Exhibit 10.25
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Agreement") is entered into as of this
29th day of October, 2003, by and between CAPITALSOURCE FINANCE LLC, a Texas
limited liability company, as administrative, payment and collateral agent for
the Lenders (in such capacities, "Secured Party") under the Term Loan and
Security Agreement, and NBU GROUP, LLC, a Texas limited liability company
("Pledgor").
RECITALS
A. Reference is made to that certain Term Loan and Security Agreement
dated as of the date hereof (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, from time to
time, the "Loan Agreement"), between Easy Gardener Products, Ltd., a Texas
limited partnership (the "Borrower"), Pledgor, as guarantor thereunder, the
other Credit Parties, the Secured Party and Lenders, and to the other Loan
Documents.
B. The obligations of Lenders to make the Loans to the Borrower are
conditioned on, among other things, the execution of this Agreement and the
pledge by Pledgor to Secured Party, for its benefit and the benefit of the
Lenders, of the Collateral (as defined herein) as security for Borrower's
Obligations, and Pledgor has agreed to enter into this Agreement in order to
induce Secured Party and Lenders to enter into the Loan Documents and to make
the Loans.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and as an inducement for Secured
Party and Lenders to enter into the Loan Documents, the parties hereto,
intending to be legally bound, do hereby agree as follows:
SECTION 1
DEFINITIONS
1.1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Loan Agreement or,
to the extent the same are used or defined therein, the meanings provided in
Article 9 of the UCC in effect on the date hereof. Whenever the context so
requires, each reference to gender includes the masculine and feminine, the
singular number includes the plural and vice versa. This Agreement shall mean
such agreement as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, from time to time. Unless
otherwise specified, all accounting terms not defined in the Loan Documents
shall have the meanings given to such terms in and shall be interpreted in
accordance with GAAP. References in this Agreement to any Person shall include
such Person and its successors and permitted assigns. In this Agreement, the
following terms shall mean as follows:
"Collateral" shall mean, collectively and each individually, (i) the
issued and outstanding capital stock, equity securities, membership units,
partnership interests and ownership interests of any Credit Party hereafter
owned or held of record or beneficially by Pledgor (Schedule 1.1 hereto reflects
such Collateral as of the date hereof) (and the certificates, copies of which
are attached hereto, representing such shares, securities and/or interests);
(ii) all other capital stock, equity securities, membership units, partnership
interests and ownership interests of any current or future Credit Party or
Subsidiary of Pledgor, in each case owned or held of record or beneficially by
Pledgor at any time (and the certificates representing such shares, securities
and/or interests); and (iii) any and all replacements,
products and proceeds of, and dividends, distributions in property or
securities, returns of capital or other distributions made on or with respect
to, any of the foregoing.
"Default" shall mean any event, fact, circumstance or condition
that, with the giving of applicable notice or passage of time or both, would
constitute, be or result in an Event of Default hereunder or under any Loan
Document.
"Event of Default" shall mean the occurrence of any event set forth
in Section IV.
"Loan Collateral" shall mean, collectively and each individually,
(i) the Collateral as defined herein, and (ii) the Collateral as defined in the
Loan Documents.
SECTION 2
COLLATERAL
2.1. Pledge of Collateral.
(a) As security for the due and punctual payment and performance by
Pledgor of all the Obligations, including, without limitation, all obligations
to Secured Party and Lenders under the Loan Documents and this Agreement
(collectively, the "Secured Obligations"), Pledgor hereby pledges and assigns to
Secured Party, for its benefit and the benefit of the Lenders, and grants to
Secured Party, for its benefit and the benefit of the Lenders, a continuing
first priority security interest in and Lien on, the Collateral and all proceeds
thereof and all of its right, title and interest in and to the foregoing.
(b) Pledgor has delivered to Secured Party, for its benefit and the
benefit of the Lenders, all certificates representing the Collateral set forth
on Schedule 1.1, and Pledgor will deliver to Secured Party, for its benefit and
the benefit of the Lenders, all certificates representing the Collateral
received or acquired by Pledgor after the date hereof within five (5) Business
Days after Pledgor's receipt or acquisition of such Collateral, in each case
registered in the name of Pledgor, duly endorsed in blank or accompanied by a
stock or interest power duly executed by Pledgor in blank, in form and substance
satisfactory to Secured Party, with any and all documentary tax stamps and other
documents necessary to cause Secured Party, for its benefit and the benefit of
the Lenders, to have a good, valid and perfected continuing first priority
pledge of and Lien on the Collateral (free and clear of any other Liens),
including, without limitation, any necessary notations in the corporate or other
records books of Pledgor or the Person in which such Collateral evidences an
ownership stake. At any time following the occurrence and continuation of an
Event of Default, at the option of Secured Party, the Collateral or any part
thereof may be registered in the name of Secured Party, for its benefit and the
benefit of the Lenders, or of its or their nominees, and Pledgor covenants that,
upon demand by Secured Party, Pledgor shall, and shall cause the Person in which
such Collateral evidences an ownership stake to, effect such registration.
(c) Secured Party shall have the right to pay any taxes relating to
the Collateral and any costs to preserve the Collateral, which payments shall be
part of the Secured Obligations. No injury to, or loss or destruction of any of,
the Loan Collateral or any Material Adverse Effect or Material Adverse Change
shall relieve Pledgor of any of the Secured Obligations.
