Exhibit 10.5
SECOND AMENDED AND RESTATED
NON-RECOURSE PLEDGE AGREEMENT
AND IRREVOCABLE PROXY
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT dated as of
October 31, 2001 (this "Agreement"), by and between R.A.B. ENTERPRISES, INC., a
Delaware corporation (the "Grantor") and The Chase Manhattan Bank, a New York
banking corporation, as agent (the "Agent") for the benefit of (i) the lenders
(the "Lenders") named in Schedules 2.01(a) and 2.01(b) of the Amended and
Restated Credit Agreement dated as of May 1, 1998, by and among Millbrook
Distribution Services Inc., a Delaware corporation ("Millbrook"), The B.
Manischewitz Company, LLC, a Delaware limited liability company ("Manischewitz",
each of Millbrook and Manischewitz a "Borrower" and, collectively, the
"Borrowers"), the Lenders, the Agent and Bank of America, N.A., as co-Agent and
documentation agent (the "Co-Agent") (as amended, modified or supplemented from
time to time in accordance with its terms, the "Amended Credit Agreement") and
(ii) for itself as issuer of the Letters of Credit.
A. The Agent, the Co-Agent and the Lenders have agreed to extend Loans and
certain other financial accommodations including, without limitation, the
issuance of Letters of Credit to the Borrowers pursuant to, and subject to the
terms and conditions of, the Amended Credit Agreement. The obligation of the
Lenders to extend such Loans and of the Agent to issue Letters of Credit under
the Amended Credit Agreement is conditioned on the execution and delivery by the
Grantor of a pledge agreement in the form hereof to secure on a nonrecourse
basis the following (collectively, the "Secured Obligations"): all Obligations
(such Obligations to include, without limitation, the due and punctual payment
and performance of (a) the principal of and interest on the Loans (including the
payment of amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a), and
interest that, but for the filing of a petition in bankruptcy with respect to
the Borrowers, would accrue on such obligations, whether or not a claim is
allowed against the Borrowers for such interest in the related bankruptcy
proceeding), pursuant to the irrevocable proxy granted herein, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (b) Indebtedness at any time and from time to time under the
Letters of Credit, (c) all obligations of the Grantor at any time and from time
to time under this Pledge Agreement and (d) all other obligations of the
Borrowers at any time and from time to time under the Amended Credit Agreement
and the other Loan Documents).
B. Capitalized terms used herein and not defined herein shall have the
respective meanings assigned to such terms in the Amended Credit Agreement.
Accordingly, the Grantor and the Agent hereby agree as
follows:
1. Pledge. (a) As security for the payment in full of the Secured Obligations,
the Grantor hereby transfers, grants, bargains, sells, conveys, hypothecates,
pledges, sets over, endorses over, and delivers unto the Agent, and grants, on a
non-recourse basis, to the Agent, for its own benefit and for the benefit of the
Lenders, a security interest in (a) the shares of capital stock or equity
interests of the issuers listed in Schedule I annexed hereto next to the
Grantor's name (the "Initial Pledged Stock") and any additional shares of common
stock or equity interests of the issuers obtained in the future by the Grantor
(collectively, the Initial Pledged Stock together with all such additional
shares pledged in the future, the "Pledged Stock"), (b) all instruments of
indebtedness (whether now existing or hereinafter arising) by Millbrook or
Manischewitz which name the Grantor as payee thereunder (the "Pledged Debt") and
(c) subject to Section 5 below, all proceeds of the Pledged Stock and Pledged
Debt, including, without limitation, all cash, securities or other property at
any time and from time to time receivable or otherwise distributed in respect of
or in exchange for any of or all such Pledged Stock (the items referred to in
clauses (a) through (c) being collectively called the "Collateral"). Upon
delivery to the Agent, any securities, other than debt securities, now or
hereafter included in the Collateral including, without limitation, the Pledged
Stock (the "Pledged Securities") shall be accompanied by undated stock powers
duly executed in blank or other instruments of transfer reasonably satisfactory
to the Agent and by such other instruments and documents as the Agent may
reasonably request. Each delivery of Pledged Securities shall be accompanied by
a schedule showing a description of the 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.
(b) It is understood and agreed that it is the intention of the foregoing that
this Agreement is a non-recourse obligation and that the Agent's rights to
recover against the Grantor with respect to the Secured Obligations (including,
without limitation the Agent's reasonable fees and out-of-pocket expenses
pursuant to Section 14 hereof) shall be strictly limited to the Collateral only,
and the Agent and the Co-Agent shall have no rights or remedies against, or
recourse to, the Grantor with respect to any of the Secured Obligations.
