SECOND AMENDED AND RESTATED AGREEMENT
EXHIBIT 10.50
SECOND AMENDED AND RESTATED AGREEMENT
THIS SECOND AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of October 12, 2001, is made by BMC INDUSTRIES, INC., a Minnesota corporation (the “Pledgor”), to BANKERS TRUST COMPANY, as Collateral Agent (the “Pledgee”) for the benefit of (i) the Lenders and the Agent under the Credit Agreement hereinafter referred to (such Lenders and the Agent are hereinafter called the “Bank Creditors”), (ii) if one or more Lenders or any Affiliate of a Lender enters into one or more (A) interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements), (B) foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values and/or (C) other types of hedging agreements from time to time (collectively, the “Interest Rate Protection or Other Hedging Agreements”), with, or guaranteed by, the Pledgor, any such Lender or Lenders or Affiliate or Affiliates (even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason) so long as any such Lender or Affiliate participates in the extension of such Interest Rate Protection or Other Hedging Agreements and their subsequent assigns, if any (collectively, the “Other Creditors”) and (iii) U.S. Bank National Association ("US Bank") as lender under that certain Continuing Reimbursement Agreement for Commercial Letters of Credit, dated as of July 14, 2000 the "US Bank Letter of Credit Facility") among the Borrower and US Bank (the "LC Creditor" and, together with the Bank Creditors and the Other Creditors, are hereinafter called the “Secured Creditors”). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement shall be used herein as so defined.
(i) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations and indebtedness (including, without limitation, indemnities, Fees and interest thereon) of the Pledgor to the Bank Creditors, whether now existing or hereafter incurred under, arising out of, or in connection with the Credit Agreement and the other Loan Documents and the due performance and compliance by the Pledgor with all of the terms, conditions and agreements contained in the Credit Agreement and the other Loan Documents (all such principal, interest, obligations and liabilities described in this clause (i) being herein collectively called the “Credit Agreement Obligations”);
(ii) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations and liabilities owing by the Pledgor to the Other Creditors under, or with respect to, (x) any Interest Rate Protection or Other Hedging Agreement, including all obligations of the Pledgor in respect of Interest Rate Protection or Other Hedging Agreement, whether such Interest Rate Protections or Other Hedging Agreements are now in existence or hereafter arising, and the due performance and compliance by the Pledgor with all of the terms, conditions and agreements contained therein and (y) the US Bank Letter of Credit Facility up to a maximum amount of $2,000,000 (provided that at no time shall there be more than $2,000,000 under the US Bank Letter of Credit Facility secured by the Security Documents) (all such obligations and liabilities described in this clause (ii) being herein collectively called the “Other Obligations”);
(iii) any and all sums advanced by the Pledgee in accordance with the Loan Documents in order to preserve the Collateral (as hereinafter defined) or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any indebtedness, obligations, or liabilities referred to in clauses (i) , (ii) and (iii) above, after an Event of Default (as such term is defined in the Credit Agreement) shall have occurred and be continuing, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Pledgee of its rights hereunder, together with reasonable attorneys’ fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such Secured Creditor has the right to reimbursement under Section 11 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i) through (v) of this Section 1 being herein collectively called the “Obligations,” it being acknowledged and agreed that the “Obligations” shall include extensions of credit of the types described above, whether outstanding on the date of this Agreement or extended from time to time after the date of this Agreement.
3. PLEDGE OF SECURITIES, STOCK, ETC.
3.1 Pledge. To secure the Obligations, and for the
purposes set forth in Section 1 hereof, the Pledgor hereby (i) grants to
the Pledgee a security interest in all of the Collateral (as hereinafter
defined), (ii) pledges and deposits with the Pledgee the Securities owned by
the Pledgor on the date hereof, and acknowledging that it previously delivered
to the Pledgee certificates or instruments therefor, duly endorsed in blank in
the case of Notes, and accompanied by undated stock powers duly executed in
blank by the Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such Securities), or such other instruments of
transfer as are acceptable to the Pledgee and (iii) assigns, transfers,
hypothecates, mortgages, charges and sets over to the Pledgee all of the
Pledgor’s right, title and interest in and to such Securities (and in and to
all certificates or instruments evidencing such Securities), to be held by the
Pledgee as collateral security for the Obligations, upon the terms and
conditions set forth in this Agreement.
