit of the Secured Party, the Agents and the Lenders, and grants to the
Secured Party a security interest, for the benefit of the Secured Party, the
Agents and the Lenders (the "Security Interest"), in the following (the
"Collateral"):
2(a) The Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the Pledged Shares.
2(b) All additional shares of stock of any issuer of the Pledged
Shares from time to time acquired by the Pledgor in any manner, and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares.
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2(c) All proceeds of any and all of the foregoing (including
proceeds that constitute property of types described above).
Notwithstanding Sections 2(a), (b) and (c) above, the payment and performance of
the Obligations shall not be secured by more than sixty-six percent (66%) of the
outstanding stock or other equity interests in any foreign corporation.
Section 3. Delivery of Collateral. All certificates and instruments
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representing or evidencing the Pledged Shares shall be delivered to the Secured
Party contemporaneously with the execution of this Agreement. All certificates
and instruments representing or evidencing Collateral received by the Pledgor
after the execution of this Agreement shall be delivered to the Secured Party
promptly upon the Pledgor's receipt thereof. All such certificates and
instruments shall be held by or on behalf of the Secured Party pursuant hereto
and shall be in suitable form for transfer by delivery, or shall be accompanied
by duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Secured Party. The Secured Party shall have the
right at any time, whether before or after an Event of Default, to cause any or
all of the Collateral to be transferred of record into the name of the Secured
Party or its nominee (but subject to the rights of the Pledgor under Section 6)
and to exchange certificates representing or evidencing Collateral for
certificates of smaller or larger denominations. Notwithstanding any of the
foregoing, as to any Collateral consisting of book-entry or uncertificated
securities or securities which are held by a third Person, the Pledgor shall
deliver to the Secured Party evidence satisfactory to the Secured Party that
such Collateral has been registered in the name of, or as pledged to, the
Secured Party. Such evidence shall include the acknowledgment of the issuer or
Person holding such Collateral that such issuer or Person holds such Collateral
as agent for the Secured Party and that such Collateral is identified on the
books of such issuer or third Person as belonging to or pledged to the Secured
Party.
Section 4. Certain Warranties and Covenants. The Pledgor makes the
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following warranties and covenants:
4(a) The Pledgor has title to the Pledged Shares and will have
title to each other item of Collateral hereafter acquired, free of all
Liens except the Security Interest.
4(b) The Pledgor has full power and authority to execute this
Pledge Agreement, to perform the Pledgor's obligations hereunder and to
subject the Collateral to the Security Interest created hereby.
4(c) No financing statement covering all or any part of the
Collateral is on file in any public office (except for any financing
statements filed by the Secured Party.
4(d) The Pledged Shares have been duly authorized and validly
issued by the issuer thereof and are fully paid and non-assessable. The
Pledged Shares are not subject to any offset or similar right or claim of
the issuers thereof.
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4(e) The Pledged Shares constitute the percentage of the issued
and outstanding shares of stock of the respective issuers thereof indicated
on Schedule I (if any such percentage is so indicated).
Section 5. Further Assurances. The Pledgor agrees that at any time
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and from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action that may be necessary or that the Secured Party may reasonably request,
in order to perfect and protect the Security Interest or to enable the Secured
Party to exercise and enforce its rights and remedies hereunder with respect to
any Collateral (but any failure to request or assure that the Pledgor execute
and deliver such instruments or documents or to take such action shall not
affect or impair the validity, sufficiency or enforceability of this Agreement
and the Security Interest, regardless of whether any such item was or was not
executed and delivered or action taken in a similar context or on a prior
occasion).
Section 6. Voting Rights; Dividends; Etc.
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6(a) Subject to paragraph (d) of this Section 6, the Pledgor
shall be entitled to exercise or refrain from exercising any and all voting
and other consensual rights pertaining to the Pledged Shares or any other
stock that becomes part of the Collateral or any part thereof for any
purpose not inconsistent with the terms of this Agreement or the Credit
Agreement; provided, however, that the Pledgor shall not exercise or
refrain from exercising any such right if such action could reasonably be
expected to have a material adverse effect on the value of the Collateral
or any material part thereof.