2
2.2. Voting Rights, Dividends and Distributions.
(a) So long as no Event of Default has occurred, is continuing,
would result therefrom or be caused thereby, subject to the terms of this
Agreement (i) Pledgor shall be entitled to exercise all voting and/or consensual
rights and powers relating to the Collateral, and (ii) Pledgor shall be entitled
to receive and retain cash dividends and/or distributions payable on the
Collateral.
(b) Each party hereto shall execute and deliver (or cause to be
executed and delivered) to the other party such proxies, powers of attorney,
dividend orders and other instruments as such other party may request for the
purpose of enabling it to exercise the voting and/or consensual rights and
powers that it is entitled to exercise pursuant to this Agreement and/or to
receive the dividends that it is authorized to receive and retain pursuant to
this Agreement.
(c) Upon the occurrence and continuation of an Event of Default, all
rights of Pledgor to exercise voting and/or consensual rights and powers and/or
to receive dividends that Pledgor is entitled to exercise and/or receive
pursuant to this Section 2.2 shall cease immediately without any notice to
Pledgor or action by or on behalf of Secured Party or any other Person, and all
such rights thereupon shall become vested solely and exclusively in Secured
Party, for its benefit and the benefit of the Lenders, automatically without any
action by any Person. Pledgor hereby appoints Secured Party, for its benefit and
the benefit of the Lenders, its attorney-in-fact, with full power of
substitution, which appointment as attorney-in-fact is irrevocable and coupled
with an interest, to take all such actions upon or after the occurrence and
continuation of an Event of Default, whether in the name of Secured Party, any
Lender or Pledgor, as Secured Party may consider necessary or desirable for the
purpose of exercising such rights and receiving such dividends. Any dividends,
distributions in property, returns of capital and other distributions made on or
in respect of the Collateral, and any and all cash and other property received
in exchange therefor and/or redemption of any Collateral delivered to Pledgor in
violation of this Agreement shall be held in trust for the benefit of the
Secured Party, for its benefit and the benefit of the Lenders, and forthwith
shall be delivered to Secured Party, for its benefit and the benefit of the
Lenders. Any and all money and other property received by Secured Party pursuant
to the provisions of this Section 2.2(c) shall be retained by Secured Party, for
its benefit and the benefit of the Lenders, as part of the Collateral.
2.3 Intercreditor Agreement. Nothwithstanding anything in this Agreement
to the contrary, this Agreement is subject to the terms and conditions of the
Intercreditor Agreement in all respects.
SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Collateral. Pledgor hereby represents and warrants to Secured Party
and Lenders (which representations and warranties shall survive the execution
and delivery of this Agreement and the making of Loans under the Loan Agreement)
as follows: (a) Pledgor is, or, with respect to the Collateral received or
acquired by Pledgor after the date hereof, will be, the direct record and
beneficial owner of each share, security and other interest that comprises the
Collateral, and Pledgor has and will have good, valid and marketable title
thereto, free and clear of all Liens other than those created by this Agreement
and Permitted Liens; (b) all of the Collateral has been, or, with respect to the
Collateral received or acquired by Pledgor after the date hereof, will be, duly
and validly issued, fully paid and nonassessable; (c) the Collateral constitutes
that percentage of the issued and outstanding capital stock, equity securities,
membership units, partnership interests and ownership interests of each Person
in which such Collateral represents an ownership interest (calculated on a fully
diluted, as converted basis) as set forth on Schedule 1.1; and (d) the
Collateral is and will be duly and validly pledged to Secured Party, for its
benefit and the benefit of the Lenders, in accordance with law, and Secured
Party, for its benefit and the benefit of the Lenders, has and will have a good,
valid and perfected first priority Lien on and security interest in the
3
Collateral and the proceeds thereof subject to no other Liens, and no filing or
other action will be necessary to perfect or protect such Lien other than
delivery to Secured Party of certificates representing the Collateral. Pledgor
has full legal authority and power to own the Collateral and to execute, deliver
and perform this Agreement and to consummate the transactions contemplated
hereunder, and Pledgor is under no legal restriction, limitation or disability
that would prevent any of the foregoing. No financing statement relating to any
of the Collateral is on file in any public office except those on behalf of
Secured Party for the benefit of itself and the Lenders or with respect to
Permitted Liens.
3.2. Authorization. The execution, delivery and performance by Pledgor of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary actions on the part of Pledgor
and pursuant to all necessary consents required therefor. This Agreement has
been duly executed and delivered by Pledgor and constitutes the legal, valid and
binding obligation of Pledgor, enforceable against Pledgor in accordance with
its terms, subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general principles of equity
which may limit the availability of equitable remedies (whether in a proceeding
at law or in equity). No approval, consent, authorization of, filing
registration or qualification with, or other action by, Pledgor or any other
Person (including, without limitation, any Person whose securities constitute
part of the Collateral) or Governmental Authority is or will be necessary to
permit the valid execution, delivery and performance of this Agreement by
Pledgor or the consummation of the transactions or creation of the Liens and
security interests contemplated hereby other than delivery of certificates
representing the Collateral (if any) to Secured Party and the filing of
appropriate Uniform Commercial Code financing statements.
