EXHIBIT 10.19
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of May 5, 1998, made by CFP Holdings, Inc.
("Pledgor") to Fleet Capital Corporation (the "Pledgee").
BACKGROUND TO THE AGREEMENT
Pledgee and each of Custom Food Products, Inc., QF Acquisition Corp.
and CFP Holdings, Inc. (each a "Borrower" and collectively, "Borrowers") are
parties to a Loan and Security Agreement dated as of May 5, 1998 (as amended,
modified and supplemented from time to time, the "Loan Agreement") pursuant to
which Pledgee agreed, subject to the terms and conditions contained therein, to
provide certain financial accommodations to Borrowers.
In order to induce Pledgee to provide the financial accommodations
described in the Loan Agreement, Pledgor has agreed to pledge and grant a
security interest to Pledgee in the Pledged Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Pledgor hereby agrees with Pledgee as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Loan Agreement
shall have such defined meanings when used herein.
SECTION 2. Pledge
Pledgor hereby pledges, assigns, hypothecates, transfers and grants a
security interest to Pledgee in all of the following (the "Pledged Collateral"):
(a) the shares of stock set forth next to Pledgor's name on Schedule A
annexed hereto and expressly made a part hereof (the "Pledged Stock"), the
certificates representing the Pledged Stock and all dividends, cash, instruments
and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Stock;
(b) all additional shares of stock of any issuer of the Pledged Stock
(the "Issuer") from time to time acquired by Pledgor in any manner, including,
without limitation, stock dividends or a distribution in connection with any
increase or reduction of capital, reclassification, merger, consolidation, sale
of assets, combination of shares, stock split, spin-off or split-off (which
shares shall be deemed to be part of the Pledged Collateral), and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares; and
(c) all options and rights, whether as an addition to, in substitution
of or in exchange for any shares of the Pledged Stock and all dividends, cash
and instruments.
SECTION 3. Indebtedness Secured
This pledge is made to secure and the Pledged Collateral is security
for the payment of (a) all the Obligations (except PMSI Loans which are secured
by the Equipment financed thereby) and (b) any and all other indebtedness,
obligations and liabilities of Borrowers to Pledgee whether now existing or
hereafter arising, direct or indirect, liquidated or unliquidated, absolute or
contingent, due or not due and whether under, pursuant to or evidenced by a
note, agreement, guaranty, other instrument or otherwise ((a) and (b)
collectively, the "Indebtedness").
SECTION 4. Delivery of Pledged Collateral
All certificates representing or evidencing the Pledged Stock shall be
delivered to and held by or on behalf of Pledgee pursuant hereto and shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to Pledgee. Pledgor hereby authorizes each
Issuer upon demand by Pledgee to deliver any certificates or instruments issued
in connection with the Pledged Collateral directly to Pledgee, in each case to
be held by Pledgee, subject to the terms hereof. After the occurrence and during
the continuation of an Event of Default, upon notice to Pledgor, Pledgee shall
have the right, at any time in its discretion and without notice to the Pledgor,
to transfer to or to register in the name of Pledgee or any of its nominees any
or all of the Pledged Stock. In addition, Pledgee shall have the right at any
time to exchange certificates or instruments representing or evidencing Pledged
Stock for certificates or instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties
Pledgor represents and warrants to Pledgee that:
(a) Pledgor has the requisite power and authority to enter into this
Agreement, to pledge the Pledged Collateral for the purposes described herein.
(b) The execution, delivery and performance by Pledgor of this
Agreement has been duly and properly authorized and does not and will not result
in any violation of any agreement, indenture or other instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule or
regulation applicable to Pledgor.
(c) This Agreement constitutes a legal, valid and binding obligation of
Pledgor enforceable in accordance with its terms except to the extent limited by
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally or by general principles of equity.
(d) Pledgor is the direct and beneficial owner of each share of the
Pledged Stock.
(e) All of the shares of the Pledged Stock have been duly authorized,
validly issued and are fully paid and nonassessable.