2. Delivery of Collateral. The Grantor agrees to deliver promptly or cause to be
delivered to the Agent any and all Pledged Securities, and any and all
certificates or other instruments or documents representing any of the
Collateral (together with any necessary endorsement).
3. Representations, Warranties and Covenants. The Grantor hereby represents,
warrants and covenants to and with the Agent that:
(a) the Grantor (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Stock and the payee of the Pledged
Debt that it is pledging hereunder except for the delivery and endorsement over
of the Collateral to the Agent as contemplated hereunder, (ii) holds the
Collateral that it is pledging hereunder free and clear of all Liens of every
kind and nature, except for the Lien in favor of the Agent granted pursuant to
this Agreement, and the Pledged Stock is subject to no options to purchase or
any similar or other rights of any person, (iii) except as permitted under the
Amended Credit Agreement, will make no assignment, pledge, hypothecation or
transfer of, or create any security interest in, the Collateral, including,
without limitation, by virtue of becoming bound by any agreement which restricts
in any manner the rights of any present or future holder of any Pledged Stock
with respect thereto, and (iv) subject to Section 5 below, will cause any and
all Collateral, whether for value paid by the Grantor or otherwise, to be
forthwith deposited with the Agent and pledged or assigned hereunder;
(b) the Grantor (i) has the authority to pledge the Collateral it is pledging
hereunder in the manner hereby done or contemplated, and (ii) will defend its
title or interest thereto or therein against any and all attachments, Liens,
claims or other impediments of any nature, however arising, of all persons
whomsoever;
(c) no consent or approval of any governmental body or regulatory authority or
any securities exchange is necessary to the validity of the pledge effected
hereby;
(d) by virtue of the execution and delivery by the Grantor of this Agreement,
when the certificates, instruments or other documents representing or evidencing
the Collateral are delivered to the Agent in accordance with this Agreement, the
Agent will obtain a valid and perfected first Lien upon and security interest in
such Collateral as security for the repayment of the Secured Obligations, prior
to all other Liens thereon or therein;
(e) the pledge effected hereby is effective to vest in the Agent the rights of
the Agent in the Collateral as set forth herein; and
(f) all of the Initial Pledged Stock has been duly authorized and validly issued
and as at the date hereof, the Initial Pledged Stock constitutes the percentage
of the issued and outstanding shares of capital stock or equity interests of the
issuers set forth in Schedule I annexed hereto.
All representations, warranties and covenants of the Grantor contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement until the termination of this Agreement pursuant to Section 15 hereof.
4. Registration in Nominee Name; Denominations. Upon the occurrence and during
the continuance of an Event of Default, the Agent shall (i) have the right (in
its sole and absolute discretion with prior notice to the Grantor) to transfer
to or to register the Pledged Stock in its own name or the name of its nominee,
and (ii) at all times have the right to exchange the certificates representing
Pledged Stock for certificates of smaller or larger denominations for any
purpose consistent with this Agreement.
(a) Voting Rights; Dividends; etc. Unless and until an Event of Default shall
have occurred and be continuing:
(i) The Grantor shall be entitled to exercise any and all voting and/or
consensual rights and powers accruing to an owner of Pledged Securities or any
part thereof for any purpose not inconsistent with the terms of this Agreement
and the Amended Credit Agreement provided that such action would not adversely
affect the rights inuring to the Agent or the Lenders under this Agreement or
the Amended Credit Agreement or adversely affect the rights and remedies of the
Agent or the Lenders under this Agreement or the Amended Credit Agreement or the
ability of the Agent or the Lenders to exercise the same.
(ii) The Agent shall execute and deliver to the Grantor, or cause to be executed
and delivered to the Grantor, all such proxies, powers of attorney, and other
instruments as the Grantor may reasonably request for the purpose of enabling
the Grantor to exercise the voting and/or consensual rights and powers which
they are entitled to exercise pursuant to subparagraph (i) above.