3.3. No Conflicts. The execution, delivery and performance by Pledgor of
this Agreement and the consummation of the transactions contemplated hereby and
the granting and creation of the security interest and Liens contemplated hereby
do not and will not (1) conflict with or violate any provision of any applicable
law, statute, rule, regulation, ordinance, license or tariff or any judgment,
decree or order of any court or other Governmental Authority binding on or
applicable to Pledgor or any Person whose securities constitute part of the
Collateral or any of its or their properties or assets; (2) conflict with,
result in a breach of, constitute a default of or an event of default under, or
an event, fact, condition or circumstance which, with notice or passage of time,
or both, would constitute or result in a conflict, breach, default or event of
default under, require any consent not obtained under, or result in or require
the acceleration of any indebtedness pursuant to, any indenture, agreement or
other instrument to which Pledgor or any Borrower is a party or by which it or
they, or any of its or their properties or assets are bound or subject; (3) if
applicable, conflict with or violate any provision of the certificate of
incorporation or formation, by-laws, limited liability company agreement or
similar documents of Pledgor or any Person whose securities constitute part of
the Collateral or any agreement by and between Pledgor or any Person whose
securities constitute part of the Collateral and its shareholders or equity
owners or among any such shareholders or equity owners; or (4) result in the
creation or imposition of any Lien of any nature whatsoever upon any of the
properties or assets of Pledgor or any Person whose securities constitute part
of the Collateral (except as contemplated herein).
3.4. Non-Subordination. The obligations of Pledgor under this Agreement
are not subordinated in any way to any other obligation of Pledgor or to the
rights of any other Person, and Pledgor is not a party to or bound by any other
agreement, document or instrument that otherwise relates to the Secured
Obligations or any of the Lender Collateral (other than the Loan Documents).
3.5. Litigation and Compliance; Other Agreements. (a) Pledgor is not in
default or breach of the performance, observance or fulfillment of any
obligation, covenant or condition contained in any agreement, document or
instrument to which it is a party or by which it or any of its properties or
assets is or are bound or subject, which default or breach, if not remedied
within any applicable grace period or
4
cure period, could reasonably be expected to have or result in a Material
Adverse Effect. Except for as set forth in Schedule 5.6 of the Loan Agreement
there is no action, suit, proceeding or investigation pending or, to Pledgor's
knowledge, threatened, before or by any court, arbitrator or Governmental
Authority (1) against or affecting the Collateral, Pledgor, any entity whose
securities constitute the Collateral, this Agreement or the transactions
contemplated hereby, or (2) that questions or could reasonably be expected to
prevent the validity of this Agreement or the right or ability of Pledgor to
execute or deliver this Agreement or to consummate the transactions contemplated
hereby or to create or grant the Liens and security interests contemplated
hereby.
(b) Neither Pledgor nor any entity whose securities constitute part
of the Collateral is (i) a party to any judgment, order or decree or any
agreement, document or instrument, or subject to any restriction, which would
materially adversely affect its ability to execute and deliver, or perform
under, this Agreement, or (ii) in default in the performance, observance or
fulfillment of any obligation, covenant or condition contained in any agreement,
document or instrument to which it is a party or to which any of its properties
or assets are subject, which default, if not remedied within any applicable
grace or cure period, could reasonably be expected to have or be a Material
Adverse Effect, nor is there any event, fact, condition or circumstance which,
with notice or passage of time or both, would constitute or result in a
conflict, breach, default or event of default under, any of the foregoing which,
if not remedied within any applicable grace or cure period could reasonably be
expected to have or be a Material Adverse Effect.
3.6 Truthful Disclosure. The representations and warranties made by
Pledgor in this Agreement do not contain any untrue statement of material fact
or omit to state any fact necessary to make the statements herein not materially
misleading, and there is no fact known to Pledgor which Pledgor has not
disclosed to Secured Party in writing which could reasonably be expected to have
or result in a Material Adverse Effect.
3.7 Covenants.
(a) Pledgor shall, and shall cause each Person whose securities
constitute part of the Collateral to, take all necessary and appropriate actions
to ensure that this Agreement and the Liens and pledges created hereby are and
remain enforceable against Pledgor in accordance with their terms and that
Pledgor complies with each of its obligations hereunder. Pledgor shall not (i)
cause or permit to be done, or enter into or make or become a party to any
agreement, arrangement or commitment to do or cause to be done, any of the
things prohibited by this Agreement or that would breach this Agreement, or (ii)
enter into or make or become a party to any agreement, document or instrument or
arrangement that conflicts with this Agreement or that would prevent Pledgor
from complying herewith and/or performing hereunder.
(b) Pledgor hereby agrees to take or cause to be taken promptly such
further actions, obtain such consents and approvals and duly execute and deliver
or cause to be executed and delivered such further agreements, assignments,
instructions or documents Secured Party may request in its Permitted Discretion
with respect to or in order to fully effectuate the purposes, terms and
conditions of this Agreement and the consummation of the transactions
contemplated hereby, whether before, at or after the performance and/or
consummation of such transactions or the occurrence of a Default or Event of
Default, including, without limitation, any of the foregoing necessary or
required or requested by Secured Party in its Permitted Discretion to create,
perfect, maintain, preserve, continue, validate or otherwise protect, and from
time to time renew, Secured Party's, for its benefit and the benefit of the
Lenders, perfected first priority Lien on and pledge of the Collateral. Without
limiting the foregoing, upon the
5
exercise by Secured Party or any Lender or any of its or their Affiliates or
agents of any right or remedy which requires any consent, approval or
registration with, consent, qualification or authorization by, any Person,
Pledgor shall execute and deliver, or cause the execution and delivery of, all
applications, certificates, instruments and other documents that Secured Party
or any Lender or its or their Affiliate or agents may be required to obtain for
such consent, approval, registration, qualification or authorization. Pledgor
hereby appoints Secured Party, for its benefit and the benefit of the Lenders,
its attorney-in-fact (without requiring Secured Party to act as such), with full
power of substitution, which appointment as attorney-in-fact is irrevocable and
coupled with an interest, to take all such actions, whether in the name of
Secured Party, for its benefit and the benefit of the Lenders, or Pledgor, as
Secured Party in its Permitted Discretion may consider necessary or desirable
with respect to the foregoing (to the extent Pledgor fails to so execute and/or
file any of the foregoing within two (2) Business Days of Secured Party's
request or the time when Pledgor is otherwise obligated to do so). Pledgor will
pay all costs associated with respect to the foregoing, including without
limitation, the cost of filing any of the foregoing in all public offices or
other locations wherever Secured Party in its Permitted Discretion deems filing
to be necessary or desirable.
