EXHIBIT 10.12
HOLDINGS PLEDGE AGREEMENT
HOLDINGS PLEDGE AGREEMENT (as amended, modified or supplemented from
time to time, this "Agreement"), dated as of January 25, 2002, made by COINMACH
LAUNDRY CORPORATION, a Delaware corporation (the "Pledgor"), in favor of BANKERS
TRUST COMPANY, a New York banking corporation, as Collateral Agent (in such
capacity and together with any successors in such capacity, the "Collateral
Agent") for the benefit of (x) the Banks (as hereinafter defined), the
Administrative Agent (as hereinafter defined), the Syndication Agents (as
hereinafter defined),the Lead Arranger and Book Manager (as hereinafter
defined), the Collateral Agent, the Documentation Agent (as hereinafter defined)
and any other lenders from time to time party to, the Credit Agreement
hereinafter referred to (such Banks, the Administrative Agent, the Syndication
Agents, the Lead Arranger and Book Manager, the Collateral Agent, the
Documentation Agent and such other lenders, if any, are hereinafter called the
"Bank Creditors"), and (y) if one or more Banks or any Affiliate of a Bank
enters into one or more Interest Rate Protection Agreements or Other Hedging
Agreements (each as hereinafter defined), from time to time with, or guaranteed
by, any Pledgor, any such Bank or Banks or Affiliate or Affiliates of such Bank
or Banks (even if the respective Bank subsequently ceases to be a Bank under the
Credit Agreement for any reason) so long as any such Bank or Affiliate
participates in the extension of such Interest Rate Protection Agreements or
Other Hedging Agreements, and their subsequent assigns, if any (collectively,
the "Other Creditors"; together with the Bank Creditors, the "Secured
Creditors"). Except as otherwise defined herein, all capitalized terms used
herein and defined in the Credit Agreement shall be used herein as so defined.
R E C I T A L S:
- - - - - - - -
1. The Pledgor, Coinmach Corporation (the "Borrower"), certain
subsidiaries (the "Subsidiary Guarantors") of the Borrower from time to time
party thereto, the lenders from time to time party thereto (the "Banks"),
Bankers Trust Company, as Administrative Agent (in such capacity and together
with any successors in such capacity, the "Administrative Agent") and Collateral
Agent, Deutsche Banc Alex. Xxxxx Inc., as Lead Arranger and Bank Manager (in
such capacities and together with any successors in such capacities, the "Lead
Arranger and Book Manager"), and X.X. Xxxxxx Securities Inc. and First Union
Securities, Inc., as Syndication Agents (in such capacities and together with
any successors in such capacities, the "Syndication Agents"), and Credit
Lyonnais New York Branch, as Documentation Agent (in such capacity and together
with any successors in such capacity, the Documentation Agent"), have entered
into a Credit Agreement, dated as of the date hereof, providing for the making
of Loans and the issuance of, and participation in, Letters of Credit as
contemplated therein (such agreement, as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, and including any
agreement extending the maturity of, or restructuring of, all or any portion of
the Indebtedness under such agreement or any successor agreement, the "Credit
Agreement").
2. The Borrower or any Subsidiary Guarantor may at any time and from time
to time enter into, or guarantee obligations of one or more other Credit Parties
under, one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Other Creditors.
3. It is a condition to each of the above-described extensions of credit
to the Borrower and the Subsidiary Guarantors that the Pledgor shall have
executed and delivered this Agreement.
4. The Pledgor desires to enter into this Agreement in order to satisfy
the condition described in the preceding paragraph.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, in consideration of the above-described premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor hereby makes the following representations and
warranties to the Collateral Agent for the benefit of the Secured Creditors and
hereby covenants and agrees with the Collateral Agent for the benefit of the
Secured Creditors as follows:
Section 1. SECURITY FOR OBLIGATIONS. This Agreement is made by the Pledgor
for the benefit of the Secured Creditors to secure the full and prompt payment
and performance when due (whether at the stated maturity, by acceleration or
otherwise in accordance with the terms of the Credit Agreement) of the
Obligations (as defined in that certain Security Agreement, dated as of the date
hereof, among the Borrower, the Subsidiary Guarantors and the Collateral Agent
for the benefit of the Secured Creditors (as the same may be amended, modified
or supplemented from time to time, the "Security Agreement")), whether
outstanding on the date of this Agreement or extended from time to time after
the date of this Agreement.
