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Exhibit 10.6
CUSTODY, PLEDGE AND SECURITY AGREEMENT
CUSTODY, PLEDGE AND SECURITY AGREEMENT, dated as of January 1, 1998 (the
"Pledge Agreement"), made by and among CCIR OF TEXAS CORP., a Texas corporation
(the "Pledgor"), THE HUNTINGTON NATIONAL BANK (the "Custodian"), and BANK ONE,
ARIZONA, NA, a national banking association (the "Bank"), pursuant to that Loan
Agreement, dated as of July 25, 1997, by and between CONTINENTAL CIRCUITS CORP.,
a Delaware corporation (together with the Pledgor and any Co-Borrower as defined
in said Loan Agreement, the "Borrower") and the Bank (hereinafter, as the same
may from time to time be amended or supplemented, called the "Reimbursement
Agreement");
W I T N E S S E T H:
WHEREAS, CAPITAL INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer") has
issued $6,000,000 of its Adjustable Rate Industrial Development Revenue Bonds
(CCIR of Texas Corp. Project) Series 1998 (the "Bonds") under a Trust Indenture,
dated as of January 1, 1998 (the "Indenture"), between the Issuer and THE
HUNTINGTON NATIONAL BANK, as trustee (the "Trustee"); and
WHEREAS, the Indenture requires the purchase of the Bonds from the holders
thereof under certain circumstances as set forth in the Indenture; and
WHEREAS, the Pledgor has requested the Bank to issue a Bond Letter of
Credit (the "Letter of Credit") under the Reimbursement Agreement which may be
drawn upon, inter alia, to pay the purchase price of the Bonds; and
WHEREAS, it is a condition precedent to the Bank's issuance of the Letter
of Credit that the Pledgor shall execute and deliver this Pledge Agreement to
the Bank;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Bank to issue the Letter of Credit under the Reimbursement Agreement and for
other good and valuable consideration receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, defined terms shall
have the meanings assigned to them in the Reimbursement Agreement, and the rules
of interpretation set forth in the Reimbursement Agreement shall apply to this
Pledge Agreement.
2. Pledge and Security Agreement. As collateral security for the prompt
and complete payment when due of all amounts due from the Borrower to the Bank
under the Reimbursement Agreement, the Pledgor pledges, hypothecates, assigns,
transfers and grants to the Bank a first priority lien on and a first perfected
security interest in all its right, title and interest to the following:
(a) Such Bonds as may be from time to time be purchased with money,
drawn by the Trustee under the Letter of Credit. Such Bonds are sometimes
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hereinafter referred to as "Pledged Bonds." The Pledgor shall cause the
Trustee to deliver all certificated Pledged Bonds to the Custodian as soon
as practicable following purchase of such Bonds with the proceeds of a
drawing under the Letter of Credit and as to all other Pledged Bonds shall
note the pledge of such Bonds on its books and records and send a
confirmation of such book entry to the Bank.
(b) The Bond Funds together with all moneys and claims for moneys
due or to become due or payable thereon or with respect therefor, all
shares, deposits, investments and interest of every kind of the
undersigned evidenced by any of the foregoing, and all proceeds thereof
(collectively, the "Bond Monies"). The "Bond Funds" shall mean all funds,
accounts and subaccounts established under the Indenture in which monies
shall be held by the Trustee from time to time for the benefit of Pledgor,
including without limitation the Bond Fund, the Project Fund and the
Remarketing Reimbursement Fund.
3. Payments on the Bonds. If, while this Pledge Agreement is in effect,
the Pledgor shall become entitled to receive or shall receive any payment of
principal, premium, interest or proceeds of sale or remarketing in respect of
the Pledged Bonds, such payment shall be subject to this Pledge Agreement, and
the Pledgor hereby irrevocably directs the Trustee to make any such payments
directly to the Custodian and, in the event any such payments are received by
the Pledgor, the Pledgor agrees to accept the same as the Bank's agent and to
hold the same in trust on behalf of the Bank and to deliver the same promptly to
the Custodian. All sums of money so paid in respect of the Pledged Bonds which
are received by the Pledgor and paid to the Custodian and all such amounts which
shall be paid directly to the Custodian by the Trustee shall be paid by the
Custodian to the Bank and shall be credited against the corresponding
reimbursement obligation of the Pledgor under the Reimbursement Agreement.