(c) Pledgor (i) shall (A) maintain at all times the pledge of the
Collateral to Secured Party, for its benefit and the benefit of the Lenders, and
Secured Party's, for its benefit and the benefit of the Lenders, perfected first
priority Lien on the Collateral (subject to Priority Permitted Liens); and (B)
defend the Collateral and Secured Party's, for its benefit and the benefit of
the Lenders, perfected first priority Lien thereon and pledge thereof (subject
to Priority Permitted Liens) against all claims and demands of all Persons at
any time and pay all costs and expenses (including, without limitation, in-house
documentation and diligence fees and legal expenses and reasonable attorneys'
fees and expenses) in connection with such defense, which, at Secured Party's
discretion, shall be added to the Obligations, and (ii) shall not sell, lease,
transfer, pledge, encumber, restrict, assign or otherwise dispose of any of the
Collateral or any interest therein or create, incur, assume or suffer to exist
any Lien on the Collateral or any interest therein (except pursuant hereto).
(d) Pledgor shall, and shall cause each Person whose securities
constitute the Collateral to, (i) keep true, complete and accurate records with
respect to the Collateral, and (ii) not take or permit to be taken any action in
connection with the Collateral or otherwise which would impair in any material
respect (as determined by Secured Party in its Permitted Discretion) the value
of the Collateral or any portion thereof or the value of the interests or rights
of Pledgor or Secured Party, for its benefit and the benefit of the Lenders,
therein, including, without limitation, any amendment to or modification of the
certificate of incorporation (or similar charter documents) or bylaws (or
similar documents) of Pledgor or such Person.
3.8 No Third Party Beneficiary. No rights are intended to be created under
this Agreement for the benefit of any third party donee, creditor or incidental
beneficiary of Pledgor.
SECTION 4
EVENTS OF DEFAULT
The occurrence of any one or more of the following shall constitute an
"Event of Default" under this Agreement: (a) Pledgor shall be in violation,
breach or default of, or shall fail to perform, observe or comply with any
covenant, obligation or agreement set forth in, this Agreement or any other Loan
Document to which it is a party and such failure shall not be cured within the
applicable period, if any; provided that, with respect to the covenants set
forth herein (other than Section 3.7(c)(i)(A) and (ii) and 3.7(d)(ii) for which
there shall be no cure periods), there shall be a 30 calendar day cure period
commencing from the earlier of (i) receipt by Pledgor of written notice of such
breach, default, violation
6
or failure, and (ii) the time at which Pledgor or any authorized officer thereof
knew or became aware, or should have known or been aware, of such failure,
violation, breach or default; (b) any representation, statement or warranty made
or deemed made by Pledgor in this Agreement shall not be true and correct in all
material respects or shall have been false or misleading in any material respect
on the date when made or deemed to have been made (except to the extent already
qualified by materiality, in which case it shall be true and correct in all
respects and shall not be false or misleading in any respect) except those made
as of a specific date; (c) any Event of Default (as defined in the Loan
Agreement) shall occur and be continuing past any cure period and shall not have
been waived in writing; or (d) if prior to termination of this Agreement
pursuant to Section 6.11 hereof, this Agreement shall cease to be in full force
and effect or any Lien created hereunder shall cease to constitute a valid
perfected first priority Lien (other than Priority Permitted Liens) on the
Collateral or Secured Party, for its benefit and the benefit of the Lenders,
otherwise ceases to have a valid perfected first priority Lien on and security
interest in any of the Collateral (other than Priority Permitted Liens).