3.2 Subsequently Acquired Securities. If the Pledgor shall acquire (by purchase, stock dividend or otherwise) any additional Securities at any time or from time to time after the date hereof, the Pledgor will immediately pledge and deposit such Securities (or certificates or instruments representing such Securities) as security with the Pledgee and deliver to the Pledgee certificates or instruments therefor, duly endorsed in blank in the case of Notes, and accompanied by undated stock powers duly executed in blank by the Pledgor (and accompanied by any transfer tax stamps required in connection with the pledge of such Securities) in the case of Stock, or such other instruments of transfer as are reasonably acceptable to the Pledgee, and any other foreign security documentation reasonably requested by Pledgee, and will promptly thereafter deliver to the Pledgee a certificate executed by a Responsible Officer of the Pledgor describing such Securities and certifying that the same have been duly pledged with the Pledgee hereunder. If any Domestic Subsidiary of Pledgor shall hereafter own capital stock of any Material Subsidiary, then Pledgor shall cause such Domestic Subsidiary to enter into a pledge agreement in substantially the form hereof, and shall deliver any other security documentation reasonably requested by Pledgee, in order to cause the stock of such Material Subsidiary to be pledged to the Pledgee for the benefit of the Lenders. Subject to the last sentence of Section 2, the Pledgor shall not be required at any time to pledge hereunder more than 65% of the total combined voting power of all classes of capital stock of any Foreign Subsidiary entitled to vote.
3.3 Uncertificated Securities. Notwithstanding anything to the contrary contained in Sections 3.1 and 3.2 hereof, if any Securities (whether now owned or hereafter acquired) are uncertificated securities, the Pledgor shall promptly notify the Pledgee thereof, and shall promptly take all actions required to perfect the security interest of the Pledgee under applicable law (including, in any event, under Sections 8-313 and 8-321 of the New York Uniform Commercial Code if applicable). The Pledgor further agrees to take such actions as the Pledgee deems necessary or desirable to effect the foregoing and to permit the Pledgee to exercise any of its rights and remedies hereunder, and agrees to provide an opinion of counsel reasonably satisfactory to the Pledgee with respect to any such pledge of uncertificated Stock promptly upon the reasonable request of the Pledgee. Subject to the last sentence of Section 2, the Pledgor shall not be required, at any time, to pledge hereunder more than 65% of the total combined voting power of all classes of capital stock of any Foreign Subsidiary entitled to vote.
3.4 Definitions of Pledged Stock;
Pledged Notes; Pledged Securities and Collateral. All Stock at any time pledged or required to be pledged hereunder
is hereinafter called the “Pledged Stock;” and all Notes at any time
pledged or required to be pledged hereunder are hereinafter called the “Pledged
Notes;” all Pledged Stock and Pledged Notes together are called the “Pledged
Securities;” and the Pledged Securities, together with all proceeds
thereof, including any securities and moneys received and at the time held by
the Pledgee hereunder, are hereinafter called the “Collateral.”
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until an Event of Default shall have occurred and be continuing, the Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Pledged Securities owned by it, and to give consents, waivers or ratifications in respect thereof, provided that no vote shall be cast or any consent, waiver or ratification given or any action taken which would violate or result in breach of any covenant contained in this Agreement, the Credit Agreement, any other Loan Document or any Interest Rate Protection or Other Hedging Agreement (collectively, the “Secured Debt Agreements”), or which could reasonably be expected to have the effect of impairing the value of the Collateral or any part thereof or the position or interests of the Pledgee or any Secured Creditor. All such rights of the Pledgor to vote and to give consents, waivers and ratifications shall cease in case an Event of Default shall occur and be continuing, and Section 7 hereof shall become applicable.