(f) Upon delivery of the Pledged Stock to Pledgee or an agent for
Pledgee, in the State of New York and continuous possession thereby this
Agreement creates and grants a valid first lien on and perfected security
interest in the Pledged Collateral and the proceeds thereof, subject to no prior
Lien, or to any agreement purporting to grant to any third party a Lien upon the
property or assets of Pledgor which would include the Pledged Collateral.
(g) There are no restrictions on transfer of the Pledged Stock
contained in the Certificate of Incorporation or by-laws of the Issuers or
otherwise which have not otherwise been enforceably and legally waived by the
necessary parties.
(h) None of the Pledged Stock has been issued or transferred in
violation of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such issuance or transfer may be subject.
(i) No consent, approval, authorization or other order of any Person
and no consent, authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required by
Pledgor either (i) for the pledge of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement or
(ii) for the exercise by the Pledgee of the voting or other rights provided for
in this Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such disposition
by laws affecting the offering and sale of securities generally.
(j) No notification of the pledge evidenced hereby to any Person is
required.
(k) As of the date hereof, there are no existing options, warrants,
calls or commitments of any such character whatsoever relating to any Pledged
Stock and no indebtedness or other security convertible into any Pledged Stock.
(l) The Pledged Stock constitutes one hundred percent (100%) in the
aggregate, and the indicated percentage for Pledgor, of the issued and
outstanding shares of capital stock of the Issuers thereof set forth on Schedule
A annexed hereto.
The representations and warranties set forth in this Section 5 (other
than those contained in Section (k)) shall survive the execution and delivery of
this Agreement.
SECTION 6. Covenants
Pledgor covenants that, until the Indebtedness shall be satisfied in
full and the Loan Agreement is irrevocably terminated:
(a) Pledgor will not sell, assign, transfer, convey, or otherwise
dispose of its rights in or to the Pledged Collateral or any interest therein;
nor will Pledgor create, incur or permit to exist any Lien whatsoever with
respect to any of the Pledged Collateral or the proceeds thereof other than that
created hereby.
(b) Pledgor will, at its expense, defend Pledgee's right, title and
security interest in and to the Pledged Collateral against the claims of any
Person.
(c) Pledgor shall at any time, and from time to time, upon the written
request of Pledgee, execute and deliver such further documents and do such
further acts and things as Pledgee may reasonably request in order to effect the
purposes of this Agreement including, but without limitation, delivering to
Pledgee upon the occurrence of an Event of Default irrevocable proxies in
respect of the Pledged Collateral in form satisfactory to Pledgee. Until receipt
thereof, this Agreement shall constitute Pledgor's proxy to Pledgee or its
nominee to vote all shares of Pledged Collateral then registered in Pledgor's
name.
(d) Pledgor will not consent to or approve the issuance of (i) any
additional shares of any class of capital stock of the Issuer; (ii) any
securities convertible either voluntarily by the holder thereof or automatically
upon the occurrence or nonoccurrence of any event or condition into, or any
securities exchangeable for, any such shares; or (iii) any warrants, options,
contracts or other commitments entitling any person to purchase or otherwise
acquire any such shares.
SECTION 7. Voting Rights and Dividends
In addition to Pledgee's rights and remedies set forth in Section 9
hereof, in case an Event of Default shall have occurred and has been declared by
Pledgee, Pledgee shall (i) vote the Pledged Collateral (ii) be entitled to give
consents, waivers and ratifications in respect of the Pledged Collateral
(Pledgor hereby irrevocably constituting and appointing Pledgee, with full power
of substitution, the proxy and attorney-in-fact of Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Pledged Collateral. Pledgor shall not be permitted to exercise or refrain
from exercising any voting rights or other powers if, in the reasonable judgment
of Pledgee, such action would have a material adverse effect on the value of the
Pledged Collateral or any part thereof; and, provided, further, that Pledgor
shall give at least five (5) days' written notice of the manner in which Pledgor
intends to exercise, or the reasons for refraining from exercising, any voting
rights or other powers other than with respect to any election of directors and
voting with respect to any incidental matters. After the occurrence and
continuance of an Event of Default, upon notice from Pledgee to Pledgor, all
dividends and all other distributions in respect of any of the Pledged
Collateral, whenever paid or made, shall be delivered to Pledgee to hold as
Pledged Collateral and shall, if received by Pledgor, be received in trust for
the benefit of Pledgee, be segregated from the other property or funds of
Pledgor, and be forthwith delivered to Pledgee as Pledged Collateral in the same
form as so received (with any necessary endorsement).
