EXECUTION COPY
To: THE CIT GROUP/BUSINESS CREDIT, INC.,
as Administrative Agent for the benefit of
the Beneficiaries (as defined herein)
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
-
May 31, 2001
-
PLEDGE AGREEMENT
Ladies and Gentlemen:
Reference is made to the Financing Agreement of even date herewith (as
amended from time to time, herein called the "Financing Agreement") among The
CIT Group/Business Credit, Inc., as, inter alia, administrative agent for the
lenders (in that capacity, the "Administrative Agent"), Citicorp USA, Inc., as
Syndication Agent, Citibank N.A., as issuer of Letters of Credit as provided
therein, the Arrangers named therein, the Lenders (as defined therein), and the
following joint and several obligors: Harvard Industries, Inc., Xxxxxxx-Xxxxxx,
Inc., Harvard Transportation Corporation, Xxxxxxx-Xxxxxx Greeneville, Inc.,
Pottstown Precision Casting, Inc., Harvard Industries Risk Management, Inc.,
Xxxxxxx-Xxxxxx Toledo, Inc., Xxxxxx Automotive, Inc., Xxxxx-Albion Corporation,
and KWCI Liquidating Corporation (each individually a "Company" and
collectively, the "Companies") and Trim Trends Canada Limited and 000000 Xxxxxx
Inc., as Guarantors (each individually a "Guarantor" and collectively, the
"Guarantors").
The capitalized terms used and not otherwise defined herein have the
meanings given to them in the Financing Agreement. In referring to "you," this
Pledge Agreement means the Administrative Agent, for the benefit of each of the
Lenders, the Issuing Bank and the Agents (each a "Beneficiary"). The Schedule of
Definitions hereto identifies where certain terms are defined in this Pledge
Agreement.
This Pledge Agreement is executed as an inducement to the Beneficiaries
to make loans or advances to the Companies, issue Letters of Credit for the
Companies' account and otherwise to extend credit or financial accommodations to
the Companies and to enter into and continue a financing arrangement with the
Companies, and is executed in consideration of the Beneficiaries doing or having
done any of the foregoing. Each of the undersigned (herein each, a "Pledgor")
agrees that any of the foregoing shall be deemed to have been done or extended
by the Beneficiaries in consideration of and in reliance upon the execution of
this Pledge Agreement, but nothing herein shall obligate any of the
Beneficiaries to do any of the foregoing.
The pledge, and the other rights and remedies provided to you in this
Pledge Agreement shall be in addition to, and shall not be deemed to affect,
prejudice modify or limit any other rights, collateral, agreements or security
which you may now or hereafter hold whether granted or given to you by any
Pledgor, any Company or Guarantor or by any other Person. In addition, nothing
in this Pledge Agreement shall be deemed to affect, prejudice, modify or limit
any of your agreements with the Beneficiaries and/or the Junior Lien Lender, as
applicable, under the Financing Agreement or the Intercreditor Agreement as to
what rights and remedies that you, the Beneficiaries and the Junior Lien Lender
may have, the order in which you or they elect to exercise them or as to the
conditions to their exercise.
Section 1. Pledge. (a) Each Pledgor hereby pledges, assigns, transfers,
delivers and sets over to you all of its right, title and interest in and to (i)
the securities listed on the attached Schedule 1, issued as indicated on said
Schedule 1 (the "Stock") and (ii) the promissory notes and other instruments
listed on the attached Schedule 1, issued as indicated on said Schedule 1 (the
"Notes") owned by such Pledgor, as identified in said Schedule 1 (the Stock and
the Notes, collectively, the "Securities"), as security for the full and
indefeasible payment and performance when due of all now existing and future
Obligations, in the case of any Pledgor that is a Company, or Guaranty
Obligations, in the case of any Pledgor that is a Guarantor, whether arising
pursuant to the Financing Agreement, any of the other Loan Documents (including
this Pledge Agreement) or otherwise (as applicable to each case, the "Pledgor
Obligations").