(iii) The Grantor shall be entitled to receive and retain any and all cash
dividends paid on the Pledged Stock only to the extent that such cash dividends
are permitted by, and otherwise paid in accordance with the terms and conditions
of, the Amended Credit Agreement and applicable laws. Any and all
a. noncash dividends,
b. stock or dividends paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, and
c. instruments, securities, other distributions in property, return of capital,
capital surplus or paid-in surplus or other distributions made on or in respect
of Pledged Stock (other than dividends permitted by this Section 5(a)(iii)),
whether paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding capital stock of
the Borrowers of any Pledged Stock or received in exchange for Pledged Stock or
any part thereof, or in redemption thereof, as a result of any merger,
consolidation, acquisition or other exchange of assets to which the Borrowers is
or may be a party or otherwise shall be and become part of the Collateral, and,
if received by the Grantor, shall not be commingled by the Grantor 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 the Lenders and shall be
forthwith delivered to the Agent in the same form as so received (with any
necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default, all
rights of the Grantor to receive any dividends, stock, instruments, securities
and other distributions which the Grantor is authorized to receive pursuant to
paragraph (a)(iii) of this Section 5 shall cease, and 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 which
are received by the Grantor contrary to the provisions of this Section 5(b)
shall be received in trust for the benefit of the Agent, shall be segregated
from other property or funds of the Grantor and shall be forthwith delivered to
the Agent as Collateral in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or received by
the Agent pursuant to the provisions of this Section 5(b) shall be retained by
the Agent in an account to be established by the Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 9 hereof.
(c) Upon the occurrence and during the continuance of an Event of Default, all
rights of the Grantor to exercise the voting and consensual rights and powers
which it is entitled to exercise pursuant to Section 5(a)(i) shall cease
pursuant to the irrevocable proxy granted herein, and 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.
(d) As long as the Amended Credit Agreement remains in effect and until all of
the Secured Obligations have been paid fully and indefeasibly, any payments made
in respect of the Pledged Debt (other than interest, so long as no Default or
Event of Default has occurred and is continuing) shall be and become part of the
Collateral, and, if received by the Grantor, shall not be commingled by the
Grantor 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 the
Lenders and shall be forthwith delivered to the Agent in the same form as so
received to be held as part of the Collateral hereunder.
(e) In order to permit the Agent to exercise the voting and other consensual
rights which it may be entitled to exercise pursuant to Section 5(c) and to
receive all dividends and other distributions which it may be entitled to
receive under Section 5(a)(iii) or Section 5(b), the Grantor shall promptly
execute and deliver (or cause to be executed and delivered) to the Agent all
such proxies, dividend payment orders and other instruments as the Agent may
from time to time reasonably request.
Without limiting the effect of the foregoing, the Grantor does
hereby constitute and appoint the Agent as its proxy, effective upon the
occurrence and during the continuance of an Event of Default, to exercise all
rights, benefits, privileges and powers accruing to the Grantor, as owner of the
Pledged Securities, including, without limitation, giving or withholding
consent, calling and attending shareholders' meetings to be held from time to
time with full power to vote and act for and in the name, place and stead of the
Grantor and in the same manner, to the same extent, and with the same effect
that the Grantor would if personally present at such meetings, giving to the
Agent full power of substitution and revocation, which proxy shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Stock on the record books of the issuer thereof) by any person
(including the issuer of the Pledged Stock or any officer or agent thereof).
THIS PROXY IS IRREVOCABLE
Any proxy or proxies heretofore given by the Grantor to any
person or persons whatsoever are hereby revoked. This proxy shall continue in
full force and effect until such time as all Secured Obligations are paid and
satisfied in full in accordance with the terms of the Amended Credit Agreement.
5. Issuance of Additional Stock. The Grantor agrees that it will cause the
issuers listed in Schedule 1 annexed hereto not to issue any common stock,
equity interests or other securities convertible into common stock or equity
interests, as the case may be, whether in addition to, by stock dividend or
other distribution upon, or in substitution for, the Pledged Securities.
6. Intentionally Omitted.
7. Remedies upon Event of Default. If an Event of Default shall have occurred
and be continuing, the Agent may sell or otherwise dispose of all or any part of
the Collateral, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the Agent
shall deem appropriate. Any such sale or disposition shall be conducted and
shall conform to the standards of commercial reasonableness as provided in the
Uniform Commercial Code as in effect in the State of New York to the extent
applicable to such sale or disposition. Each such purchaser at any such sale
shall hold the property sold absolutely, free from any claim or right on the
part of the Grantor, and the Grantor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and appraisal which the Grantor
now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted.