6(b) Subject to paragraph (e) of this Section 6, the Pledgor
shall be entitled to receive, retain, and use in any manner not prohibited
by the Credit Agreement any and all interest and dividends paid in respect
of the Collateral; provided, however, that any and all
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(i) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Collateral,
(ii) dividends and other distributions paid or payable in cash in
respect of any Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(iii) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any Collateral,
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shall be, and shall be forthwith delivered to the Secured Party to hold as,
Collateral and shall, if received by the Pledgor, be received in trust for
the benefit of the Secured Party, be segregated from the other property or
funds of the Pledgor, and be forthwith delivered to the Secured Party as
Collateral in the same form as so received (with any necessary indorsement
or assignment). The Pledgor shall, upon request by the Secured Party,
promptly execute all such documents and do all such acts as may be
necessary or desirable to give effect to the provisions of this Section 6
(b).
6(c) The Secured Party shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights that it is
entitled to exercise pursuant to Section 6 (a) hereof and to receive the
dividends and interest that it is authorized to receive and retain pursuant
to Section 6 (b) hereof.
6(d) Upon the occurrence and during the continuance of any Event
of Default, the Secured Party shall have the right in its sole discretion,
and the Pledgor shall execute and deliver all such proxies and other
instruments as may be necessary or appropriate to give effect to such
right, to terminate all rights of the Pledgor to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise
be entitled to exercise pursuant to Section 6 (a) hereof, and all such
rights shall thereupon become vested in the Secured Party who shall
thereupon have the sole right to exercise or refrain from exercising such
voting and other consensual rights; provided, however, that the Secured
Party shall not be deemed to possess or have control over any voting rights
with respect to any Collateral unless and until the Secured Party has given
written notice to the Pledgor that any further exercise of such voting
rights by the Pledgor is prohibited and that the Secured Party and/or its
assigns will henceforth exercise such voting rights; and provided, further,
that neither the registration of any item of Collateral in the Secured
Party's name nor the exercise of any voting rights with respect thereto
shall be deemed to constitute a retention by the Secured Party of any such
Collateral in satisfaction of the Obligations or any part thereof.
6(e) Upon the occurrence and during the continuance of any Event
of Default:
(i) all rights of the Pledgor to receive the dividends and interest
that it would otherwise be authorized to receive and retain pursuant
to Section 6(b) hereof shall cease, and all such rights shall
thereupon become vested in the Secured Party who shall thereupon have
the sole right to receive and hold such dividends as Collateral, and
(ii) all payments of interest and dividends that are received by the
Pledgor contrary to the provisions of paragraph (i) of this Section 6
(e) shall be received in trust for the benefit of the Lenders and the
Secured Party, shall be segregated from
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other funds of the Pledgor and shall be forthwith paid over to the
Secured Party as Collateral in the same form as so received (with any
necessary indorsement).
Section 7. Transfers and Other Liens; Additional Shares.
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7(a) Except as may be permitted by the Credit Agreement, the
Pledgor agrees that it will not (i) sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with respect to,
any of the Collateral, or (ii) create or permit to exist any Lien, upon or
with respect to any of the Collateral.
7(b) The Pledgor agrees that it will (i) cause each issuer of
the Pledged Shares that it controls not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued
by such issuer, except to the Pledgor, and (ii) pledge hereunder,
immediately upon its acquisition (directly or indirectly) thereof, any and
all additional shares of stock or other securities of each issuer of the
Pledged Shares.
Section 8. Secured Party Appointed Attorney-in-Fact. Effective upon
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and during the continuance of an Event of Default, the Pledgor hereby appoints
the Secured Party the 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 Secured Party's good-faith discretion, to take any
action and to execute any instrument that the Secured Party may reasonably
believe necessary or advisable to accomplish the purposes of this Agreement
(subject to the rights of the Pledgor under Section 6 hereof), in a manner
consistent with the terms hereof, including, without limitation, to receive,
indorse and collect all instruments made payable to the Pledgor representing any
dividend or other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same.
Section 9. Secured Party May Perform. Upon the occurrence and during
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the continuance of an Event of Default, if the Pledgor fails to perform any
agreement contained herein, the Secured Party may itself perform, or cause
performance of, such agreement, and the reasonable expenses of the Secured Party
incurred in connection therewith shall be payable by the Pledgor under Section
14 hereof.