SECTION 5
RIGHTS AND REMEDIES
5.1 Rights and Remedies in Loan Documents.
(a) In addition to the provisions set forth in this Agreement,
upon the occurrence and continuation of an Event of Default, Secured Party, for
its benefit and the benefit of the Lenders, shall have the right to exercise any
and all rights, powers, options and remedies provided for in any Loan Document
and/or herein, under the UCC or at law or in equity, including, without
limitation, to the fullest extent permitted by applicable law, the right (in its
sole and absolute discretion) to, which Pledgor agrees to be commercially
reasonable, (i) apply the Collateral and any other property of Pledgor,
including, without limitation, the Loan Collateral, held by Secured Party for
the benefit of Lenders, or Lenders to reduce the Secured Obligations, (ii)
foreclose the Liens created hereunder and under the Loan Documents, (iii)
realize upon, take possession of and/or sell any Loan Collateral, with or
without judicial process, at public or private sales or at any broker's board or
on any securities exchange or otherwise, (iv) exercise all rights and powers
with respect to the Loan Collateral as Pledgor might exercise in its absolute
discretion, including, without limitation, to (1) relinquish or abandon any
Collateral or any Lien thereon, (2) to vote all or any part of the Collateral
and otherwise act with respect thereto as though it were the outright owner
thereof, (3) to settle, adjust, compromise and arrange all claims and demands
whatsoever in relation to all or any part of the Collateral, (4) to execute all
such contracts, agreements, deeds, documents and instruments, to bring, defend
and abandon all such actions, suits and proceedings, and to take all actions in
relation to all or any part of the Collateral, and/or (5) to appoint managers,
sub-agents, and officers for any of the purposes mentioned in the foregoing
provisions of this Section and to dismiss the same, (v) collect and send notices
regarding the Loan Collateral, with or without judicial process, (vi) by its own
means or with judicial assistance, enter any premises at which Loan Collateral
is located, or render any of the foregoing unusable or dispose of the Loan
Collateral on such premises without any liability for rent, storage, utilities,
or other sums, and Pledgor shall not resist or interfere with such action, (vii)
at Borrower's or Pledgor's expense, require that all or any part of the Loan
Collateral be assembled and made available to Secured Party at any place
designated by Secured Party in its Permitted Discretion, and/or (viii)
relinquish or abandon any Loan Collateral or any Lien thereon. Secured Party,
for its benefit and the benefit of the Lenders, shall have the right in its sole
discretion to determine which rights and/or remedies Secured Party or Lenders
may at any time pursue, relinquish, subordinate or modify, and such
determination will not in any way modify or affect any of Secured Party's or
Lenders' rights, Liens or remedies under any Loan Document or this Agreement,
applicable law or equity. The enumeration of any rights and remedies in this
Agreement or any Loan Document is not intended to be exhaustive, and all rights
and remedies of Secured Party described in this Agreement and the Loan Documents
are cumulative and are not alternative to or exclusive of any other rights or
remedies which
7
Secured Party otherwise may have. The partial or complete exercise of any right
or remedy shall not preclude any other further exercise of such or any other
right or remedy.
(b) Notwithstanding any provision of any Loan Document,
Secured Party, in its sole discretion, shall have the right, but not the
obligation, at any time that Borrower or Pledgor fails to do so, and from time
to time, without prior notice, as applicable, to: (i) obtain insurance covering
any of the Loan Collateral to the extent required under the Loan Agreement; (ii)
discharge taxes, levies or Liens on any of the Loan Collateral that are in
violation of any Loan Document unless Borrower or Pledgor, as applicable, is in
good faith with due diligence by appropriate proceedings contesting those items;
and (iii) pay for the maintenance, repair and/or preservation of the Loan
Collateral. Such expenses and advances shall be added to the Obligations until
reimbursed to Secured Party and shall be secured by the Loan Collateral, and
such payments by Secured Party shall not be construed as a waiver by Secured
Party or Lenders of any Event of Default or any other rights or remedies of
Secured Party and Lenders.
(c) Pledgor agrees that notice received by it at least ten
(10) calendar days before the time of any intended public sale, or the time
after which any private sale or other disposition of Loan Collateral is to be
made, shall be deemed to be reasonable notice of such sale or other disposition.
If permitted by applicable law, any perishable Loan Collateral which threatens
to speedily decline in value or which is sold on a recognized market may be sold
immediately by Secured Party without prior notice to Pledgor. At any sale or
disposition of Loan Collateral, Secured Party may (to the extent permitted by
applicable law) (i) purchase all or any part thereof free from any right of
redemption by Pledgor or any Borrower or other Person guaranteeing the
Obligations, which right is hereby waived and released, (ii) restrict the number
of prospective bidders or purchasers and/or further restrict such prospective
bidders or purchasers to Persons who will represent and agree that they are
purchasing for their own account, for investment and not with a view to the
distribution or resale of the Collateral, and (iii) otherwise require that such
sale be conducted subject to restrictions as to such other matters as Secured
Party may deem necessary in order that such sale may be effected in such manner
as to comply with all applicable state and federal securities and other laws.
(d) Pledgor hereby acknowledges that (i) notwithstanding that
a higher price might be obtained for the Collateral at a public sale than at a
private sale or sales, the making of a public sale of the Collateral may be
subject to registration requirements under applicable securities laws and other
legal restrictions, compliance with which would require such actions on the part
of Pledgor, would entail such expenses and would subject Secured Party, any
Lender, any underwriter through whom the Collateral may be sold or any
controlling person of any of the foregoing to such liabilities, as would make a
public sale of the Collateral impractical, and accordingly, Pledgor hereby
agrees that private sales made by Secured Party or any Lender in good faith in
accordance with the provisions of this Agreement may be at prices and on other
terms less favorable to the seller than if the Collateral were sold at a public
sale, and that Secured Party and Lenders shall not have any obligation to take
any steps in order to permit the Collateral to be sold at a public sale, such a
private sale being considered or deemed to be a sale in a commercially
reasonable manner; and (ii) Secured Party is hereby authorized to comply with
any limitation or restriction in connection with such sale that may be necessary
in order to avoid any violation of applicable law or in order to obtain any
required approval of the purchaser(s) by any Governmental Authority or officer
or court.