(b) The foregoing by each Pledgor includes all right, title and
interest in and to and a continuing lien upon and security interest in, all of
the Securities together with any and all rights, coupons, warrants or rights to
subscribe, options, dividends, liquidating dividends, splits, dividends paid in
stock, dividends paid in Securities, new or reclassified securities, cash,
distributions or any other property which such Pledgor is or may hereafter
become entitled to receive on account of such Securities, any and all
increments, substitutions, additions or replacements thereof, and all securities
accounts to which any or all of the foregoing may at any time be credited and
any and all proceeds of the foregoing (all collectively hereinafter referred to
as the "Pledged Collateral" and, in relation to any Pledgor, the Pledged
Collateral of such Pledgor).
Section 2. Events of Default and Certain Remedies. (a) Each Pledgor
shall be in default under this Pledge Agreement upon the occurrence of any Event
of Default under the Financing Agreement. If any Event of Default or if a
Default consisting of a failure of payment of a kind referred to in Paragraph
12.1(g) of the Financing Agreement (a "Payment Default") occurs and is
continuing, then on ten (10) days' prior notice to the Pledgors, without the
curing of such default within such time, you may, without demand of performance,
advertisement or notice of intention to sell, or of the time or place of sale,
and without notice to redeem, or any other notice or demand whatsoever to or
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upon any Pledgor (all and each of which demands, advertisements and/or notices
are hereby expressly waived by each Pledgor), forthwith or at any time or times
thereafter:
(1) transfer to and/or register in your name, or the name of your
nominee, any or all of the Pledged Collateral and/or collect,
receive, appropriate and realize upon said Pledged Collateral;
(2) sell, assign, transfer and deliver the whole or any part of
the Pledged Collateral then held by you under this Pledge
Agreement or subject to this Pledge Agreement in one or more
parcels, at public or private sale or sales, through any
securities exchange, broker, dealer or over-the-counter
market, electronic trading facility or other securities
market, at your office or elsewhere, on such terms and
conditions, and at such prices as you may deem advisable, for
cash, upon credit, or for future delivery, with the right on
your part, or that of any Beneficiary, to become the purchaser
thereof at any such sale or sales, free and clear of any right
to equity of redemption (which right or equity is hereby
expressly waived and released); and
(3) in addition to any and all other rights and remedies provided
for herein or otherwise available to you, you shall have all
the rights and remedies of a secured party under the UCC.
(b) Each Pledgor agrees that any notice of sale, disposition, or other
intended action by you that may be required by applicable law, if sent through
Harvard to any Pledgor (with a copy to the other Pledgors, care of Harvard), at
least ten (10) days prior to such action shall constitute reasonable notice to
that Pledgor. Prior to exercising your rights contained herein you may in your
discretion forward the various coupons coming due on any Securities covered
hereby directly to the relevant Pledgor for collection.
(c) Unless and until an Event of Default shall have occurred and
be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of
Pledged Collateral or any part thereof for any purpose; provided,
however, that such Pledgor will not be entitled to exercise any such
right if the result thereof could reasonably be expected to adversely
affect the rights inuring to a holder of the Pledged Collateral, your
rights and remedies or the rights and remedies of any Beneficiary under
this Pledge Agreement or the Financing Agreement or any other Loan
Document or your ability or that of any Beneficiary to exercise the
same.
(ii) You agrees to execute and deliver to each Pledgor, or
cause to be executed and delivered to each Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
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request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant
to subparagraph (i) above and to receive the cash dividends it is
entitled to receive pursuant to subparagraph (iii) below.
(iii) Each Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the Pledged
Collateral to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Financing
Agreement, the other Loan Documents and applicable laws. All noncash
dividends, interest and principal, and all dividends, interest and
principal 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
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 of the issuer of any
Pledged Collateral or received in exchange for Pledged Collateral or
any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of
the Collateral, and, if received by any Pledgor, shall not be
commingled by such Pledgor with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for
the your benefit and that of the Beneficiaries and shall be forthwith
delivered to you by such Pledgor in the same form as so received (with
any necessary endorsement or instrument of transfer or assignment
executed in blank).