SECTION 8. Event of Default
An Event of Default shall be deemed to have occurred and may be
declared by Pledgee upon the happening of any of the following events:
(a) An Event of Default shall occur under the Loan Agreement
(b) Pledgor shall default in the performance of any of its obligations
under any agreement between Pledgor and Pledgee, including, without limitation,
this Agreement;
(c) Any representation, warranty, statement or covenant made or
furnished to Pledgee by or on behalf of Pledgor proves to have been false in any
material respect when made or furnished or is breached, violated or not complied
with; or
(d) Pledgor shall (i) apply for, consent to, or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or other fiduciary of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of creditors, (iii)
commence a voluntary case under any state or federal bankruptcy laws (as now or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a
petition seeking to take advantage of any other law providing for the relief of
debtors, (vi) acquiesce to, or fail to have dismissed, within thirty (30) days,
any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) take any action for the purpose of effecting any of the
foregoing.
SECTION 9. Remedies
In case an Event of Default shall have occurred and be declared by
Pledgee, Pledgee may:
(a) Transfer any or all of the Pledged Collateral into its name, or
into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the Pledged
Collateral including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any shares
of the Pledged Collateral as if it were the absolute owner thereof, including,
but without limitation, the right to exchange, at its discretion, any or all of
the Pledged Collateral upon the merger, consolidation, reorganization,
recapitalization or other readjustment of the Issuer thereof, or upon the
exercise by the Issuer of any right, privilege or option pertaining to any of
the Pledged Collateral, and, in connection therewith, to deposit and deliver any
and all of the Pledged Collateral with any committee, depository, transfer
agent, registrar or other designated agent upon such terms and conditions as it
may determine, all without liability except to account for property actually
received by it;
(c) Subject to any requirement of applicable law, sell, assign and
deliver the whole or, from time to time, any part of the Pledged Collateral at
the time held by Pledgee, at any private sale or at public auction, with or
without demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise (all of which are hereby waived, except such
notice as is required by applicable law and cannot be waived), for cash or
credit or for other property for immediate or future delivery, and for such
price or prices and on such terms as Pledgee in its sole discretion may
determine, or as may be required by applicable law.
Pledgor hereby waives and releases any and all right or equity of
redemption, whether before or after sale hereunder. At any such sale, unless
prohibited by applicable law, Pledgee may bid for and purchase the whole or any
part of the Pledged Collateral so sold free from any such right or equity of
redemption. All moneys received by Pledgee hereunder whether upon sale of the
Pledged Collateral or any part thereof or otherwise shall be held by Pledgee and
applied by it as provided in Section 12 hereof. No failure or delay on the part
of Pledgee in exercising any rights hereunder shall operate as a waiver of any
such rights nor shall any single or partial exercise of any such rights preclude
any other or future exercise thereof or the exercise of any other rights
hereunder. Pledgee shall have no duty as to the collection or protection of the
Pledged Collateral or any income thereon nor any duty as to preservation of any
rights pertaining thereto, except to apply the funds in accordance with the
requirements of Section 12 hereof. Pledgee may exercise its rights with respect
to property held hereunder without resort to other security for or sources of
reimbursement for the Indebtedness. In addition to the foregoing, Pledgee shall
have all of the rights, remedies and privileges of a secured party under the
Uniform Commercial Code of New York regardless of the jurisdiction in which
enforcement hereof is sought.
