EXHIBIT 10.4
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "AGREEMENT") dated as of June 21, 2005 by and
between:
XXXXX XXXXX, INC., a corporation organized under the laws of the
state of Delaware having a place of business at 00000 XX 00xx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 (hereinafter, the "PLEDGOR"); and
BANK OF AMERICA, N.A., a national banking association, as agent (in
such capacity, the "AGENT" for the Lenders (as defined in the Loan Agreement as
defined herein), in consideration of the mutual covenants contained herein and
benefits to be derived herefrom.
WITNESSETH:
Reference is made to the Loan and Security Agreement dated as of
even date herewith (as amended, modified supplemented or restated from time to
time, the "LOAN AGREEMENT"), by, among others, (i) Pledgor, as Borrower (in such
capacity, the "BORROWER") (ii) the Guarantors named therein (individually, a
"Guarantor" and collectively, the "GUARANTORS"), (iii) the Lenders named
therein, and (iv) Bank of America, N.A., as Agent for the Lenders, pursuant to
which the Borrower and the Guarantors have granted a security interest in the
Collateral (as defined in the Loan Agreement) to secure the Obligations (as
defined in the Loan Agreement).
The Lenders have agreed to make Loans to the Borrower, and the
Letter of Credit Issuers have agreed to issue Letters of Credit for the account
of the Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Loan Agreement. The obligation of the Lenders to make Loans
and of the Letter of Credit Issuers to issue Letters of Credit are each
conditioned on, among other things, the execution and delivery by the Pledgor of
an agreement in the form hereof to secure the Obligations.
Accordingly, the Pledgor and the Agent, on behalf of itself and each
other Lender (and each of their respective successors and assigns) hereby agree
as follows:
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SECTION 1
DEFINITIONS
1.1 Generally. Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Loan Agreement.
1.2 Definitions of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
"BLUE SKY LAWS" shall have the meaning assigned to such term in
Section 7.2 of this Agreement.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor
Agreement dated as of even date herewith by and among the Agent, the Term Loan
Agent, the Pledgor, and the Guarantors, as amended, modified, supplemented or
restated from time to time.
"INVESTMENT PROPERTY" shall have the meaning given that term in the
UCC.
"LOAN AGREEMENT" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"PLEDGED COLLATERAL" shall have the meaning assigned to such term in
Section 2.5 of this Agreement.
"PLEDGED SECURITIES" shall have the meaning assigned to such term in
Section 2.1 of this Agreement.
"SECURITIES ACT" shall have the meaning assigned to such term in
Section 7.2 of this Agreement.
"TERM LOAN AGENT" shall mean JPMorgan Chase Bank, N.A., as
administrative agent for the lenders party from time to time to that certain
Term Loan Agreement dated as of even date herewith by and among the Term Agent,
the Pledgor, and the Guarantors.
"TERM LOAN FACILITY" shall mean the term loan facility established
pursuant to that certain Term Loan Agreement dated as of even date herewith by
and among the Term Agent, the Pledgor, and the Guarantors.
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SECTION 2
PLEDGE
As security for the payment and performance, as the case may be, in
full of the Obligations, the Pledgor hereby transfers, grants, bargains, sells,
conveys, hypothecates, pledges, sets over and delivers unto the Agent, its
successors and assigns, and hereby grants to the Agent, its successors and
assigns, for the ratable benefit of the Agent and the Lenders, a security
interest in all of the Pledgor's right, title and interest in, to and under.
2.1 the shares of capital stock and other ownership interests owned
by the Pledgor and listed on Schedule I hereto, and any shares of capital stock
or other equity interest of any issuer listed on Schedule I hereto obtained in
the future by the Pledgor, and the stock certificates or other securities
representing all such shares or equity interests; provided that with respect to
each Foreign Subsidiary whose capital stock is pledged hereunder by the Pledgor,
the Pledgor has pledged stock representing 65% of the outstanding shares of
voting stock of such Foreign Subsidiary (or such lesser percentage as is owned
by Pledgor) (the "PLEDGED SECURITIES");
2.2 all other Investment Property that may be delivered to, and held
by, the Agent pursuant to the terms hereof;
2.3 subject to Section 6, all dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed or
distributable, in respect of, or in exchange for, the Pledged Securities
referred to in clauses 2.1 and 2.2 above;
2.4 subject to Section 6, all rights and privileges of the Pledgor
with respect to the Pledged Securities and other Investment Property referred to
in clauses 2.1, 2.2, and 2.3 above; and
2.5 all proceeds of any of the foregoing (the items referred to in
clauses 2.1 through 2.5 being collectively referred to as the "PLEDGED
COLLATERAL").
TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Agent, its successors and assigns, for the benefit of the
Agent and the Lenders, until the Obligations have been indefeasibly paid and
performed in full in cash, the Lenders have no further commitment to lend, the
outstanding Letters of Credit have been reduced to zero or fully cash
collateralized in a manner satisfactory to the Letter of Credit Issuers and the
Agent, and the Letter of Credit Issuers have no further obligation to issue
Letters of Credit under the Loan Agreement; subject, however, to the terms,
covenants and conditions hereinafter set forth.
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SECTION 3
DELIVERY OF THE PLEDGED COLLATERAL
3.1 On or before the Closing Date, the Pledgor shall deliver or
cause to be delivered to the Term Loan Agent, as agent and bailee for the Agent
in accordance with the Intercreditor Agreement, any and all Pledged Securities,
any and all Investment Property, and any and all certificates or other
instruments or documents representing the Pledged Collateral, and stock powers
duly executed in blank or other instruments of transfer satisfactory to the
Agent and such other instruments of assignment and documents as the Agent may
reasonably request.
3.2 The Pledgor hereby irrevocably authorizes the Agent at any time
and from time to time to file in any appropriate filing office, wherever
located, any financing statement that contains any information required by the
UCC of the applicable jurisdiction for the sufficiency or filing office
acceptance of any financing statement. The Pledgor also authorizes the Agent to
file a copy of this Agreement in lieu of a financing statement. The Pledgor
shall provide the Agent with any information the Agent shall reasonably request
in connection with any of the foregoing.
3.3 In the event that Pledgor shall acquire any additional Pledged
Securities, by purchase or otherwise, then Pledgor shall forthwith deliver such
additional stock certificates and stock powers duly executed in blank or other
instruments of transfer satisfactory to the Agent and by such other instruments
and documents as the Agent may reasonably request, to the Agent, unless the Term
Loan Facility remains outstanding, in which case the Pledgor shall deliver such
additional stock certificates and stock powers to the Term Loan Agent, as agent
and bailee for the Agent in accordance with the Intercreditor Agreement, and not
in its individual capacity, pursuant to the terms of the Intercreditor
Agreement. Upon each such delivery of Pledged Securities, Pledgor shall deliver
to Agent a schedule describing the Pledged Securities theretofore and then being
pledged hereunder, which schedule shall be attached hereto as Schedule I and
made a part hereof. Each schedule so delivered shall supersede any prior
schedules so delivered.
3.4 In the event that the Term Loan Facility is terminated and the
obligations under the Term Loan Facility are paid in full prior to the
termination of this Agreement and the Loan Agreement, the Pledgor shall cause
the Term Loan Agent to deliver to the Agent all Pledged Collateral held by the
Term Loan Agent pursuant to this Section 3 at the time of such termination of
the Term Loan Facility.
SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Pledgor hereby represents, warrants and covenants, as to itself
and the Pledged Collateral pledged by it hereunder, to and with the Agent that:
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4.1 the Pledged Securities represent that percentage of the issued
and outstanding shares of each class of the capital stock or other equity
interest of each issuer with respect thereto as set forth on Schedule I;
4.2 except for the security interest granted hereunder, and except
for the security interest granted to the Term Loan Agent, the Pledgor (i) is and
will at all times continue to be the direct owner, beneficially and of record,
of the Pledged Securities indicated on Schedule I, (ii) holds the Pledged
Collateral free and clear of all Liens, other than Permitted Liens permitted
pursuant to Section 6.4 of the Loan Agreement and Liens in favor of the Agent
and the Term Loan Agent, which Permitted Liens have priority over the Liens in
favor of the Agent only to the extent permitted under Section 6.1(c) of the Loan
Agreement, and (iii) subject to Section 6, will cause any and all Pledged
Collateral to be forthwith deposited with the Agent (or the Term Loan Agent, as
applicable) and pledged or assigned hereunder;
4.3 the Pledgor will not consent to or approve the issuance of (a)
any additional shares of any class of capital stock of any issuer of the Pledged
Securities, or the issuance of any membership or other ownership interest in any
such Person, (b) any securities convertible voluntarily by the holder thereof or
automatically upon the occurrence or nonoccurrence of any event or condition
into, or exchangeable for, any such shares or interests, or (c) any warrants,
options, rights, or other commitments entitling any Person to purchase or
otherwise acquire any such shares or interests;
4.4 the Pledgor (i) has the power and authority to pledge the
Pledged Collateral in the manner hereby done or contemplated and (ii) will
defend its title or interest thereto or therein against any and all Liens (other
than Permitted Liens having priority over the Liens of the Agent pursuant to
Section 6.1(c) of the Loan Agreement and the Lien created by this Agreement or
the other Loan Documents), however arising, of all Persons whomsoever;
4.5 no consent of any other Person (including stockholders or
creditors of the Pledgor), and no consent or approval of any governmental
authority or any securities exchange, was or is necessary to the validity of the
pledge effected hereby or to the disposition of the Pledged Collateral upon an
Event of Default in accordance with the terms of this Agreement and the Loan
Agreement;
4.6 by virtue of the execution and delivery by the-Pledgor of this
Agreement, and the delivery by the Pledgor to the Term Loan Agent and bailee for
the Agent in accordance with the Intercreditor Agreement, of the stock
certificates or other certificates or documents representing or evidencing the
Pledged Collateral in accordance with the terms of this Agreement, the Agent
will obtain a valid and perfected first lien upon, and security interest in, the
Pledged Collateral as security for the payment and performance of the
Obligations;
4.7 the pledge effected hereby is effective to vest in the Agent, on
behalf of the Lenders, subject to the Intercreditor Agreement, the rights of the
Pledgor in the Pledged Collateral as set forth herein;
4.8 all the Pledged Securities have been duly authorized and validly
issued and are fully paid and nonassessable;
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4.9 all information set forth herein relating to the Pledged
Collateral is accurate and complete in all material respects as of the date
hereof; and
4.10 none of the Pledged Securities constitutes margin stock, as
defined in Regulation U of the Board of Governors of the Federal Reserve System.