4. Collateral. All property at any time pledged to the Bank hereunder and
all income therefrom and proceeds thereof are herein collectively sometimes
called the "Collateral."
5. Release of Pledged Bonds. If a payment is made by or on behalf of the
Pledgor in respect of its reimbursement obligation under the Reimbursement
Agreement and if the other conditions respecting payment of accrued interest as
set forth in the Reimbursement Agreement are met, the Bank agrees upon receipt
of such payment to release from the lien of this Pledge Agreement and cause the
Custodian to release to the Pledgor or the Trustee or to such other party as
shall make payment to the Bank, as the case may be, Pledged Bonds in the
principal amount so paid; provided, however, that if the payment is less than
the minimum denomination of Bonds then available under the Indenture, Pledged
Bonds shall be released only at such time as the cumulative amount of payments
made under the Reimbursement Agreement, and for which no Pledged Bonds have been
released under this paragraph, equals the minimum denomination of Bonds then
available. Custodian agrees not to release any Pledged Bonds until the Trustee
and the Custodian shall have received from the Bank a Notice of Reinstatement
for Remarketed Pledged Bonds, which the Bank agrees to send in accordance with
the provisions of the Letter of Credit.
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6. Rights of the Bank. The Bank shall not be liable for failure to collect
or realize upon the Collateral or any collateral security or guarantee therefor,
or any part thereof, or for any delay in so doing, nor shall it be under any
obligation to take any action whatsoever with regard thereto. If an Event of
Default has occurred and is continuing, the Bank may thereafter without notice,
exercise all rights, privileges or options pertaining to any Collateral as if it
were the holder and absolute owner thereof, upon such terms and conditions as it
may determine, all without liability except to account for property actually
received by it, but the Bank shall have no duty to exercise any of the aforesaid
rights, privileges or options and shall not be responsible for any failure to do
so or delay in so doing.
7. Remedies.
(a) In the event that any portion of any amounts due to the Bank
under the Reimbursement Agreement has been declared due and payable, the
Bank without demand of performance or other demand or advertisement to or
upon the Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived) may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give an option or options to
purchase, contract to sell or otherwise dispose of and deliver said
Collateral, or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange, broker's board or at any of the
Bank's offices or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk, with the right
of the Bank upon any such sale or sales, public or private, to purchase
the whole or any part of said Collateral so sold, free of any right or
equity of redemption in the Pledgor, which right or equity is hereby
expressly waived or released. Bank agrees to notify Pledgor promptly as to
any such proposed action, provided that the failure to give such notice
shall not affect the validity of such action.
(b) The net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs
and expenses of every kind incurred therein or incidental to the care,
safekeeping or otherwise of any and all of the Collateral or in any way
relating to the rights of the Bank hereunder, including reasonable
attorneys' fees and legal expenses, shall be applied first to the
satisfaction of the Pledgor's obligations to the Bank under the
Reimbursement Agreement, the Pledgor remaining liable for any deficiency
remaining unpaid after such application, and only after so paying over
such net proceeds and after the payment by the Bank of any other amount
required by any provision of law, need the Bank account for the surplus,
if any, to the Pledgor.
(c) The Pledgor agrees that the Bank need not give more than ten
(10) days' notice of the time and place of any public sale or of the time
after which a private sale or other intended disposition is to take place
and that such notice is reasonable notification of such matters. No
notification need be given to the
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Pledgor if it has signed after default a statement denouncing or modifying
any right to notification of sale or other intended disposition.
(d) In addition to the rights and remedies granted to them in this
Pledge Agreement and in any other instrument or agreement securing,
evidencing or relating to any of the Pledgor's obligations, the Bank shall
have all the rights and remedies of a secured party under the Uniform
Commercial Code of the State of Arizona. The Pledgor shall be liable for
the deficiency if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay all amounts to which the Bank is
entitled, and the fees of any attorneys employed by the Bank to collect
such deficiency.