SECTION 10. Registration
If Pledgee shall exercise its right to sell all or any part of the Pledged
Collateral, and if, in the opinion of counsel for Pledgee, it is necessary to
have the Pledged Collateral being sold registered under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), (i) Pledgor will use
its best efforts to cause the Issuer to execute and deliver, and to cause the
directors and officers of the Issuer to execute and deliver, all at Pledgor's
expense, all such instruments and documents and to do or cause to be done all
such other acts and things as may be
necessary to register the Pledged Collateral being sold under the provisions of
the Securities Act; (ii) Pledgor shall use commercially reasonable efforts to
cause any such registration statement to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Collateral being sold and to make all amendments thereto and to
related documents which, in the opinion of Pledgee or its counsel, are necessary
or advisable, all in conformity with the requirements of the Securities Act and
the rules and regulations of the Securities and Exchange Commission applicable
thereto; (iii) Pledgor shall also use commercially reasonable efforts to cause
the Issuer to comply with the provisions of the "Blue Sky" law of any
jurisdiction which Pledgee shall designate in connection with any sale
hereunder; and to cause the Issuer to make available to its security holders, as
soon as practicable, an earnings statement (which need not be audited) covering
a period of at least twelve months but not more than eighteen months, beginning
with the first month after the effective date of any such registration
statement, which earnings statement will satisfy the provisions of Section 11(a)
of the Securities Act; and (iv) Pledgor acknowledges that a breach of any of the
covenants contained in this Section may cause irreparable injury to Pledgee,
that Pledgee will have no adequate remedy at law with respect to such breach
and, as a consequence, such covenants of Pledgor shall be specifically
enforceable against Pledgor.
SECTION 11. Private Sale
Notwithstanding anything contained in Section 10, Pledgor recognizes
that Pledgee may be unable to effect (or to do so only after delay which would
adversely affect the value that might be realized from the Pledged Collateral) a
public sale of all or part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act, and 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 Pledged Collateral for
their own account, for investment and not with a view to the distribution or
resale thereof. Pledgor agrees that any such private sale may be at prices and
on terms less favorable to the seller than if sold at public sales and that such
private sales shall be deemed to have been made in a commercially reasonable
manner. Pledgor agrees that Pledgee has no obligation to delay sale of any
Pledged Collateral for the period of time necessary to permit the Issuer to
register the Pledged Collateral for public sale under the Securities Act.
SECTION 12. Proceeds of Sale
The proceeds of any collection, recovery, receipt, appropriation,
realization or sale of the Pledged Collateral shall be applied by Pledgee as
follows:
(a) First, to the payment of all costs, expenses and charges of
Pledgee, as such, or the reimbursement of Pledgee for the prior payment of such
costs, expenses and charges incurred in connection with the care and safekeeping
of any of the Pledged Collateral (including, without limitation, the expenses of
any sale or other proceeding, the expenses of any taking, reasonable attorneys'
fees and expenses, court costs, any other expenses incurred or expenditures or
advances made by Pledgee in the protection, enforcement or exercise of its
rights, powers or remedies hereunder) with interest on any such reimbursement at
the rate prescribed in the Loan Agreement as the applicable Default Rate for
Base Rate Loans from the date of payment.
(b) Second, to the payment of the Indebtedness, in whole or in part, in
such order as Pledgee may elect, whether such Indebtedness is then due or not
due.
(c) Third, to such Persons as required by applicable law including,
without
limitation, Section 9-504(1)(c) of the Uniform Commercial Code.
(d) Fourth, to the extent of any surplus thereafter remaining, to
Pledgor or as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery, receipt,
appropriation, realization or sale are insufficient to satisfy the Indebtedness,
Pledgor shall be liable for the deficiency together with interest thereon at the
rate prescribed in the Loan Agreement as the Default Rate for Base Rate Loans
plus the reasonable fees of any attorneys employed by Pledgee to collect such
deficiency.
Pledgee, in its sole and absolute discretion, with or without notice to
Pledgor, may deposit any proceeds of any collection, recovery, receipt,
appropriation or sale of the Pledged Collateral in a non-interest bearing cash
collateral deposit account to be maintained as security for the Indebtedness.
SECTION 13. Information
Pledgor will promptly give or cause to be given written notice to
Pledgee of any notices or other documents received by it with respect to Pledged
Collateral registered in the name of Pledgor.