5.2 Application of Proceeds. In addition to any other rights,
options and remedies Secured Party and Lenders have under the Loan Documents,
the UCC, at law or in equity, the proceeds of any collection, recovery, receipt,
appropriation, realization, transfer, exchange, disposition or sale of the Loan
Collateral as aforesaid shall be applied in the following order of priority: (i)
first, to the payment of all costs and expenses of every kind incurred by
Secured Party and Lenders in connection therewith or incidental to the care,
safekeeping or otherwise of any of the Loan Collateral, and to the payment of
all
8
sums which Secured Party and Lenders may be required or may elect to pay, if
any, for taxes, assessments, insurance and other charges upon the Loan
Collateral or any part thereof, and all other payments that Secured Party and
Lenders may be required or authorized to make under any provision of this
Agreement or any Loan Document (including, without limitation, in each such
case, in-house documentation and diligence fees and legal expenses, search,
audit, recording, professional and filing fees and expenses and reasonable
attorneys' fees and all expenses, liabilities and advances made or incurred in
connection therewith); (ii) second, to the payment of all Secured Obligations in
such order as determined by Agent in its sole discretion; (iii) third, to the
satisfaction of indebtedness secured by any subordinate security interest of
record in the Loan Collateral if written notification of demand therefor is
received before distribution of the proceeds is completed, provided, that, if
requested by Secured Party, the holder of a subordinate security interest shall
furnish reasonable proof of its interest, and unless it does so, Secured Party
and Lenders need not address its claims; and (iv) fourth, to the payment of any
surplus then remaining to Pledgor or Borrower, as applicable, unless otherwise
provided by law or directed by a court of competent jurisdiction, provided that
Pledgor shall be liable for any deficiency if such proceeds are insufficient to
satisfy the Secured Obligations or any other item referred to in this section.
5.3 Rights of Lender to Appoint Receiver. Without limiting and in
addition to any other rights, options and remedies Secured Party and Lenders
have hereunder or under the Loan Documents, the UCC, at law or in equity, upon
the occurrence and continuation of an Event of Default, Secured Party shall have
the right to apply for and have a receiver appointed by a court of competent
jurisdiction in any action taken by Secured Party to enforce its rights and
remedies in order to manage, protect and preserve the Loan Collateral and
continue the operation of the business of Borrower and/or Pledgor and to collect
all revenues and profits thereof and apply the same to the payment of all
expenses and other charges of such receivership including the compensation of
the receiver and to the payments as aforesaid until a sale or other disposition
of such Loan Collateral shall be finally made and consummated.
5.4 Attorney in Fact. Pledgor hereby irrevocably appoints Secured
Party, for its benefit and the benefit of the Lenders, as its attorney in fact
to take any action Lender deems necessary or desirable upon the occurrence and
continuation of an Event of Default to perfect, protect and realize upon its
Lien and first priority security interest in the Collateral, for its benefit and
the benefit of the Lenders, including the execution and delivery of any and all
documents or instruments related to the Collateral in Pledgor's name, or
otherwise to effect fully the purpose, terms and conditions of this Agreement
and the other Loan Documents, and said appointment shall create in Secured
Party, for its benefit and the benefit of the Lenders, a power coupled with an
interest.
SECTION 6
MISCELLANEOUS
6.1 No Waiver of Defaults; Waiver. No course of action or dealing,
renewal, waiver, release or extension of any provision of any Loan Document or
this Agreement, or single or partial exercise of any such provision, or delay,
failure or omission on Secured Party's or Lenders' part in enforcing any such
provision shall affect the liability of Pledgor or operate as a waiver of such
provision or preclude any other or further exercise of such provision. No waiver
by Secured Party or any Lender of any one or more defaults by any other party in
the performance of any of the provisions of any Loan Document or this Agreement
shall operate or be construed as a waiver of any future default, whether of a
like or different nature, and each such waiver shall be limited solely to the
express terms and provisions of such waiver. Notwithstanding any other provision
of any Loan Document or this Agreement, by completing the Closing and/or by
making Advances and/or funding the Loans, neither Secured Party nor any Lender
waives any breach of any representation or warranty under any Loan Document or
this Agreement, and all of Secured Party's and Lenders' claims and rights
resulting therefrom are specifically reserved.
9
Except as expressly provided for herein, Pledgor hereby waives setoff,
counterclaim, demand, presentment, protest, all defenses with respect to any and
all instruments and all notices and demands of any description (including,
without limitation, notice of acceptance hereof, notice of any Loan made, credit
extended, collateral received or delivered) and the pleading of any statute of
limitations as a defense to any demand under any Loan Document, it being the
intention that Pledgor shall remain liable under this Agreement and the Loan
Documents until the full amount of all Secured Obligations shall have been
indefeasibly paid in cash and performed and satisfied in full and the Loan
Agreement terminated, notwithstanding any act, omission or anything else which
might otherwise operate as a legal or equitable discharge of Pledgor. Pledgor
hereby waives any and all defenses and counterclaims it may have or could
interpose in any action or procedure brought by Secured Party or any Lender to
obtain an order of court recognizing the assignment of, or Lien of Secured
Party, for its benefit and the benefit of the Lenders, in and to, any
Collateral.
6.2 Entire Agreement. This Agreement and the other Loan Documents to which
Pledgor is a party constitute the entire agreement between Pledgor and Secured
Party and Lenders with respect to the subject matter hereof and thereof, and
supersede all prior agreements and understandings, if any, relating to the
subject matter hereof or thereof. Any promises, representations, warranties or
guarantees not herein contained and hereinafter made shall have no force and
effect unless in writing signed by the parties hereto. Each party hereto
acknowledges that it has been advised by counsel in connection with the
negotiation and execution of this Agreement and is not relying upon oral
representations or statements inconsistent with the terms and provisions hereof.