(d) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (c)(iii) above shall
cease, and all such rights shall thereupon become vested in you, and you shall
have the sole and exclusive right and authority to receive and retain such
dividends, interest or principal. All dividends, interest or principal received
by a Pledgor contrary to the provisions of this Section 2 shall be held in trust
for your benefit and that of the Beneficiaries, shall be segregated from other
property or funds of such Pledgor and shall be forthwith delivered to you by
such Pledgor upon demand in the same form as so received (with any necessary
endorsement or instrument of transfer or assignment executed in blank). Any and
all money and other property paid over to or received by you pursuant to the
provisions of this paragraph (d) shall be retained by you in an account to be
established by you upon receipt of such money or other property and may be
applied in accordance with the provisions of Section 3 but you shall not be
required to segregate such money or other property from other Collateral or have
any trust or other fiduciary responsibility in respect thereof.
(e) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (c)(i) of this
Section 2, and your obligations under paragraph (c)(ii) of this Section 2, shall
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cease, and all such rights shall thereupon become vested in you, and you shall
have the sole and exclusive right and authority to exercise such voting and
consensual rights and powers, in accordance with the terms of the Financing
Agreement.
Section 3. Application of Proceeds. The proceeds of any disposition
hereunder shall be applied, first, to all costs and expenses, including, but not
limited to, reasonable attorneys' fees and expenses and court costs, incurred by
you in connection with such disposition and your exercise of your rights and
remedies hereunder, under the Financing Agreement or otherwise under applicable
law, and, next, to the payment in whole or in part, in such order as you may
elect, of the Pledgor Obligations, whether then due or not due, in accordance
with the terms of the Financing Agreement and the Intercreditor Agreement. You
agree to handle any remaining balance as you and the Junior Lien Lender have
agreed in the Intercreditor Agreement and, only if [there is any balance
remaining under your control] after all such applications will you be required
to pay it over to the Pledgor or to any Person entitled thereto or as a court of
competent jurisdiction may direct, upon proper demand being made therefor. If
the Pledgor Obligations are not fully and finally satisfied through this
application of proceeds and the application of the proceeds of other Collateral
as contemplated in the other Loan Documents and the Intercreditor Agreement,
each of the Pledgors shall continue to be fully liable for the deficiency.
Section 4. Irrevocable Proxy. Further, each Pledgor hereby expressly
grants to you the right and irrevocable proxy, in the circumstances contemplated
in Section 2(a), to vote or exercise any other consensual rights a holder of
Securities may have for any purposes as you in your sole discretion deem
advisable, and to otherwise exercise as to such Pledged Collateral, all rights,
powers and remedies as the owner thereof. Each Pledgor that is organized and
existing under the laws of the State of Delaware, in contemplation of Section
212(b) of the General Corporation Law of the State of Delaware, hereby agrees
that the irrevocable proxy granted to you in this Section 4 may be voted and
acted upon by you for a period of five (5) years from the effective date of this
Pledge Agreement.
Section 5. Power of Attorney. Each Pledgor hereby confirms that power
of attorney that it has granted to you in Paragraph 11.1 of Section 11 of the
Financing Agreement and that you, or any Person or agent you may designate, may
as the Pledgor's attorney-in-fact thereunder, at the Pledgors' cost and expense,
exercise all of the powers there granted to you with respect to the Pledged
Collateral as well as each of those set forth below:
(a) To perform or cause the performance of any Obligation of the
Pledgor hereunder;
(b) To liquidate any Pledged Collateral and otherwise to deal in or
with the Pledged Collateral or the proceeds or avails thereof, as fully and
effectually as if you were the absolute owner thereof, and to apply the proceeds
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thereof to payment of the Pledgor Obligations, notwithstanding the fact that
such liquidation may give rise to penalties;
(c) To transmit to any Persons indebted on any Pledged Collateral
notice of your interest therein and to notify any Persons indebted on any
Pledged Collateral to make payment directly to you for the Pledgors' account and
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Pledged Collateral;
(d) To enter into any extension, reorganization, deposit, merger or
consolidation agreement or any other agreement relating to or affecting the
Pledged Collateral and, in connection therewith, to deposit or surrender control
of the Pledged Collateral and to accept other property in exchange for the
Pledged Collateral, subject otherwise to this Pledge Agreement; and
(e) to transfer to yourself or to your nominee any or all of the
Pledged Collateral or to register same in your name on the books of the company
or entity issuing same; to receive cash dividends, coupons and income thereon
and to hold the same as additional collateral security hereunder, or to apply it
against the Pledgor Obligations.