SECTION 14. Termination
This Agreement shall terminate and Pledgor shall be entitled to the
return, at Pledgor's expense, of such of the Pledged Collateral as has not
theretofore been sold or otherwise applied pursuant to this Agreement, together
with any moneys at any time held by Pledgee (pro-rata to Pledgor), upon payment
in full of the Indebtedness and irrevocable termination of the Loan Agreement.
SECTION 15. Concerning Pledgee
The recitals of fact herein shall be taken as statements of Pledgor for
which Pledgee assumes no responsibility. Pledgee makes no representation to
anyone as to the value of the Pledged Collateral or any part thereof or as to
the validity or adequacy of the security afforded or intended to be afforded
thereby or as to the validity of this Agreement. Pledgee shall be protected in
relying upon any notice, consent, request or other paper or document believed by
it to be genuine and correct and to have been signed by a proper person. The
permissive rights of Pledgee hereunder shall not be construed as duties of
Pledgee. Pledgee shall be under no obligation to take any action toward the
enforcement of this Agreement or rights or remedies in respect of any of the
Pledged Collateral. Pledgee shall not be personally liable for any action taken
or omitted by it in good faith and reasonably believed by it to be within the
power or discretion conferred upon it by this Agreement.
SECTION 16. Notices
Any notice or request hereunder may be given to Pledgor or to Pledgee
at their respective addresses set forth below or at such other address as may
hereafter be specified in a notice designated as a notice of change of address
under this Section. Any notice or request hereunder shall be given by (a) hand
delivery, (b) registered or certified mail, return receipt requested, (c) telex
or telegram, subsequently confirmed by registered or certified mail, or (d)
telex to the number set out below (or such other number as may hereafter be
specified in a notice
designated as a notice of change of address) with telephone communication to a
duly authorized officer of the recipient confirming its receipt as subsequently
confirmed by registered or certified mail. Any notice or other communication
required or permitted pursuant to this Agreement shall be deemed given (a) when
personally delivered to any officer of the party to whom it is addressed, (b) on
the earlier of actual receipt thereof or three (3) days following posting
thereof by certified or registered mail, postage prepaid, or (c) upon actual
receipt thereof when sent by a recognized overnight delivery service or (d) upon
actual receipt thereof when sent by telecopier to the number set forth below
with telephone communication confirming receipt and subsequently confirmed by
registered, certified or overnight mail to the address set forth below, in each
case addressed to each party at its address set forth below or at such other
address as has been furnished in writing by a party to the other by like notice:
(A) If to Pledgee, at: Fleet Capital Corporation
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Northeast Loan
Administration Manager
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(B) If to Pledgor, at: CFP Holdings, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: X'Xxxxxxxx Graev & Karabell
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SECTION 17. Governing Law.
This Agreement and all rights and obligations hereunder shall be
governed by and construed in accordance with the laws of the State of New York
applied to contracts to be performed wholly within the State of New York.
SECTION 18. Waivers.
(a) PLEDGOR AND PLEDGEE EACH HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHTS
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR
IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OTHER
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATING HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE; AND PLEDGOR AND
PLEDGEE EACH HEREBY AGREE AND CONSENT THAT ANY SUCH ACTIONS OR PROCEEDINGS SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER PARTY MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL
BY JURY.
(b) Pledgee may at any time and from time to time, either before or
after the maturity thereof, without notice to or further consent of Pledgor,
extend the time of payment of, exchange or surrender any collateral for, renew
or extend any of the Indebtedness or increase or decrease the interest rate
thereon, and may also make any agreement with Borrowers or with any other party
to or person liable on any of the Indebtedness, or interested therein, for the
extension, renewal, payment, compromise, discharge or release thereof, in whole
or in part, or for any modification of the terms thereof or of any agreement
between Pledgee and Borrowers or any such other party or person, or make any
election of rights Pledgee may deem desirable under the United States Bankruptcy
Code, as amended, or any other federal or state bankruptcy, reorganization,
moratorium or insolvency law relating to or affecting the enforcement of
creditors' rights generally without in any way impairing or affecting this
Agreement.