The Agent shall give the Grantor 10 days' written notice
(which the Grantor agrees is reasonable notice within the meaning of the Uniform
Commercial Code as in effect in New York) of the Agent's intention to make any
sale of Collateral. Such notice, in the case of a public sale, shall state the
time and place for such sale and, in the case of a sale at a broker's board or
on a securities exchange, shall state the board or exchange at which such sale
is to be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall
be held at such time or times within ordinary business hours and at such place
or places as the Agent may fix and state in the notice (if any) of such sale. At
any such sale, the Collateral, or portion thereof, to be sold may be sold in one
lot as an entirety or in separate parcels, as the Agent may (in its sole and
absolute discretion) determine. The Agent shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral
so sold may be retained by the Agent until the sale price is paid by the
purchaser or purchasers thereof, but the Agent shall not incur any liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public sale made pursuant to this Section 8, the
Agent may bid for or purchase, free (to the extent permitted by applicable law)
from any right of redemption, stay or appraisal on the part of the Grantor (all
said rights being also hereby waived and released to the extent permitted by
applicable law), with respect to the Collateral or any part thereof offered for
sale and the Agent may make payment on account thereof by using any claim then
due and payable to the Agent or any Lender from the Grantor as a credit against
the purchase price, and the Agent may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to the
Grantor therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the Agent
shall be free to carry out such sale and purchase pursuant to such agreement,
and the Grantor shall not be entitled to the return of the Collateral or any
portion thereof subject thereto, notwithstanding the fact that after the Agent
shall have entered into such an agreement all Events of Default shall have been
remedied and the Secured Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Agent may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
8. Application of Proceeds of Sale. The proceeds of any sale of Collateral, as
well as any Collateral consisting of cash, shall be applied by the Agent as
follows:
FIRST, to the payment of all reasonable costs and
out-of-pocket expenses incurred by the Agent in connection with such collection
or sale or otherwise in connection with this Agreement or any of the Secured
Obligations, including, but not limited to, all court costs and the reasonable
fees and expenses of its agents and legal counsel, the repayment of all advances
made by the Agent hereunder on behalf of the Grantor or to protect and preserve
the Collateral and any other reasonable out-of-pocket costs or expenses incurred
in connection with the exercise of any right or remedy hereunder;
SECOND, to the Agent to reimburse the Agent for that portion
of the payments, if any, made by it with respect to Letters of Credit for which
a Lender, as a participant in such Letter of Credit pursuant to Section 2.18 of
the Amended Credit Agreement, failed to pay its pro rata share thereof as
required pursuant to such Section 2.18;
THIRD, to the Agent to be held as cash collateral to the
extent of undrawn amounts, if any, of outstanding Letters of Credit;
FOURTH, to the payment in full of principal and interest in
respect of any Loans outstanding (pro rata as among the Lenders in accordance
with the amounts of the Loans made by them pursuant to the Amended Credit
Agreement);
FIFTH, pro rata to the payment in full of all Secured
Obligations (other than those referred to above) owed to the Lenders (pro rata
as among the Lenders in accordance with their respective Commitments); and
SIXTH, to the Grantor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
9. Agent Appointed Attorney-in-Fact. The Grantor hereby appoints the Agent its
attorney-in-fact, effective upon the occurrence and continuance of an Event of
Default, for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Agent's name or in the name of the Grantor, to ask for, demand, xxx for,
collect, receive receipt and give acquittance for any and all moneys due or to
become due and under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to the Grantor
representing any interest or dividend, or other distribution payable in respect
of the Collateral or any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prosecute or defend any action,
claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Agent to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by the Agent. The Agent may
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Agent or
omitted to be taken with respect to the Collateral or any part thereof shall
give rise to any defense, counterclaim or offset in favor of the Grantor or to
any claim or action against the Agent or the Lenders in the absence of the gross
negligence or wilful misconduct of the Agent or the Lenders.
10. No Waiver. No failure on the part of the Agent 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 the Agent preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. The
Agent and the Lenders shall not be deemed to have waived any rights hereunder or
under any other agreement or instrument unless such waiver shall be in writing
and signed by such parties.
11. Confirmation of Security Interest. The Grantor hereby ratifies and confirms
the grant of a security interest in the Collateral contained (and as defined) in
the Pledge Agreement as of the Closing Date (as amended through the date
hereof), which security interest shall continue in full force and effect without
interruption, and the security interest granted therein, as amended and restated
hereby, shall constitute a single grant of a security interest.
12. Security Interest Absolute. All rights of the Agent hereunder, the grant of
a security interest in the Collateral and all obligations of the Grantor
hereunder, shall be absolute and unconditional irrespective of (i) any lack of
validity or enforceability of the Amended Credit Agreement, any agreement with
respect to any of the Secured Obligations or any other agreement or instrument
relating to any of the foregoing (other than as resulting from the Agent's gross
negligence or willful misconduct), (ii) any change in time, manner or place of
payment of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the
Amended Credit Agreement or any other agreement or instrument, (iii) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guarantee, for all or
any of the Secured Obligations or (iv) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the Grantor in
respect of the Secured Obligations or in respect of this Agreement.