(a) all other or additional stock or other securities or property (other than cash) paid or distributed by way of dividend or otherwise in respect of the Pledged Stock;
(b) all other or additional stock or other securities or property (including cash) paid or distributed in respect of the Pledged Stock by way of stock–split, spin-off, split-up, reclassification, combination of shares or similar rearrangement; and
(c) all other or additional stock or other securities or property (including cash) which may be paid in respect of the Collateral by reason of any consolidation, merger, exchange of stock, conveyance of assets, liquidation or similar corporate reorganization.
Subject to the last sentence of Section 2, the Pledgor shall not
be required at any time to pledge hereunder more than 65% of the total combined
voting power of all classes of capital stock of any Foreign Subsidiary entitled
to vote. Nothing contained in this Section
6 shall limit or restrict in any way the Pledgee’s right to receive
proceeds of the Collateral in any form in accordance with Section 3 of
this Agreement. All dividends,
distributions or other payments which are received by the Pledgor contrary to
the provisions of this Section 6 and Section 7 shall be received
in trust for the benefit of the Pledgee, shall be segregated from other
property or funds of the Pledgor and shall be forthwith paid over to the
Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
(a) to receive all amounts payable in respect of the Collateral otherwise payable to the Pledgor under Section 6 hereof;
(b) to transfer all or any part of the Collateral into the Pledgee’s name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in accordance with its terms, and take any other lawful action to collect upon any Pledged Note (including, without limitation, to make any demand for payment thereon);
(d) to vote all or any part of the Pledged Stock (whether or not transferred into the name of the Pledgee) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (the Pledgor hereby irrevocably constituting and appointing the Pledgee the proxy and attorney–in–fact of the Pledgor, with full power of substitution to do so); and
(e) to sell, assign and
deliver, or grant options to purchase, all or any part of the Collateral, or
any interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of which
are hereby waived by the Pledgor), for cash, on credit or for other property,
for immediate or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its absolute
discretion may determine, provided that at least 15 business days’
written notice of the time and place of any such sale shall be given to the
Pledgor. Pledgee shall not be obligated
to make any such sale of Collateral regardless of whether any such notice of
sale has theretofore been given. The
Pledgor hereby waives and releases to the fullest extent permitted by law any
right or equity of redemption with respect to the Collateral, whether before or
after sale hereunder, and all rights, if any, of marshalling the Collateral and
any other security for the Obligations or otherwise. At any such sale, unless prohibited by applicable law, the
Pledgee on behalf of the Secured Creditors may bid for and purchase all or any
part of the Collateral so sold free from any such right or equity of
redemption. Neither the Pledgee nor any
Secured Creditor shall be liable for failure to collect or realize upon any or
all of the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto.
(a) The cash proceeds actually received from the sale or other disposition or collection of Collateral, and any other amounts received in respect of the Collateral, the application of which is not otherwise provided for herein, shall be applied (after payment of any amounts payable to the Pledgee or the Agent pursuant to this Agreement or the Credit Agreement) in whole or in part by the Pledgee against all or any part of the Obligations in the following order: (i) first, to any fees, costs or other expenses due under the Loan Documents; (ii) next, to any interest due under the Loan Documents; (iii) next, to any principal due under the Loan Documents and amount due under Interest Rate Protection and Other Hedging Agreements; and (iv) last, to any other Obligations. Any surplus thereof which exists after payment and performance in full of the Obligations shall be promptly paid over to the Pledgor or otherwise disposed of in accordance with the UCC or other applicable law.
(b) It is understood and agreed that the Pledgor shall remain liable to the extent of any deficiency between the amount of the proceeds of the Collateral hereunder and the aggregate amount of the Obligations.