To the extent that there is any conflict or inconsistency between this Agreement
and the Loan Agreement, the terms and conditions of the Loan Agreement shall
govern.
6.3 Amendment. No provision of this Agreement may be changed, modified,
amended, restated, waived, supplemented, discharged, canceled or terminated
orally or by any course of dealing or in any other manner other than by a
written agreement signed by Secured Party and Pledgor.
6.4 Notices. Any notice or request under this Agreement shall be given to
any party thereto at such party's address set forth beneath its signature on the
signature page thereto, or at such other address as such party may hereafter
specify in a notice given in the manner required under this Section 6.4. Any
such notice or request shall be given only by, and shall be deemed to have been
received upon (each, a "Receipt"): (a) registered or certified mail, return
receipt requested, on the date on which such received as indicated in such
return receipt, (b) delivery by a nationally recognized overnight courier, one
(1) Business Day after deposit with such courier, or (c) facsimile or electronic
transmission, in each case upon telephone or further electronic communication
from the recipient acknowledging receipt (whether automatic or manual from
recipient), as applicable.
6.5 Governing Law; Jurisdiction; Construction. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York without giving effect to its choice of law provisions. Any judicial
proceeding against Pledgor with respect to any of the Secured Obligations, any
of the Loan Collateral or this Agreement may be brought in any federal or state
court of competent jurisdiction located in the State of New York. By execution
and delivery of this Agreement, Pledgor (a) accepts the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any
judgment rendered thereby, (b) waives personal service of process, (c) agrees
that service of process upon it may be made by certified or registered mail,
return receipt requested, pursuant to Section 6.4 hereof, and (d) waives any
objection to jurisdiction and venue of any action instituted hereunder and
10
agrees not to assert any defense based on lack of jurisdiction, venue,
convenience or forum non conveniens. Nothing shall affect the right of Secured
Party or any Lender to serve process in any manner permitted by law or shall
limit the right of Secured Party or any Lender to bring proceedings against
Pledgor in the courts of any other jurisdiction having jurisdiction. Any
judicial proceedings against Secured Party or any Lender, involving, directly or
indirectly, the Secured Obligations, Loan Collateral or this Agreement shall be
brought only in a federal or state court located in the State of New York.
Pledgor acknowledges that it participated in the negotiation and drafting of
this Agreement and that, accordingly, it shall not move or petition a court
construing this Agreement to construe it more stringently against one party than
against any other.
6.6 Severability; Captions; Counterparts; Facsimile Signature. If any
provision of this Agreement is adjudicated to be invalid under applicable laws
or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder of
this Agreement which shall be given effect so far as possible. The captions in
this Agreement are intended for convenience and reference only and shall not
affect the meaning or interpretation of this Agreement. This Agreement may be
executed in one or more counterparts (which taken together, as applicable, shall
constitute one and the same instrument) and by facsimile transmission, which
facsimile signatures shall be considered original executed counterparts. Each
party to this Agreement agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party.
6.7 Successors and Assigns. This Agreement (a) shall inure to the benefit
of, and may be enforced by, Secured Party and Lenders, Transferees, Participants
(to the extent expressly provided in the Loan Agreement) and all future holders
of the Notes, any of the Secured Obligations or any of the Loan Collateral and
each of their respective successors and permitted assigns, and (b) shall be
binding upon and enforceable against Pledgor and Pledgor's permitted assigns and
successors. Pledgor shall not assign, delegate or transfer this Agreement or any
of its rights or obligations thereunder without the prior written consent of
Secured Party. This Agreement shall be binding upon Pledgor and its respective
heirs, administrators, executors, successors and assigns. Nothing contained in
this Agreement or any other Loan Document shall be construed as a delegation to
Secured Party or any Lender of Pledgor's duty of performance. PLEDGOR
ACKNOWLEDGES AND AGREES THAT SECURED PARTY AND LENDERS AT ANY TIME AND FROM TIME
TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT ANY SUBSTANTIVE CHANGES OTHER THAN
THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT
PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR
OBLIGATIONS UNDER THIS AGREEMENT, ANY NOTE, THE OBLIGATIONS, THE LOAN COLLATERAL
AND/OR THE LOAN DOCUMENTS TO ONE OR MORE TRANSFEREES IN EACH CASE ON THE TERMS
AND CONDITIONS PROVIDED IN THE LOAN AGREEMENT. The terms "Secured Party" and
"Lenders" in this Agreement includes Transferees and Participants and Secured
Party's successors and assigns, each of which shall have all rights and benefits
of Secured Party or Lender thereunder. Each Transferee and Participant shall
have all of the rights and benefits with respect to the Secured Obligations,
Notes, Loan Collateral, this Agreement and/or Loan Documents held by it as fully
as if the original holder thereof. Notwithstanding any other provision of this
Agreement or any Loan Document, Secured Party and Lenders may disclose to any
Transferee or Participant all information, reports, financial statements,
certificates and documents obtained under any provision of this Agreement.