(c) Pledgor waives any rights to interpose any defense, counterclaim or
offset of any nature and description which it may have or which may exist
between and among Pledgee, Borrowers and/or Pledgor with respect to Pledgor's
obligations under this Agreement, or which Borrowers may assert on the
underlying debt, including but not limited to failure of consideration, breach
of warranty, fraud, payment (other than cash payment in full of the
Indebtedness), statute of frauds, bankruptcy, infancy, statute of limitations,
accord and satisfaction, and usury.
(d) Pledgor further waives (i) notice of the making of any loans or
extensions of credit by Pledgee to Borrowers, and of all notices and demands of
any kind to which Pledgor may be entitled, including, without limitation, notice
of adverse change in any Borrower's financial condition or of any other fact
which might materially increase the risk of Pledgor; and (ii) presentment to or
demand of payment from anyone whomsoever liable upon any of the Indebtedness,
protest, notices of presentment, non-payment or protest and notice of any sale
of collateral security or any default of any sort.
(e) Until the Indebtedness is paid in full, Pledgor expressly waives
any and all rights of subrogation, reimbursement, indemnity, exoneration,
contribution or any other claim which Pledgor may now or hereafter have against
Borrowers or any other person directly or contingently liable for the
Indebtedness, or against or with respect to any Borrower's property (including,
without limitation, property collateralizing Pledgor's obligations to Pledgee),
arising from the existence or performance of this Agreement. In furtherance, and
not in limitation, of the preceding waiver, Pledgor agrees that any payment to
Pledgee by Pledgor pursuant to this Agreement shall be deemed a contribution to
the capital of Borrowers or any other obligated party and any such payment shall
not constitute Pledgor a creditor of any such party.
SECTION 19. Litigation.
PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE
OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR ALL
PURPOSES IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY PLEDGOR
AGAINST PLEDGEE INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT
ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. PLEDGOR
FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS
(INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO
EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF
THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. PLEDGOR WAIVES ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY
DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON
CONVENIENS.
SECTION 20. No Waiver; Cumulative Remedies.
No failure on the part of Pledgee to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any such right, power or
remedy by Pledgee preclude any other or further exercise thereof or the exercise
of any right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
SECTION 21. Severability.
In case any security interest or other right of Pledgee shall be held
to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other security interest or other right,
privilege or power granted under this Agreement.
SECTION 22. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which when taken together shall
constitute one and the same instrument.
SECTION 23. Miscellaneous
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing, signed by
Pledgee and Pledgor. The provisions of this Agreement shall be binding upon the
successors and assigns of Pledgor. The term "Pledgee", as used herein, shall
include any successor or assign of Pledgee at the time entitled to the pledged
interest in the Pledged Collateral. The headings in this Agreement are for
purposes of reference only and shall not limit or define the meaning hereof.
SECTION 24. Captions
The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as part of
this Agreement.
SECTION 25. Recapture
Anything in this Agreement to the contrary notwithstanding, if Pledgee
receives any payment or payments on account of the Indebtedness, which payment
or payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver, or any other party under the United States Bankruptcy Code, as
amended, or any other federal or state bankruptcy, reorganization, moratorium or
insolvency law relating to or affecting the enforcement of creditors' rights
generally, common law or equitable doctrine, then to the extent of any sum not
finally retained by Pledgee, Pledgor's obligations to Pledgee shall be
reinstated and this Agreement shall remain in full force and effect (or be
reinstated) until payment shall have been made to Pledgee, which payment shall
be due on demand.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the ___ day of May, 1998.
CFP HOLDINGS, INC.
By:______________________________________
Name: Xxxx Ek
Title: Vice President and CFO
FLEET CAPITAL CORPORATION
By:______________________________________
Name:
Title:
SCHEDULE A
PLEDGED STOCK
ISSUER: CFP HOLDINGS, INC.
Issuer Class of Stock Stock Certificate Par Value Number of
Number Shares
Custom Food Products, Common 1 .01 100
Inc.
QF Acquisition Corp. Class A Common Voting A9 .01 1,960
Class B Common Voting B2 .01 140