12. FURTHER ASSURANCES; POWER–OF–ATTORNEY.
(a) The Pledgor agrees that it will join with the Pledgee in executing and, at the Pledgor’s own expense, file and refile under the Uniform Commercial Code or other applicable law such financing statements, continuation statements and other documents in such offices as the Pledgee may reasonably deem necessary and wherever required by law in order to perfect and preserve the Pledgee’s security interest in the Collateral and hereby authorizes the Pledgee to file financing statements and amendments thereto relative to all or any part of the Collateral without the signature of the Pledgor where permitted by law, and agrees to do such further acts and things and to execute and deliver to the Pledgee such additional conveyances, assignments, agreements and instruments as the Pledgee may reasonably require or deem necessary to carry into effect the purposes of this Agreement or to further assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) The Pledgor hereby appoints the Pledgee as the Pledgor’s attorney-in-fact, with full authority in the place and stead of the Pledgor and in the name of the Pledgor or otherwise, from time to time after the occurrence and during the continuance of an Event of Default, in the Pledgee’s reasonable discretion to take any action and to execute any instrument required by paragraph (a) if Pledgor has failed to do so after demand by Pledgee.
(a) If there shall have occurred and be continuing an Event of Default and acceleration of the Notes then, and in every such case, upon receipt by the Pledgor from the Pledgee of a written request or requests that the Pledgor cause any registration, qualification or compliance under any Federal or state securities law or laws to be effected with respect to all or any part of the Pledged Stock, the Pledgor as soon as practicable and at its expense will use its commercially reasonable efforts to cause such registration to be effected (and be kept effective) and will use its commercially reasonable efforts to cause such qualification and compliance to be declared effected (and be kept effective) as may be so requested and as would permit or facilitate the sale and distribution of such Pledged Stock, including, without limitation, registration under the Securities Act of 1933, as then in effect (or any similar statute then in effect), appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with any other government requirements, provided that the Pledgee shall furnish to the Pledgor such information regarding the Pledgee as the Pledgor may request in writing and as shall be required in connection with any such registration, qualification or compliance. The Pledgor will cause the Pledgee to be kept advised in writing as to the progress of each such registration, qualification or compliance and as to the completion thereof, will furnish to the Pledgee such number of prospectuses, offering circulars or other documents incident thereto as the Pledgee from time to time may reasonably request, and will indemnify the Pledgee, each Secured Creditor and all others participating in the distribution of such Pledged Stock against all claims, losses, damages and liabilities caused by any untrue statement (or alleged untrue statement) of a material fact contained therein (or in any related registration statement, notification or the like) or by any omission (or alleged omission) to state therein (or in any related registration statement, notification or the like) a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same may have been caused by an untrue statement or omission based upon information furnished in writing to the Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its right to sell all or any part of the Pledged Securities pursuant to Section 7 hereof, and such Pledged Securities or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act of 1933, as then in effect, the Pledgee may, in its sole and absolute discretion, sell such Pledged Securities or part thereof by private sale in such manner and under such circumstances as the Pledgee may deem reasonably necessary or advisable in order that such sale may legally be effected without such registration. Without limiting the generality of the foregoing, in any such event the Pledgee, in its sole and absolute discretion (i) may proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Pledged Securities or part thereof shall have been filed under such Securities Act, (ii) may approach and negotiate with a single possible purchaser to effect such sale, and (iii) may restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Pledged Securities or part thereof. In the event of any such sale, the Pledgee shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price which the Pledgee, in its sole and absolute discretion, in good xxxxx xxxxx reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might be realized if the sale were deferred until after registration as aforesaid.
(a) After the Termination Date (as defined below), this Agreement and the security interest created hereby shall terminate (provided that all indemnities set forth in Section 11 hereof shall survive any such termination), and the Pledgee, at the request and expense of the Pledgor, will execute and deliver to the Pledgor all such proper instruments as Pledgor may reasonably request acknowledging the satisfaction and termination of this Agreement, and will duly assign, transfer and deliver to the Pledgor (without recourse and without any representation or warranty) such of the Collateral as has not theretofore been sold or otherwise applied or released pursuant to this Agreement, together with any monies at the time held by the Pledgee or any of its sub-agents hereunder. As used in this Agreement, “Termination Date” shall mean the date upon which the Total Revolving Loan Commitment and all Interest Rate Agreement or Other Hedging Agreements have been terminated, no Note under the Credit Agreement is outstanding (and all Loans have been repaid in full), all Letters of Credit have been terminated and all Obligations (as defined in the Credit Agreement) then owing have been paid in full.