8. Representations of the Pledgor. The Pledgor represents that:
(a) on the date of delivery to the Bank, or to the Tender Agent (as
defined in the Indenture) acting on behalf of the Bank, of any Pledged
Bonds, neither the Issuer, the Tender Agent nor the Trustee will have any
right, title or interest in and to the Bonds except pursuant to the
Indenture and the Loan Agreement;
(b) it has, and on the date of delivery to the Bank of any Pledged
Bonds will have, full power, authority and legal right to pledge all of
its right, title and interest in and to such Pledged Bonds pursuant to
this Pledge Agreement;
(c) this Pledge Agreement has been duly authorized, executed and
delivered by the Pledgor and constitutes a legal, valid and binding
obligation of the Pledgor enforceable in accordance with its terms except
as enforcement hereto may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditor's
rights generally or by general principles of equity;
(d) no consent of any other party (including, without limitation,
partners or creditors of the Pledgor) and, to the knowledge of the
Pledgor, no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration
with, any governmental authority, domestic or foreign, is required to be
obtained by the Pledgor in connection with the execution, delivery or
performance of this Pledge Agreement; and
(e) the execution, delivery and performance of this Pledge Agreement
will not, to the knowledge of the Pledgor, violate any provision of any
applicable law or regulation or of any order, judgment, writ, award or
decree of any court, arbitrator or governmental authority, domestic or
foreign, or of the organizational documents of the Pledgor, or of any
securities issued by the Pledgor, or of any mortgage, indenture, lease,
contract or other agreement, instrument or undertaking to which the
Pledgor is a party or which purports to be binding upon the Pledgor or
upon any of its assets and will not result in the creation or imposition
of any
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lien, charge or encumbrance on or security interest in any of the assets
of the Pledgor except as contemplated by this Pledge Agreement.
9. Covenants of the Pledgor. The Pledgor covenants and agrees that:
(a) it will defend the Bank's right, title and security interest in
and to the Pledged Bonds and the proceeds thereof against the claims and
demands of all persons whomsoever;
(b) without the prior written consent of the Bank, it will not sell,
assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, the Collateral, nor will it create, incur or permit to
exist any pledge, lien, mortgage, hypothecation, security interest,
charge, option or any other encumbrance with respect to any of the
Collateral, or any interest therein, or any proceeds thereof, except for
the lien and security interest provided for by this Pledge Agreement; and
(c) it hereby irrevocably authorizes and empowers Bank at any time,
in its own name or in the name of Pledgor, to demand, apply for, withdraw,
receipt and give acquittance for any and all of the Bond Monies and to
exercise any and all rights and privileges and receive all benefits
accorded by said Bond Monies, and to execute any an all instruments
required therefor. Any obligor under the terms of said Bond Monies is
specifically authorized and directed, on demand of Bank to pay and deliver
all Bond Monies to said Bank.
10. Sale of Pledged Bonds.
(a) The Pledgor recognizes that the Bank has no obligation to effect
a public sale of any or all of the Pledged Bonds and by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and
applicable state securities laws, the Pledgor may be compelled to resort
to one or more private sales thereof to a restricted group of purchasers
who will be obliged to agree, among other things, to acquire such
securities for their own account for investment and not with a view to the
distribution or resale thereof. The Pledgor acknowledges and agrees that
any such private sale may result in prices and other terms less favorable
to the seller than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner.
(b) The Pledgor further agrees to do or cause to be done all such
other acts and things as may be reasonably requested by the Bank to make
such sale or sales of any portion or all of the Pledged Bonds valid and
binding and in compliance with any and all applicable laws, regulations,
orders, writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental
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instrumentalities, domestic or foreign, having jurisdiction over any such
sale or sales, all at the Pledgor's expense.
11. Further Assurances. The Pledgor agrees that at any time and from
time to time upon the written request of the Bank, the Pledgor will execute and
deliver such further documents and do such further acts and things as the Bank
may reasonably request in order to effect the purposes of this Pledge Agreement.
12. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. No Waiver; Cumulative Remedies. The Bank shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Bank, and then only to the extent therein set forth. A waiver by the Bank of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Bank would otherwise have on any subsequent
occasion. No failure to exercise nor any delay in exercising on the part of the
Bank, any right, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
14. Amendments; Applicable Law. None of the terms or provisions of this
Pledge Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Bank and the Pledgor. This Pledge
Agreement shall be governed by, and be construed and interpreted in accordance
with, the laws of the State of Arizona and applicable federal law.
15. Term. This Pledge Agreement shall remain in full force and effect
for so long as the Letter of Credit is in effect or any amount is owed to the
Bank under the Reimbursement Agreement.