Section 10. The Secured Party's Duties. The powers conferred on the
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Secured Party hereunder are solely to protect its interest in the Collateral and
shall not impose any duty upon it to exercise any such powers. The Secured
Party shall be deemed to have exercised reasonable care in the safekeeping of
any Collateral in its possession if such Collateral is accorded treatment
substantially equal to the safekeeping which the Secured Party accords its own
property of like kind. Except for the safekeeping of any Collateral in its
possession and the accounting for monies and for other properties actually
received by it hereunder, the Secured Party shall have no duty, as to any
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Secured Party has or is deemed to have knowledge
of such matters, or as to
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the taking of any necessary steps to preserve rights against any Persons or any
other rights pertaining to any Collateral. The Secured Party will take action in
the nature of exchanges, conversions, redemption, tenders and the like requested
in writing by the Pledgor with respect to any of the Collateral in the Secured
Party's possession if the Secured Party in its reasonable judgment determines
that such action will not impair the Security Interest or the value of the
Collateral, but a failure of the Secured Party to comply with any such request
shall not of itself be deemed a failure to exercise reasonable care.
Section 11. Default. Each of the following occurrences shall
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constitute an Event of Default under this Agreement: (a) the Pledgor shall fail
to observe or perform any covenant or agreement applicable to the Pledgor under
this Agreement within fifteen (15) days after the earlier to occur of (i) the
date the Pledgor gives notice of such failure to the Secured Party, or (ii) the
date the Secured Party gives notice of such failure to the Pledgor; or (b) any
representation or warranty made by the Pledgor in this Agreement or in any
financial statements, reports or certificates heretofore or at any time
hereafter submitted by or on behalf of the Pledgor to the Secured Party shall
prove to have been false or materially misleading when made; or (c) any Event of
Default shall occur under either Credit Agreement (beyond the applicable cure
period specified therein).
Section 12. Remedies upon Default. If any Event of Default shall
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have occurred and be continuing:
12(a) The Secured Party 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 Uniform Commercial Code of the State of Minnesota (the
"Code") in effect at that time (whether or not the Code then applies to the
affected Collateral), and 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 exchange, broker's board or at any of the Secured
Party's offices or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as the Secured Party may reasonably believe are
commercially reasonable. The Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten days' prior notice to the
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 Secured Party shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Secured Party 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. To the extent
permitted by applicable law, the Pledgor hereby waives all requirements of
law, if any, relating to the marshalling of assets which would be
applicable in connection with the enforcement by the Secured Party of its
remedies hereunder, absent this waiver.
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12(b) The Secured Party may notify any Person obligated on any
of the Collateral that the same has been assigned or transferred to the
Secured Party and that the same should be performed as requested by, or
paid directly to, the Secured Party, as the case may be. The Pledgor shall
join in giving such notice, if the Secured Party so requests. The Secured
Party may, in the Secured Party's name or in the Pledgor's name, demand,
xxx for, collect or receive any money or property at any time payable or
receivable on account of, or securing, any such Collateral or grant any
extension to, make any compromise or settlement with or otherwise agree to
waive, modify, amend or change the obligation of any such Person.
12(c) Any cash held by the Secured Party as Collateral and all
cash proceeds received by the Secured Party in respect of any sale of,
collection from, or other realization upon all or any part of the
Collateral may, in accordance with the Intercreditor Agreement, be held by
the Secured Party as collateral for, or then or at any time thereafter be
applied in whole or in part by the Secured Party against, all or any part
of the Obligations (including any expenses of the Secured Party payable
pursuant to Section 14 hereof).