(b) Notwithstanding anything to the contrary contained above, upon the presentment of satisfactory evidence to the Pledgee in its sole discretion that all obligations evidenced by any Pledged Note have been repaid in full, and that any payments received by the Pledgor were permitted to be received by the Pledgor pursuant to Section 6 hereof, the Pledgee shall, upon the request and at the expense of the Pledgor, duly assign, transfer and deliver to the Pledgor (without recourse and without any representation or warranty) such Pledged Note if same has not theretofore been sold or otherwise applied or released pursuant to this Agreement.
(c) In the event that any part of the Collateral is sold in connection with a sale permitted by Section 8.4 of the Credit Agreement or otherwise released at the direction of the Majority Lenders (or all Lenders if required by Section 11.1 of the Credit Agreement) and the proceeds of such sale or sales or from such release are applied in accordance with the provisions of Section 4.4 of the Credit Agreement, to the extent required to be so applied, the Pledgee, at the request and expense of the Pledgor, will duly assign, transfer and deliver to the Pledgor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or released and has not theretofore been released pursuant to this Agreement.
(d) At any time that the Pledgor desires that Collateral be released as provided in the foregoing sub-section (a), (b) or (c), as the case may be, it shall deliver to the Pledgee a certificate signed by a Responsible Officer stating that the release of the respective Collateral is permitted pursuant to such subsection (a), (b) or (c), as the case may be.
(e) The Pledgee shall have no liability whatsoever to any Secured Creditor as the result of any release of Collateral by it in accordance with this Section 18.
(a) if to the Pledgor:
BMC Industries, Inc.
Xxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy:
(000) 000-0000
with copies to:
Bankers Trust Company
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Anos
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(c) if to any Bank Creditor, either (x) to the Agent, at the address of the Agent specified in the Credit Agreement or (y) at such address as such Bank Creditor shall have specified in the Credit Agreement;
(d) if to any Other Creditor at such address as such Other Creditor shall have specified in writing to the Pledgor and the Pledgee;
or at such other address as shall have been furnished in writing by any Person described above to the party required to give notice hereunder.
21. MISCELLANEOUS. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and its successors and assigns. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings in this Agreement are for purposes of reference only and shall not limit or define the meaning hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all parties hereto.
[signature page follows]
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BMC INDUSTRIES, INC., as Pledgor |
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By: |
/s/ Xxxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Senior Vice President and Chief |
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Financial Officer |
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BANKERS TRUST COMPANY, as Pledgee |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Vice President |
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ACKNOWLEDGED AND ACCEPTED IN ITS |
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CAPACITY AS A SECURED CREDITOR: |
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U.S. BANK NATIONAL ASSOCIATION |
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By: |
/s/ Xxxxxxx X. Xxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxx |
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Title: |
Vice President |
Annex A
to
Part I. Pledged Stock
Name of Pledgor |
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Name of Issuing Corporation |
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Type of Shares |
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Number of Shares Authorized |
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Number of Shares Outstanding |
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Share Certificate Number |
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Percentage of Outstanding Shares of Capital Stock |
BMC Industries, Inc. |
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Vision-Ease Lens, Inc. (US) |
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common |
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1,000 |
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100 |
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1 |
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100% |
BMC Industries, Inc. |
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Xxxxxxx-Xxxxx Holding Company B.V. |
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common |
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100,000 |
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20,000 |
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1 |
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65% |
Part II. Pledged Note
1. Note in a stated face amount of EURO 77,000,000 made by Xxxxxxx-Xxxxx Holding Company B.V. in favor of BMC Industries, Inc.