Notwithstanding anything hereinabove contained to the contrary except
as otherwise provided in the Financing Agreement, the powers set forth above may
only be exercised after the occurrence and during the continuance of an Event of
Default and until such time as such Event of Default is waived in writing by the
Required Lenders. Each Pledgor hereby ratifies and approves all of your acts
taken pursuant to the foregoing appointment, other than your acts constituting
gross negligence or willful misconduct, and you, as each Pledgor's
attorney-in-fact, will not be liable for any acts of commission or omission, or
for any error of judgment or mistake of fact or law, other than those that
result from your gross negligence or willful misconduct, and any actions taken
pursuant to this Section 5 are understood as not to limit the right of set off
exercisable by you as provided in the Financing Agreement. Notwithstanding
anything to the contrary elsewhere in this Pledge Agreement, if the Obligations
are declared or automatically become immediately due and payable pursuant to
Paragraph 12.2 of the Financing Agreement, in connection with an Event of
Default, your rights to exercise the powers granted to you in the power of
attorney included in the Financing Agreement and this Pledge Agreement, shall
continue and shall not cease to be effective until the full, final and
indefeasible payment of all the Obligations, regardless of whether such Event of
Default is subsequently remedied.
Section 6. Ownership of Pledged Collateral. The Securities
pledged by it is owned by that Pledgor absolutely, and is free and clear of all
liens and encumbrances except for the pledge in your favor and except for
Permitted Encumbrances (as defined in the Financing Agreement); that the only
liens or encumbrances on any such Securities owned by that Pledgor are those
identified in Schedule 2 attached hereto; that there are no restrictions upon
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the pledge or transfer of any of the Securities, except for restrictions
expressly provided for herein and restrictions on transfer under applicable
federal, state and foreign securities laws; that the relevant Pledgor has full
right to pledge and transfer the same in accordance with the terms and
conditions of this Pledge Agreement, free of all encumbrances (except said
Permitted Encumbrances) and without the consent of any other Person and without
the need to notify the issuing company and/or obtain their consent to the
pledge; and that said Securities are not subject to any assessment.
Section 7. Covenants.
7.1 Registration. You acknowledge that the Securities have not
been, and other Pledged Collateral may not be, registered under applicable
federal, state or foreign securities laws, and such Securities and other pledged
Collateral may not be transferred by you in the absence of registration or an
exemption from registration.
7.2 Stock Powers/Further Assurances. Each Pledgor hereby
agrees at your request to execute all necessary stock powers and instruments of
assignment in blank, to have the signatures on said powers guaranteed, to
execute a letter or other form confirming that the Pledged Collateral is not
being pledged to you for the purpose of providing or obtaining any credit for
purchasing or trading in margin stock, and to execute any further documents or
papers whatsoever, including, without limitation, financing statements and
amendments, renewals and continuations thereof, and perform such further acts as
you may reasonably require in order to carry out the intent and purpose of this
Pledge Agreement. Each Pledgor agrees to defend its title to its portion of the
Pledged Collateral at its own cost and expense, and to pay, satisfy and
discharge any and all assessments, liens or charges now or thereafter placed
upon the Pledged Collateral.
7.3 Change of Location/Name. Each Pledgor agrees that it shall
not (i) change the location of its chief executive office/chief place of
business from its address specified for notices herein, or (ii) change its name
(including the adoption of any new trade name), jurisdiction of incorporation,
identity or corporate structure, unless, in any such case, it shall have
provided at least thirty (30) days' prior written notice to you of any such
change and until such filings and other measures as may be required under
applicable law to continue uninterrupted the perfected lien created hereunder on
and in the Pledged Collateral shall have been taken, and until you shall have
received such opinions of counsel with respect thereto as it may have reasonably
requested.
7.4 Prohibition on Issuance of New Stock. Each Pledgor agrees
that it shall not permit or cause the Obligors whose stock constitutes the
Pledged Stock to issue any additional capital stock, and except in the case of
the Class B Common Stock of Harvard Industries Risk Management, Inc., shall at
all times own 100% of the issued and outstanding capital stock of such Obligors.