6.8 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
11
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING
HEREUNDER OR IN ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES TO THE WAIVER OF
THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
6.9 Expenses. Pledgor shall pay all costs and expenses incurred by Secured
Party and/or its Affiliates (and, with respect to all items below, Lenders in
connection with, relating to and/or arising out of or resulting from any Event
of Default or occurring thereafter), including, without limitation,
documentation and diligence fees and expenses, all search, audit, appraisal,
recording, professional and filing fees and expenses and all other out-of-pocket
charges and expenses (including, without limitation, UCC and judgment and tax
lien searches and UCC filings and fees for post-Closing UCC and judgment and tax
lien searches and wire transfer fees and audit expenses), and reasonable
attorneys' fees and expenses, (i) in any effort to enforce, protect or collect
payment of any Secured Obligation or to enforce this Agreement or any related
agreement, document or instrument, (ii) in connection with entering into,
negotiating, preparing, reviewing and executing this Agreement and/or any
related agreements, documents or instruments, (iii) arising in any way out of
administration of the Secured Obligations or the taking or refraining from
taking by Secured Party or Lender of any action requested by Pledgor, (iv) in
connection with instituting, maintaining, preserving, enforcing and/or
foreclosing on Secured Party's, for the benefit of itself and Lenders, Liens in
any of the Collateral or securities pledged under this Agreement, whether
through judicial proceedings or otherwise, (v) in defending or prosecuting any
actions, claims or proceedings arising out of or relating to Secured Party's
and/or Lenders' transactions with Pledgor, (vi) in seeking, obtaining or
receiving any advice with respect to its rights and obligations under this
Agreement and any related agreement, document or instrument, (vii) arising out
of or relating to any Default or Event of Default or occurring thereafter or as
a result thereof, (viii) in connection with all actions, visits, audits and
inspections undertaken by Secured Party or Lenders or their Affiliates pursuant
to this Agreement, and/or (ix) in connection with any modification, restatement,
supplement, amendment, waiver or extension of this Agreement and/or any related
agreement, document or instrument. All of the foregoing shall be part of the
Secured Obligations. If Secured Party, any Lender or any of their Affiliates
uses in-house counsel for any purpose under this Agreement for which Pledgor is
responsible to pay or indemnify, Pledgor expressly agrees that the Secured
Obligations include reasonable charges for such work commensurate with the fees
that would otherwise be charged by outside legal counsel selected by Secured
Party, such Lender or such Affiliate in its sole discretion for the work
performed.
6.10 Termination. This Agreement shall continue in full force and effect
until full performance and indefeasible payment in full in cash of all Secured
Obligations and termination of the Loan Agreement. Notwithstanding any other
provision of this Agreement or any Loan Document, no termination of this
Agreement shall affect Secured Party's or Lenders' rights or any of the Secured
Obligations existing as of the effective date of such termination until the
Secured Obligations have been fully performed and indefeasibly paid in cash in
full. The Liens granted to Secured Party, for its benefit and the benefit of the
Lenders, hereunder and any financing statements filed pursuant hereto and the
12
rights and powers of Secured Party and Lenders hereunder shall continue in full
force and effect until all of the Secured Obligations have been fully performed
and indefeasibly paid in full in cash.
6.11 [Intentionally Omitted.]
6.12 Approvals and Duties; Release of Collateral. Unless expressly
provided herein to the contrary, any approval, consent, waiver or satisfaction
of Secured Party or Lenders with respect to any matter that is subject of any
Loan Document may be granted or withheld by Secured Party in its sole and
absolute discretion. Secured Party and Lenders shall have no responsibility for
or obligation or duty with respect to any of the Collateral (other than the duty
of reasonable care with respect to the safekeeping of such Collateral in their
custody) or any matter or proceeding arising out of or relating thereto,
including, without limitation, any obligation or duty to collect any sums due in
respect thereof or to protect or preserve any rights pertaining thereto.
Promptly following full performance and satisfaction and indefeasible payment in
full in cash of all Secured Obligations and the termination of this Agreement
and the Loan Documents, the Liens created hereby shall terminate and Secured
Party and Lenders shall execute and deliver such documents, at Pledgor's
expense, as are necessary to release their Liens in the Collateral and shall
return the Collateral to Pledgor. Secured Party and each Lender shall not be
deemed to have made any representation or warranty with respect to any
Collateral so delivered except that such Collateral is free and clear, on the
date of such delivery, of any and all Liens arising from its own acts.
6.13 Survival. It is the express intention and agreement of the parties
hereto that all covenants, representations, warranties and waivers and
indemnities made by Pledgor herein shall survive the execution, delivery and
termination of this Agreement until all Obligations are performed in full and
indefeasibly paid in full in cash and the Loan Documents are terminated.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
13
IN WITNESS WHEREOF, each of the parties hereto has duly executed
this Pledge Agreement as of the date first written above.
CAPITALSOURCE FINANCE LLC
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
-------------
Title: Associate General Counsel
-------------------------
CapitalSource Finance LLC
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Corporate Finance Group, Portfolio Manager
Telephone: (000) 000-0000
FAX: (000) 000-0000
E-MAIL: xxxxxx@xxxxxxxxxxxxx.xxx
NBU GROUP, LLC
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx X. Xxxxxx
-----------------
Title: President
---------
NBU Group, LLC
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx, Chief Financial Officer
Telephone: (000) 000-0000
FAX: (000) 000-0000
E-MAIL:xxxxx@xxxxxxxxxxxx.xxx
Pledge Agreement
Schedule 1.1
--------------------------------------------------------------------------------------
Certificate
Class or Series Number of Percentage of Representing
Name of Entity of Securities Securities Ownership Such Securities
-------------- ------------- ---------- --------- ---------------
--------------------------------------------------------------------------------------
None
--------------------------------------------------------------------------------------