Section 2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used herein,
(i) the term "Stock" shall mean (x) with respect to corporations incorporated
under the laws of the United States or any State or territory thereof (each, a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock of whatever class at any time owned by the Pledgor of each Domestic
Corporation and (y) with respect to corporations that do not constitute Domestic
Corporations (each, a "Foreign Corporation"), all of the issued and outstanding
shares of capital stock of whatever class at any time owned by the Pledgor of
each Foreign Corporation, in each case described in clauses (i)(x) and (i)(y) of
this sentence, together with the certificates representing such shares and any
interest of such Pledgor in the entries on the books of any financial
intermediary pertaining to such shares, provided that, except as provided in the
last sentence of this Section 2, the Pledgor shall not be required to pledge
hereunder more than 65% of the total combined voting power of all classes of
capital stock of any Foreign Corporation entitled to vote, (ii) the term
"Interests" shall mean (x) with respect to limited liability companies,
partnerships or other entities (other than corporations) organized under the
laws of the United States or any state or territory thereof (each, a "Domestic
Non-Corporate Entity"), all of the issued and outstanding membership interests,
partnership interests or other interests of whatever class at any time owned by
the Pledgor of each Domestic Non-Corporate Entity and (y) with respect to
limited liability companies, partnerships or other entities (other than
corporations) that do not constitute Domestic Non-Corporate Entities (each, a
"Foreign Non-Corporate Entity"), all of the issued and outstanding membership
interests, partnership interests or other interests of whatever class at any
time owned by the Pledgor of each Foreign Non-Corporate Entity, in each case
described in clauses (ii)(x) and (ii)(y) of this sentence, together will all
rights, privileges, authority and powers of the Pledgor in and to each such
Domestic Non-
-2-
Corporate Entity or under the membership, partnership or other operative
agreement of each such entity, and the certificates, instruments and agreements,
if any, representing such membership, partnership or other equity interests;
provided that, except as provided in the last sentence of this Section 2, the
Pledgor shall not be required to pledge hereunder more than 65% of the total
combined voting power of all classes of interests of any Foreign Non-Corporate
Entity entitled to vote, and (iii) the term "Notes" shall mean (x) all
promissory notes at any time issued to the Pledgor by any of its Subsidiaries
together with all certificates or instruments evidencing such promissory notes
and all proceeds thereof, and all accessions thereto and substitutions therefore
and (y) except as provided in the last sentence of this Section 2, the Pledgor
shall not be required to pledge hereunder any promissory notes issued to the
Pledgor by any Subsidiary of the Pledgor which is a Foreign Corporation or
Foreign Non-Corporate Entity. If and to the extent that the Collateral Agent
receives or holds stock certificates representing more than 65% of the total
combined voting power of all classes of capital stock or other interests of any
Foreign Corporation or Foreign Non-Corporate Entity entitled to vote, the
Collateral Agent agrees to act as bailee and custodian for the benefit of the
Pledgor with respect to any portion of such capital stock or other interests
representing more than 65% of the total combined voting power of all classes of
capital stock or other interests of any Foreign Corporation or Foreign
Non-Corporate Entity entitled to vote except as otherwise provided in the last
sentence of this Section 2. As used herein, the term "Securities" shall mean all
of the Stock, Interests and Notes. The Pledgor represents and warrants, as to
the stock of corporations, interests in non-corporate entities and promissory
notes owned by the Pledgor, that on the date hereof (a) the Stock consists of
the number and type of shares of the stock of the corporations as described in
Part I of Schedule A hereto; (b) such Stock constitutes that percentage of the
issued and outstanding capital stock of the issuing corporation as is set forth
in Part I of Schedule A hereto; (c) the Notes consist of the promissory notes
described in Part II of Schedule A hereto;(d) the Interests consist of the type
of interests of the non-corporate entities as described in Part III of Schedule
A hereto; (e) such Interests constitute that percentage of the issued interests
of the issuing non-corporate entities as described in Part III of Schedule A
hereto; and (f) the Pledgor is the holder of record and sole beneficial owner of
the Stock, the Interests and the Notes and there exist no options or preemption
rights in respect of any of the Securities. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder which would
permit a pledge (x) of 66 2/3% or more (or would be adjusted to permit a pledge
of less than 66 2/3%) of the total combined voting power of all classes of
capital stock of any Foreign Corporation or Foreign Non-Corporate Entity
entitled to vote and (y) of any promissory note issued by any Subsidiary of the
Pledgor which is a Foreign Corporation or Foreign Non-Corporate Entity without
causing the undistributed earnings of such Foreign Corporation or Foreign
Non-Corporate Entity as determined for Federal income taxes to be treated as a
deemed dividend to the Pledgor for Federal income tax purposes and without
causing any other material adverse tax consequences to the Pledgor or any of its
Subsidiaries or Affiliates, then the 65% limitation set forth in clauses the
provisos to (i) and (ii) and the limitation set forth in clause (iii)(y) of this
Section 2 shall no longer be applicable (or shall be adjusted as appropriate)
and the Pledgor shall duly pledge and deliver to the Collateral Agent such of
the Securities not theretofore required to be pledged hereunder or the
Collateral Agent shall return such Securities as applicable.