Section 8. Indemnification. Each Pledgor hereby, acknowledges that this
Pledge Agreement is a Loan Document, and , as such, such Pledgor is subject,
with respect hereto, to the indemnification of Paragraph 9.3 of Section 9 of the
Financing Agreement.
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Section 9. Miscellaneous
9.1 Amendments. This Pledge Agreement may not be modified
except in writing, and no course of dealing between you and any of the Pledgors
shall be effective to change or modify this Pledge Agreement.
9.2 Counterparts. This Pledge Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original and such counterparts shall together constitute but one and the same
document.
9.3 Severability. Each Pledgor and (by their acceptance of the
benefits of this Pledge Agreement) the Administrative Agent and each of the
Lenders hereby agrees that if any provision hereof or of any other agreement
made in connection herewith is held to be illegal or unenforceable, such
provision shall be fully severable, and the remaining provisions of the
applicable agreement shall remain in full force and effect and shall not be
affected by such provision's severance. Furthermore, in lieu of any such
provision, there shall be added automatically as a part of the applicable
agreement a legal and enforceable provision as similar in terms to the severed
provision as may be possible.
9.4 Notices. Any notice or other communication required
hereunder shall be given in accordance with the terms of the Financing
Agreement.
9.5 Survival. The representations, covenants and agreements of
the Pledgors herein contained shall survive the date hereof, and shall be deemed
to have been remade on and as of the date on which any additional Pledgor
Obligations are created.
9.6 Private Sale. Each Pledgor recognizes that you may be
unable to effect a public sale of any or all of the Pledged Collateral, by
reason of certain prohibitions contained in the Securities Act of 1933 and
applicable state securities law or otherwise, and may be compelled to resort to
one or more private sales thereof to one or more restricted groups of purchasers
which will be obligated 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. Each Pledgor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable to you than if such sale
were a public sale and agrees that such circumstances shall not, in and of
themselves, result in a determination that such sale was not made in a
commercially reasonable manner. You shall be under no obligation to delay a sale
of any of the Pledged Collateral for the period of time necessary to permit the
issuer to register such securities for public sale under the Securities Act of
1933, or under applicable state securities laws, even if the issuer agrees to do
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so. Each Pledgor agrees that any sale of the Pledged Collateral conducted in
conformity with reasonable commercial practices of banks, commercial finance
companies, insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable.
9.7 Waiver of Jury Trial. NONE OF THE PLEDGORS, BENEFICIARIES
AND NO SUCCESSOR, ASSIGN OR PERSONAL REPRESENTATIVE OF ANY OF THEM SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION
PROCEDURE INVOLVING ANY OF THE PLEDGORS OR THE BENEFICIARIES (OR ANY OFFICER,
DIRECTOR, EMPLOYEE OR AGENT OF ANY OF THEM) BASED UPON OR ARISING OUT OF THIS
PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ANY PLEDGED COLLATERAL OR
ANY COLLATERAL FOR THE PAYMENT OF ANY OF THE PLEDGOR OBLIGATIONS OR THE DEALINGS
OR THE RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ENTITIES, OR ANY OF THEM.
NONE OF THE PLEDGORS OR THE BENEFICIARIES WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION 9.7
HAVE BEEN FULLY DISCUSSED BY THE PLEDGORS AND THE BENEFICIARIES, AND THE
PROVISIONS HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION 9.7 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
9.8 Governing Laws. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
9.9 Submission to Jurisdiction; Service of Process. Each of
the Pledgors hereby irrevocably:
(a) Submits for itself and its property in any legal
action or proceeding relating to this Pledge Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that nothing contained herein shall affect
the right to effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction;
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(d) appoints CT Corporation, Inc., at 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, as its agent to receive service of
process or other summons in connection with any such action or proceeding and
waives personal service of process and consents to service of process by
certified or registered mail, return receipt requested, addressed to such
Pledgor at its address for notices as provided hereunder.
9.10 Currency. Any payments to be made by any Pledgor under
this Pledge Agreement shall be made in U.S. dollars. The foregoing reference to
U.S. Dollars is of the essence. The Pledgor Obligations of each of the Pledgors
shall, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in U.S.