Section 13. Waiver of Certain Claims. The Pledgor acknowledges that
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because of present or future circumstances, a question may arise under the
Securities Act of 1933, as from time to time amended (the "Securities Act"),
with respect to any disposition of the Collateral permitted hereunder. The
Pledgor understands that compliance with the Securities Act may very strictly
limit the course of conduct of the Secured Party if the Secured Party were to
attempt to dispose of all or any portion of the Collateral and may also limit
the extent to which or the manner in which any subsequent transferee of the
Collateral or any portion thereof may dispose of the same. There may be other
legal restrictions or limitations affecting the Secured Party in any attempt to
dispose of all or any portion of the Collateral under the applicable Blue Sky or
other securities laws or similar laws analogous in purpose or effect. The
Secured Party may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Collateral for their own account for investment only and not to
engage in a distribution or resale thereof. The Pledgor agrees that to the
extent not in violation of applicable law, the Secured Party shall not incur any
liability, and any liability of the Pledgor for any deficiency shall not be
impaired, as a result of the sale of the Collateral or any portion thereof at
any such private sale in a manner that the Secured Party reasonably believes is
commercially reasonable (within the meaning of Section 9-504(3) of the Uniform
Commercial Code). The Pledgor hereby waives any claims against the Secured
Party, either Agent or any Lender arising by reason of the fact that the price
at which the Collateral may have been sold at such sale was less than the price
that might have been obtained at a public sale or was less than the aggregate
amount of the Obligations, even if the Secured Party shall accept the first
offer received and does not offer any portion of the Collateral to more than one
possible purchaser. The Pledgor further agrees that to the extent not in
violation of applicable law (including federal and state securities laws), the
Secured Party has no obligation to delay sale of any Collateral for the period
of time necessary to permit the issuer of such Collateral to qualify or
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register such Collateral for public sale under the Securities Act, applicable
Blue Sky laws and other applicable state and federal securities laws, even if
said issuer would agree to do so. Without limiting the generality of the
foregoing, the provisions of this Section would apply if, for example, the
Secured Party were to place all or any portion of the Collateral for private
placement by an investment banking firm, or if such investment banking firm
purchased all or any portion of the Collateral for its own account, or if the
Secured Party placed all or any portion of the Collateral privately with a
purchaser or purchasers.
Section 14. Costs and Expenses; Indemnity. The Pledgor will pay or
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reimburse the Secured Party on demand for all reasonable out-of-pocket expenses
(including in each case all filing and recording fees and taxes and all
reasonable fees and expenses of counsel and of any experts and agents) incurred
by the Secured Party in connection with the creation, perfection, protection,
satisfaction, foreclosure or enforcement of the Security Interest and the
preparation, administration, continuance, amendment or enforcement of this
Agreement, and all such costs and expenses shall be part of the Obligations
secured by the Security Interest. The Pledgor shall indemnify and hold the
Secured Party harmless from and against any and all claims, losses and
liabilities (including reasonable attorneys' fees) resulting from this Agreement
(including enforcement of this Agreement) or the Secured Party's actions
pursuant hereto, except claims, losses or liabilities resulting from the Secured
Party's gross negligence or willful misconduct. Any liability of the Pledgor to
indemnify and hold the Secured Party harmless pursuant to the preceding sentence
shall be part of the Obligations secured by the Security Interest. The
obligations of the Pledgor under this Section shall survive any termination of
this Agreement.
Section 15. Waivers and Amendments; Remedies. Notwithstanding any
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provisions to the contrary herein, any term of this Agreement may be amended
with the written consent of the Pledgor; provided that no amendment,
modification or waiver of any provision of this Agreement or consent to any
departure herefrom by the Pledgor or other party thereto shall in any event be
effective unless the same shall be in writing and signed by the Secured Party,
and then such amendment, modification, waiver or consent shall be effective only
in the specific instance and for the purpose for which given. The Security
Interest can be released, only explicitly in a writing signed by the Secured
Party. A waiver so signed shall be effective only in the specific instance and
for the specific purpose given. Mere delay or failure to act shall not preclude
the exercise or enforcement of any rights and remedies available to the Secured
Party. All rights and remedies of the Secured Party shall be cumulative and may
be exercised singly in any order or sequence, or concurrently, at the Secured
Party's option, and the exercise or enforcement of any such right or remedy
shall neither be a condition to nor bar the exercise or enforcement of any
other.
Section 16. Notices. Except when telephonic notice is expressly
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authorized by this Agreement, any notice or other communication to any party in
connection with this Agreement shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
pursuant to the applicable Credit Agreement. All periods of notice shall be
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measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by telegram, telex or facsimile transmission, from
the first Business Day after the date of sending if sent by overnight courier,
or from three days after the date of mailing if mailed.
Section 17. Pledgor Acknowledgments. The Pledgor hereby acknowledges
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that (a) the Pledgor has been advised by counsel in the negotiation, execution
and delivery of this Agreement, (b) the Lenders, the Agents and the Secured
Party have no fiduciary relationship to the Pledgor, the relationship being
solely that of debtor and creditor, and (c) no joint venture exists between the
Pledgor, the Lenders, the Agents and the Secured Party.