-3-
Section 3. PLEDGE OF SECURITIES, ETC.
Section 3.1 Pledge. To secure the payment and performance when due of all
of the Obligations and for the purposes set forth in Section 1, the Pledgor (i)
hereby grants to the Collateral Agent for the benefit of the Secured Creditors,
a continuing first priority security interest in and to all of the right, title
and interest of such Pledgor in, to and under the Collateral (as hereinafter
defined), (ii) hereby pledges and deposits with the Collateral Agent the
Securities owned by the Pledgor on the date hereof, and delivers to the
Collateral Agent certificates therefor, duly endorsed in blank in the case of
promissory notes and accompanied by undated stock powers duly executed in blank
by the Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such Securities) in the case of capital stock, or
such other instruments of transfer as are reasonably acceptable to the
Collateral Agent and (iii) hereby collaterally assigns, transfers, hypothecates
and sets over to the Collateral Agent all of the Pledgor's right, title and
interest in and to such Securities (and in and to the certificates or
instruments evidencing such Securities) and the other Collateral, to be held by
the Collateral Agent as collateral security for the Obligations, upon the terms
and conditions set forth in this Agreement
Section 3.2 Subsequently Acquired Securities. If the Pledgor shall acquire
(by purchase, stock dividend or otherwise) any additional Securities at any time
or from time to time after the date hereof, the Pledgor will promptly thereafter
(and in any event within five Business Days) pledge and deposit such Securities
(or certificates or instruments representing Securities) as security with the
Collateral Agent and deliver to the Collateral Agent certificates or instruments
therefor, duly endorsed in blank in the case of promissory notes, and
accompanied by undated stock powers duly executed in blank by the Pledgor (and
accompanied by any transfer tax stamps required in connection with the pledge of
such Securities) in the case of capital stock, or such other instruments of
transfer as are reasonably acceptable to the Collateral Agent, and will promptly
thereafter (and in any event within five Business Days) deliver to the
Collateral Agent a pledge amendment duly executed by a principal executive
officer of the Pledgor substantially in the form of Exhibit 1 hereto (each, a
"Pledge Amendment"), describing such Securities and certifying that the same has
been duly pledged with the Collateral Agent hereunder. Subject to the last
sentence of Section 2, the Pledgor shall not be required at any time to pledge
hereunder any promissory notes issued to the Pledgor by a Subsidiary which is a
Foreign Corporation or a Foreign Non-Corporate Entity or more than 65% of the
total combined voting power of all classes of capital stock or other interests
of any Foreign Corporation or Foreign Non-Corporate Entity entitled to vote.
Section 3.3 Uncertificated Securities. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2, if any Securities (whether now owned
or hereafter acquired) are uncertificated securities, the Pledgor shall promptly
(and in any event within five Business Days) notify the Collateral Agent
thereof, and shall promptly (and in any event within ten Business Days) take all
actions reasonably required to perfect the security interest of the Collateral
Agent under applicable law. The Pledgor further agrees to take such actions as
the Collateral Agent deems reasonably necessary or desirable to effect the
foregoing (including, without limitation, causing the issuer of such
uncertificated Securities to execute and deliver to the Collateral Agent an
acknowledgment of the pledge of such Securities hereunder substantially in the
form of Exhibit 2 hereto) and to permit the Collateral Agent to exercise any of
its rights
-4-
and remedies hereunder, and agrees to provide an opinion of counsel reasonably
satisfactory to the Collateral Agent with respect to any such pledge of
uncertificated Securities promptly upon the reasonable request of the Collateral
Agent.