13. Agent's Fees and Expenses. The Grantor shall be obligated to, upon demand,
pay to the Agent the amount of any and all reasonable out-of-pocket expenses,
including the reasonable fees and expenses of its counsel and of any experts or
agents which the Agent may incur in connection with (i) the custody or
preservation of (after the occurrence and continuance of an Event of Default),
or the sale of, collection from, or other realization upon, any of the
Collateral in accordance herewith, (ii) the exercise or enforcement of any of
the rights of the Agent hereunder in accordance herewith or (iii) the failure by
the Grantor to perform or observe any of the provisions hereof. In addition, the
Grantor indemnifies, and holds the Agent and the Lenders harmless from and
against any and all liability incurred by the Agent or the Lenders hereunder or
in connection herewith, unless such liability shall be due to the gross
negligence or wilful misconduct of the Agent or the Lenders, as the case may be.
Any such amounts payable as provided hereunder or thereunder shall be additional
Secured Obligations secured hereby and by the other Security Documents.
14. Termination. This Agreement shall terminate upon the earlier to occur of (a)
the date when the Grantor shall make (x) a capital contribution to the Borrowers
in the form of paid-in-capital or for capital stock or other equity of the
Borrowers on terms reasonably satisfactory to the Agent, or (y) an advance or
loan to the Borrowers on a subordinated basis to the extent permitted by the
Amended Credit Agreement (or any combination of the foregoing), in an aggregate
amount of not less than $10,000,000; and (b) the date when (w) all the Secured
Obligations have been fully and indefeasibly paid in cash, (x) the Lenders have
no further commitment to make any Loans under the Amended Credit Agreement, (y)
the Agent shall have no further obligation to issue any Letters of Credit, and
(z) the Lenders have no further obligation to extend financial accommodations
under the Rate Agreements, if applicable, at which time the Agent shall reassign
and deliver to the Grantor, or to such person or persons as the Grantor shall
designate, against receipt, such of the Collateral (if any) as shall not have
been sold or otherwise still be held by it hereunder, together with appropriate
instruments of reassignment and release; provided, however, that all indemnities
of the Grantor contained in this Agreement shall survive, and remain operative
and in full force and effect regardless of, the termination of this Agreement.
Any such reassignment shall be without recourse to or warranty by the Agent and
at the expense of the Grantor.
15. Notices. All communications and notices hereunder shall be in writing and
given as provided in the Amended Credit Agreement.
16. Further Assurances. The Grantor 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 in connection
with the administration and enforcement of this Agreement or with respect to the
Collateral or any part thereof or in order better to assure and confirm unto the
Agent its rights and remedies hereunder. The Grantor authorizes the Agent to
file financing statements under the Uniform Commercial Code describing the
Collateral (and the Agent shall promptly send copies of any such financing
statements to the Grantor).
17. Binding Agreement; Assignments. This Agreement, and the terms, covenants and
conditions hereof, shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Grantor
shall not be permitted to assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or grant any
option with respect to the Collateral, or any part thereof, or any cash or
property held by the Agent as Collateral under this Agreement, and except that
the Agent may not assign its rights hereunder, except in connection with a
resignation of the Agent and the appointment of a substitute Agent in the manner
permitted by the Amended Credit Agreement.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (EXCEPT CONFLICTS OF LAWS
PRINCIPLES THEREOF), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
19. Amended Credit Agreement. In the event of any inconsistency or conflict
between the terms and provisions of the Amended Credit Agreement and the terms
and provisions of this Agreement, or with respect to any payment provisions
which could be construed as requiring duplicative payments, the terms and
provisions of the Amended Credit Agreement shall control. Nothing herein shall
require the Grantor to make a duplicate payment if the payment is otherwise
provided for in any other Loan Document.
20. Severability. In case any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired.
21. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument. This Agreement shall be effective
when a counterpart which bears the signature of the Grantor shall have been
delivered to the Agent.
22. Section Headings. Section headings used herein are for convenience only and
are not to affect the construction of, or be taken into consideration in
interpreting, this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Pledge Agreement as of the day and year first above written.
R.A.B. ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
to Pledge Agreement
GRANTOR: R.A.B. ENTERPRISES, INC.
Percentage
of
Certificate Par Value, Number of Outstanding
Stock Issuer Type of Interests No(s). if applicable Shares/Units Interests
------------ ----------------- ----------- ------------- ------------ ---------
Millbrook Distribution Common Stock 2 $0.01 1,000 100%
Services Inc.
The B. Manischewitz Units 1 6,042.60 60.4%
Company, LLC
Description of Pledged Debt
Original
Description of Maturity Principal
Obligation Issuer Obligation Date Amount
----------------- ---------- ---- ------
Millbrook Distribution Subordinated November 1, 2005 $21,300,000
Services Inc. Promissory Note
The B. Manischewitz Subordinated November 1, 2005 $38,800,000
Company LLC Promissory Note*