Section 18. Continuing Security Interest; Assignments under Credit
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Agreement. This Agreement shall create a continuing security interest in the
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Collateral and shall (a) remain in full force and effect until the payment in
full of the Obligations (except for contingent indemnity and other contingent
obligations not yet due and payable) and the expiration of the obligation, if
any, of the Lenders to extend credit accommodations to the Pledgor, (b) be
binding upon the Pledgor, its successors and assigns, and (c) inure, together
with the rights and remedies of the Secured Party hereunder, to the benefit of
the Secured Party, the Lenders and the Agents, and be enforceable by the Secured
Party and its respective successors, transferees and assigns. Without limiting
the generality of the foregoing clause (c), the Lenders or the Agents may assign
or otherwise transfer all or any portion of their rights and obligations under
the Credit Agreements to any other Person to the extent and in the manner
provided in the Credit Agreements, and may transfer all or any portion of their
rights under this Pledge Agreement to such Persons in connection therewith.
Section 19. Termination of Security Interest. Upon payment in full
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of the Obligations (except for contingent indemnity and other contingent
Obligations not yet due and payable) and the expiration of any obligation of the
Lenders to extend credit accommodations to the Pledgor or Kitchen Craft, the
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the Pledgor. Upon any such termination, the Secured
Party will return to the Pledgor such of the Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof and execute and deliver
to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such termination. Any reversion or return of the Collateral upon
termination of this Agreement and any instruments of transfer or termination
shall be at the expense of the Pledgor and shall be without warranty by, or
recourse on, the Secured Party. As used in this Section, "Pledgor" includes any
assigns of Pledgor, any Person holding a subordinate security interest in any
part of the Collateral or whoever else may be lawfully entitled to any part of
the Collateral.
SECTION 20. GOVERNING LAW AND CONSTRUCTION. THE VALIDITY,
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CONSTRUCTION AND ENFORCEABILITY OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF MINNESOTA, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED
STATES APPLICABLE TO NATIONAL BANKS; PROVIDED, HOWEVER, THAT NO EFFECT SHALL BE
GIVEN
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TO CONFLICT OF LAWS PRINCIPLES OF THE STATE OF MINNESOTA, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE MANDATORILY GOVERNED BY
THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF MINNESOTA. Whenever possible,
each provision of this Agreement and any other statement, instrument or
transaction contemplated hereby or relating hereto shall be interpreted in such
manner as to be effective and valid under such applicable law, but, if any
provision of this Agreement or any other statement, instrument or transaction
contemplated hereby or relating hereto shall be held to be prohibited or invalid
under such applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement or any other
statement, instrument or transaction contemplated hereby or relating hereto.
SECTION 21. CONSENT TO JURISDICTION. AT THE OPTION OF THE SECURED
-----------------------
PARTY, THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE
COURT SITTING IN HENNEPIN COUNTY OR XXXXXX COUNTY, MINNESOTA; AND THE PLEDGOR
CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT
THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE PLEDGOR COMMENCES
ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY
ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT,
THE SECURED PARTY AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED
TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER
CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
SECTION 22. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR AND THE
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SECURED PARTY, BY ITS ACCEPTANCE OF THIS AGREEMENT, IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 23. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument.
Section 24. General. All representations and warranties contained in
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this Agreement or in any other agreement between the Pledgor and the Secured
Party shall survive the execution, delivery and performance of this Agreement
and the creation and payment of the Obligations. The Pledgor waives notice of
the acceptance of this Agreement by the Secured
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Party. Captions in this Agreement are for reference and convenience only and
shall not affect the interpretation or meaning of any provision of this
Agreement.
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IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
PLEDGOR:
OMEGA KITCHEN CRAFT HOLDINGS CORP.
By /s/ XXXXXX X. XXXXX
---------------------------
Name ________________________
Title________________________
Address for Pledgor:
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
U.S. BANK NATIONAL ASSOCIATION
By /s/ XXXX X. XXXXX
---------------------------
Name ________________________
Title________________________
Address for the Secured Party:
U.S. Bank National Association
U.S. Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, XXXX0000
Telecopier No.: (000) 000-0000
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SCHEDULE I
PLEDGED STOCK
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Stock Issuer:
Percentage Ownership: 100%
Class of Stock:
Certificate No(s).:
Par Value:
Number of Shares:
Stock Issuer:
Percentage Ownership: 100%
Class of Stock:
Certificate No(s).:
Par Value:
Number of Shares:
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