SECTION 5
REGISTRATION IN NOMINEE NAME; COPIES OF NOTICES
Upon the occurrence and during the continuance of an Event of
Default, subject to the Intercreditor Agreement, the Agent, on behalf of the
Lenders, shall have the right (in its reasonable discretion) to hold the Pledged
Securities in its own names as pledgee, the name of its nominee (as pledgee or
as sub-agent) or the name of the Pledgor, endorsed or assigned in blank or in
favor of the Agent. The Pledgor will promptly give to the Agent copies of any
notices or other communications received by it with respect to Pledged
Securities registered in the name of the Pledgor.
SECTION 6
VOTING RIGHTS; DIVIDENDS AND INTEREST, ETC.
6.1 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/or
other consensual rights and powers inuring to an owner of the Pledged Securities
or any part thereof to the extent, and only to the extent, that such rights are
exercised for any purpose consistent with, and not otherwise in violation of,
the terms and conditions of this Agreement, the Loan Agreement, the other Loan
Documents and applicable law; provided , however, that the Pledgor will not be
entitled to exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged Securities or the
rights and remedies of the Agent or the Lenders under this Agreement, the Loan
Agreement or any other Loan Document or the ability of the Agent and the Lenders
to exercise the same, subject to the Intercreditor Agreement.
6.2 Unless and until a Combined Availability Threshold Event or an
Event of Default shall have occurred and be continuing, the Pledgor shall be
entitled to receive and retain any and all cash dividends paid on the Pledged
Collateral to the extent, and only to the extent, that such cash dividends are
permitted by, and otherwise paid in accordance with, the terms and conditions of
this Agreement, the Loan Agreement, the other Loan Documents and applicable law.
All non-cash dividends, and all dividends paid or payable in cash or otherwise
in connection with a partial or total liquidation or dissolution, return of
capital, capital surplus or paid-in surplus, and all other distributions (other
than dividends and distributions referred to in the preceding sentence) made on
or in respect of the Pledged Collateral, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or reclassification
of the outstanding capital stock or partnership interests of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger, amalgamation,
arrangement, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of the
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Pledged Collateral, and, if received by the Pledgor, to the extent required to
be paid to the Agent pursuant to the terms of the Loan Agreement or the other
Loan Documents, shall not be commingled by the Pledgor with any of its other
funds or property but shall be held separate and apart therefrom, shall be held
in trust for the benefit of the Agent and shall be forthwith delivered to the
Agent in the same form as so received (with any necessary endorsement).
6.3 Upon the occurrence and during the continuance of a Combined
Availability Threshold Event or an Event of Default until a Cash Control
Termination Event shall have occurred, all rights of the Pledgor to dividends
that the Pledgor is authorized to receive pursuant to Section 6.2 above shall
cease, and subject to the Intercreditor Agreement, all such rights shall
thereupon become vested in the Agent, which shall have the sole and exclusive
right and authority to receive and retain such dividends. All dividends received
by the Pledgor contrary to the provisions of this Section 6.3 shall be held in
trust for the benefit of the Agent, shall be segregated from other property or
funds of the Pledgor and shall be forthwith delivered to the Agent in accordance
with the provisions of Section 6.8 of the Loan Agreement in the same form as so
received (with any necessary endorsement), subject to the provisions of the
Intercreditor Agreement. Any and all money and other property paid over to or
received by the Agent pursuant to the provisions of this Section 6.3 shall be
applied in accordance with the provisions of Section 4.5 of the Loan Agreement.