Section 3.4 Definitions of Pledged Stock; Pledged Notes; Pledged
Securities and Collateral. As used herein, "Collateral" shall mean all of the
following property of the Pledgor, whether now existing or owned or hereafter
arising or acquired:
(i) all Stock at any time pledged or required to be pledged
hereunder (hereinafter called the "Pledged Stock");
(ii) all Interests at any time pledged or required to be pledged
hereunder (hereinafter called the "Pledged Interests");
(iii) all Notes at any time pledged or required to be pledged
hereunder (hereinafter called the "Pledged Notes"; together with all
Pledged Stock and Pledged Interests are hereinafter called the "Pledged
Securities");
(iv) all dividends, cash, options, warrants, rights, instruments,
distributions, returns of capital or principal, income, interest, profits
and other property, interests (debt or equity) or proceeds, including as a
result of a split, revision, reclassification or other like change of the
Pledged Securities, from time to time received, receivable or otherwise
distributed to the Pledgor in respect of or in exchange for any or all of
the Pledged Securities (collectively, "Distributions");
(v) without affecting the obligations of the Pledgor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which any Person listed in
Schedule A hereto is not the surviving entity, all shares of each class of
the capital stock of the successor corporation or interests or
certificates of the successor limited liability company or partnership or
other entity owned by the Pledgor (unless such successor is the Pledgor
itself) formed by or resulting from such consolidation or merger; and
(vi) all Proceeds (as defined under the Uniform Commercial Code as
in effect in any relevant jurisdiction (the "UCC") or under other relevant
law) of any of the foregoing, and in any event, including, without
limitation, any and all (a) proceeds of any insurance, indemnity, warranty
or guarantee payable to the Collateral Agent or to the Pledgor from time
to time with respect to any of the Collateral, (b) payments (in any form
whatsoever) made or due and payable to the Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental
Authority (or any person acting under color of a Governmental Authority),
(c) instruments representing obligations to pay amounts in respect of any
Collateral, (d) products of the Collateral and (e) any and all other
amounts from time to time paid or payable under or in connection with any
of the Collateral, including any securities and moneys received and at any
time held by the Collateral Agent hereunder.
-5-
Section 4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Collateral
Agent shall have the right to appoint one or more sub-agents, at the cost and
expense of the Pledgor, for the purpose of retaining physical possession of the
Pledged Securities on behalf of the Collateral Agent, which may be held (in the
reasonable discretion of the Collateral Agent) in the name of the Pledgor,
endorsed or assigned in blank or in favor of the Collateral Agent or any nominee
or nominees of the Collateral Agent or a sub-agent appointed by the Collateral
Agent.
Section 5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default and the Collateral
Agent has given written notice to the Borrower in accordance with Section 10 of
the Credit Agreement to the extent such notice is required pursuant to Section
10 of the Credit Agreement, the Pledgor shall be entitled to vote any and all
Pledged Securities owned by it, and to give consents, waivers or ratifications
in respect thereof, provided that no vote shall be cast or any consent, waiver
or ratification given or any action taken which would violate, result in breach
of any covenant contained in this Agreement, the Credit Agreement or any other
Credit Document, or which is not permitted under any of the Credit Documents and
could reasonably be expected to have the effect of materially impairing the
value of the Collateral or any material part thereof or the position or
interests of the Collateral Agent or any Secured Creditor. All such rights of
the Pledgor to vote and to give consents, waivers and ratifications shall cease
in case an Event of Default has occurred and is continuing and the Collateral
Agent has given written notice to the Borrower in accordance with Section 10 of
the Credit Agreement to the extent such notice is required pursuant to Section
10 of the Credit Agreement, and Section 7 hereof shall become applicable.