16. Expenses. The Pledgor shall pay to the Bank its reasonable expenses
(including reasonable fees and expenses of counsel) of, or incident to, any
actual or attempted sale or other disposition of, or any exchange, enforcement
(whether through negotiations, legal proceedings or otherwise), collection,
compromise or settlement of or with respect to all or any of the Collateral, by
litigation or otherwise. The Pledgor shall reimburse the Bank on demand for all
reasonable costs and expenses incurred in connection with the negotiation,
preparation, execution and administration of this Pledge Agreement, including,
without limitation, any reasonable fees or expenses (including reasonable fees
and expenses of counsel to the Custodian) paid by the Bank to the Custodian for
its services in connection with this Pledge Agreement.
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17. Notices. All notices and other communications provided for hereunder
shall be in writing (including telegraphic communication) and mailed,
telecopied, telexed, telegraphed or delivered to the parties to the telex or
telecopier number or address (as the case may be) specified for the intended
recipient below, or to such other number or address as such recipient may have
last specified by notice to the other party. All such notices and communications
shall, when mailed, telecopied, telexed or telegraphed, be effective when
deposited in the mails or sent by telecopy or telex or delivered to the
telegraph company, respectively, addressed as follows:
Pledgor: CCIR OF TEXAS CORP.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Custodian: THE HUNTINGTON NATIONAL BANK
Huntington Center, HC 1112
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Corporate Trust Department
Bank: BANK ONE, ARIZONA, XX
Xxxx Xxxxxx Xxx 00
Xxxxxxx, Xxxxxxx 00000
Attention: Commercial Banking AZ1-1178
18. Appointment of Custodian.
(a) The Bank hereby appoints the Custodian as its agent to hold any
Pledged Bonds which the Pledgor shall deliver or cause to be delivered to
the Custodian. The Custodian hereby accepts such appointment and agrees
that it will hold the Pledged Bonds until otherwise directed in writing by
the Bank.
(b) The Bank hereby appoints the Custodian as its agent to hold the
Bond Monies, if any. The Custodian hereby accepts such appointment and
agrees that it will hold the Bond Monies until otherwise directed in
writing by the Bank.
(c) The Custodian shall not have any liability for any matter
arising hereunder except to the extent that it may arise from the
Custodian's own willful misconduct or gross negligence. The Pledgor agrees
to indemnify the Custodian and hold it harmless against any loss,
liability or expense incurred without gross negligence or bad faith on its
part arising out of or in connection with any of its duties as Custodian
hereunder, including the reasonable costs and expenses of defending itself
from any claim or liability in connection with the exercise or performance
of any of its powers or duties in such capacity. The provisions of this
paragraph shall survive the termination of this Pledge Agreement.
19. Assignment.
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(a) This Pledge Agreement shall be binding upon and inure to the
benefit of the Custodian, the Bank and the Pledgor and their respective
successors and assigns; provided, however, that the Pledgor may not assign
any of its rights or obligations under this Pledge Agreement without the
prior written consent of the Bank.
(b) If the Bank or the Custodian assigns or otherwise transfers any
of its rights and obligations hereunder, each reference in this Pledge
Agreement to the Bank or the Custodian, as the case may be, shall be
deemed to be a reference to the assignee or transferee of the Bank or the
Custodian, as the case may be, were assigned and transferred to the extent
of their respective interests.
20. Counterparts. This Pledge Agreement may be executed in counterparts,
and such counterparts taken together shall be deemed to constitute one and the
same agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge
Agreement to be duly executed and delivered by its duly authorized officers on
the day and year first above written.
CCIR OF TEXAS CORP., a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Its: Vice President and Secretary
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PLEDGOR
BANK ONE, ARIZONA, NA, a national banking
association
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Its: Vice President
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BANK
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THE HUNTINGTON NATIONAL BANK
By: /s/ Candada Xxxxx
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Its: Vice President
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CUSTODIAN
ACKNOWLEDGED AND AGREED UPON by the undersigned as to provisions of the
above Pledge Agreement relating to the undersigned in its capacity as Trustee
under the Indenture.
THE HUNTINGTON NATIONAL BANK
By: /s/ Candada Xxxxx
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Its: Vice President
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