6.4 Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to 6.1 shall cease, and subject
to the Intercreditor Agreement, all such rights shall thereupon become vested in
the Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; provided that the Agent
shall have the right from time to time following and during the continuance of
an Event of Default to permit the Pledgor to exercise such rights, and the
Pledgor hereby agrees that it shall not take any action in the exercise of such
rights that would be adverse to the interest of the Agent. After all Events of
Default have been cured or waived in writing by the Agent, the Pledgor will have
the right to exercise the voting and consensual rights and powers that it would
otherwise be entitled to exercise pursuant to the terms of 6.1.
SECTION 7
REMEDIES UPON DEFAULT
7.1 Upon the occurrence of an Event of Default, it is agreed that
the Agent shall have in any jurisdiction in which enforcement hereof is sought,
in addition to all other rights and remedies provided under the Loan Agreement,
which rights and remedies are hereby incorporated by reference herein, the
rights and remedies of a secured party under the UCC or other applicable law.
7.2 The Pledgor recognizes that (a) the Agent may be unable to
effect a public sale of all or a part of the Pledged Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. Section
77, (as amended and in effect, the "SECURITIES ACT") or the Securities laws of
various states (the "BLUE SKY LAWS"), but 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
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things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof, (b) that private
sales so made may be at prices and upon other terms less favorable to the seller
than if the Pledged Collateral were sold at public sales, (c) that neither the
Agent nor any Lender has any obligation to delay sale of any of the Pledged
Collateral for the period of time necessary to permit the Pledged Collateral to
be registered for public sale under the Securities Act or the Blue Sky Laws, and
(d) that to the extent permitted by law, private sales made under the foregoing
circumstances shall be deemed to have been made in a commercially reasonable
manner.
7.3 To the extent permitted by applicable law, the Pledgor hereby
waives all rights of redemption, stay, valuation and appraisal which the Pledgor
now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted.
SECTION 8
FURTHER ASSURANCES
The Pledgor agrees to do such further acts and things, and to
execute and deliver such additional conveyances, assignments, agreements and
instruments, as the Agent may at any time reasonably request, subject to the
Intercreditor Agreement, in connection with the administration and enforcement
of this Agreement or with respect to the Pledged Collateral or any part thereof
or in order better to assure and confirm unto the Agent its rights and remedies
hereunder.
SECTION 9
INTENT
This Agreement is being executed and delivered by the Pledgor for
the purpose of confirming the grant of the security interest of the Agent in the
Pledged Collateral. It is intended that the security interest granted pursuant
to this Agreement is granted as a supplement to, and not in limitation of, the
security interest granted to the Agent, for the ratable benefit of the Agent and
the Lenders, under the Loan Agreement. Subject to the Intercreditor Agreement,
all provisions of the Loan Agreement with respect to the Collateral shall apply
to the Pledged Collateral, and the Agent shall have the same rights, remedies,
powers, privileges and discretions with respect to the security interests
created in the Pledged Collateral as in all other Collateral. In the event of a
conflict between this Agreement and the Loan Agreement, the terms of this
Agreement shall control with respect to the Pledged Collateral and the terms of
the Loan Agreement shall control with respect to all other Collateral.
SECTION 10
GOVERNING LAW
THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
THE CONFLICT OF LAWS PROVISIONS PROVIDED THAT
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PERFECTION ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY GIVE EFFECT TO
APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9 OF THE UCC) OF
THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the patties hereto have duly executed this
Agreement wider seal as of the day and year first above written.
PLEDGOR: XXXXX XXXXX, INC.
By:
------------------------------------------
Name:
Title:
AGENT: BANK OF AMERICA, N.A., as Agent.
By:
-------------------------------------------
Name:
Title:
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SCHEDULE I
None of the issuers has any authorized, issued or outstanding
membership interests of any class or any commitments to issue any membership
interests of any class or any securities convertible into or exchangeable for
any membership interests of any class except as otherwise stated in this
Schedule I.
PERCENTAGE OF
TYPE OF INTEREST MEMBERSHIP INTERESTS
ISSUER RECORD OWNER HELD BY OWNER HELD BY OWNER
1. Xxxxx Xxxxx Xxxxx Xxxxx, Inc. Membership Interests 100%
Information
Technology, LLC
2. Xxxxx Xxxxx Services, Xxxxx Xxxxx, Inc. Membership Interests 100%
LLC
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None of the issuers has any authorized, issued or outstanding shares
of its capital stock of any class or any commitments to issue any shares of its
capital stock of any class or any securities convertible into or exchangeable
for any shares of its capital stock of any class except as otherwise stated in
this Schedule I.
PERCENTAGE
NUMBER OF NUMBER OF OF SHARES
SHARES HELD ISSUED AND HELD BY
RECORD CLASS OF BY RECORD OUTSTANDING RECORD
ISSUER OWNER SHARES OWNER SHARES OWNER
Distribution Fulfillment Services, Inc. Xxxxx Xxxxx, Inc. Common Stock 1,000 1,000 100%
(DFS)
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