Dollars that you may, in accordance with normal banking procedures, purchase
with the sum paid in that other currency (after deducting any premium and costs
of exchange) on the Business Day immediately following the day on which you
receive that payment. If the amount in U.S. Dollars that may be so purchased for
any reason falls short of the amount originally due, the Pledgors shall pay such
additional amount, in U.S. Dollars, as is necessary to compensate for the
shortfall. Any Obligation of the Pledgors not discharged by that payment shall,
to the fullest extent permitted by applicable law, be due as a separate and
independent Obligation and, until discharged as provided herein, shall continue
in full force and effect.
9.11 Rate of Interest for Canadian Companies. For purposes of
disclosure pursuant to the Interest Act (Canada), the yearly rate of interest to
which any rate of interest payable under this Pledge Agreement which is to be
calculated on any basis other than a full calendar year its equivalent may be
determined by multiplying such rate by a fraction, the numerator of which is the
number of days in the calendar year in which the period for which the interest
at such rate is payable ends and the denominator of which is the number of days
comprising such other basis.
9.12 No Limitations of Remedies; No Waiver. It is understood
and agreed that the rights and remedies herein enumerated are not intended to be
exhaustive but are in addition to any other rights or remedies provided at law,
in equity by contract or otherwise. You shall have the absolute right in your
sole discretion to determine the order in which your rights and remedies are to
be exercised, and your exercise of any right or remedy shall not preclude the
exercise of any other rights or remedies or be deemed to be a waiver thereof. No
delay or omission by you or any Beneficiary or any of the Pledgors to exercise
any right or remedy hereunder, whether before or after the happening of any
Event of Default, shall impair any such right or shall operate as a waiver
thereof or as a waiver of any such Event of Default. No single or partial
exercise by you or any Beneficiary or any Pledgor of any right or remedy
precludes any other or further exercise thereof, or precludes any other right or
remedy. A waiver on any one occasion shall not be construed as a bar to, or
waiver of, any right or remedy on any future occasion. No waiver of any right or
remedy provided for herein shall be effective as a waiver unless it is in
writing and signed by the Required Lenders.
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9.13 Termination or Release. (a) Upon satisfaction of the
Agents, the Lenders and the Issuing Bank as to the termination of the Line of
Credit and
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full, final and indefeasible payment of all the Obligations and all Pledgor
Obligations of each Pledgor, the Administrative Agent shall (i) deliver any
Pledged Collateral remaining under its control in accordance with the terms of
the Intercreditor Agreement, or, if it is no longer in effect, to or to the
order of the relevant Pledgor or as a court of competent jurisdiction may
otherwise direct, at the risk and expense of the Pledgors, and (ii) execute and
deliver to such Pledgor such documents and instruments as are reasonably
necessary to evidence such termination and release of the security interest
granted herein on any applicable public record as provided in Section 13 of the
Financing Agreement. Any execution and delivery of documents pursuant to this
Section 9.13 shall be without recourse to or warranty by you.
Very truly yours,
(the undersigned collectively,
the "Pledgors") Harvard Industries, Inc.
By
------------------------
Name:
Title:
Xxxxxxx-Xxxxxx, Inc.
By
------------------------
Name:
Title:
Xxxxx-Albion Corporation
By
------------------------
Name:
Title:
Harvard Industries Risk
Management, Inc.
By
------------------------
Name:
Title:
Trim Trends Canada Limited
By
------------------------
Name:
Title:
12
Agreed and Accepted as of
the date set forth above
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
--------------------------------
Name:
Title:
13
Schedule 1
to Pledge Agreement
Pledged Stock
Issuer Owner Certificate # # of Shares
------ ----- ------------- -----------
Pledged Notes
Issuer Date Issued Owner Type Face Amount Maturity Date
------ ----------- ----- ---- ----------- -------------
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Schedule 2
to Pledge Agreement
Encumbrances
Schedule of Definitions
Page
Administrative Agent.........................................................1
Beneficiary..................................................................1
Company......................................................................1
Financing Agreement..........................................................1
Guarantors...................................................................1
Notes........................................................................2
Payment Default..............................................................3
Pledged Collateral...........................................................2
Pledgor......................................................................2
Pledgor Obligations..........................................................2
Securities...................................................................2
Stock........................................................................2
you..........................................................................1
2