Section 6. DIVIDENDS AND OTHER DISTRIBUTIONS. Any and all Permitted Tax
Distributions payable to the Pledgor and, unless and until there shall have
occurred and be continuing an Event of Default and the Collateral Agent has
given written notice to the Borrower in accordance with Section 10 of the Credit
Agreement to the extent such notice is required pursuant to Section 10 of the
Credit Agreement, all other cash dividends and distributions payable in respect
of the Pledged Stock and Pledged Interests and all payments in respect of the
Pledged Notes shall be paid to the Pledgor. The Collateral Agent shall be
entitled to receive directly, and to retain as part of the Collateral:
(a) all other or additional stock or securities or other interests
(other than cash) paid or distributed by way of dividend or otherwise, as
the case may be, in respect of the Pledged Securities;
(b) all other or additional stock or other securities or other
interests paid (other than cash) or distributed in respect of the Pledged
Securities by way of stock-split, spin-off, split-up, reclassification,
combination of shares or similar rearrangement; and
(c) all other or additional stock or other securities or other
interests or property (excluding cash) which may be paid in respect of the
Collateral by reason of any consolidation, merger, exchange of stock,
conveyance of assets, liquidation or similar corporate reorganization.
-6-
Nothing contained in this Section 6 shall limit or restrict in any way the
Collateral Agent's right to receive proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments which are received by the Pledgor contrary to the provisions of
this Section 6 and Section 7 shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of the
Pledgor and shall be forthwith paid or delivered over to the Collateral Agent as
Collateral in the same form as so received (with any necessary endorsement).
Section 7. REMEDIES IN CASE OF EVENTS OF DEFAULT. If there shall have
occurred and be continuing an Event of Default and the Collateral Agent has
given written notice to the Borrower in accordance with Section 10 of the Credit
Agreement to the extent such notice is required pursuant to Section 10 of the
Credit Agreement, then and in every such case, the Collateral Agent shall be
entitled to exercise all of the rights, powers and remedies (whether vested in
it by this Agreement, any other Credit Document, any Interest Rate Protection
Agreement or Other Hedging Agreement or by law) for the protection and
enforcement of its rights in respect of the Collateral, and the Collateral Agent
shall be entitled to exercise all the rights and remedies of a secured party
under the UCC and also shall be entitled, without limitation, to exercise the
following rights, which the Collateral Agent agrees to exercise in a
commercially reasonable manner:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 to the Pledgor (excluding Permitted Tax
Distribution, which shall be payable to and may be retained by the
Pledgor);
(b) to transfer all or any part of the Collateral into the
Collateral Agent's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note at such times and under the conditions set forth
therein;
(d) to vote all or any part of the Pledged Stock and/or Pledged
Interests (whether or not transferred into the name of the Collateral
Agent) and give all consents, waivers and ratifications in respect of the
Collateral and otherwise act with respect thereto in a commercially
reasonable manner as though it were the outright owner thereof (the
Pledgor hereby irrevocably constituting and appointing the Collateral
Agent the proxy and attorney-in-fact of the Pledgor, with full power of
substitution to do so upon the occurrence and during the continuance of an
Event of Default provided that the Collateral Agent has delivered written
notice to the Borrower in accordance with Section 10 of the Credit
Agreement to the extent such notice is required pursuant to Section 10 of
the Credit Agreement); and
(e) to sell, assign and deliver, or grant options to purchase, all
or any part of the Collateral, or any interest therein, at any public or
private sale, without demand of performance, advertisement or notice of
intention to sell or of the time or place of sale or adjournment thereof
or to redeem or otherwise (all of which are hereby waived by the Pledgor),
for cash, on credit or for other property, for immediate or future
delivery
-7-
without any assumption of credit risk, and for such price or prices and on
such terms as the Collateral Agent may determine in a commercially
reasonable manner, provided that at least 10 days' written notice of the
time and place of any such sale shall be given to the Pledgor. The
Collateral Agent shall not be obligated to make any such sale of
Collateral regardless of whether any such notice of sale has theretofore
been given. The Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder other than the
Pledgor's right to receive any excess proceeds or Collateral remaining
after payment in full of the Obligations, and all rights, if any, of
marshaling the Collateral and any other security for the obligations or
otherwise. At any such sale, unless prohibited by applicable law, the
Collateral Agent on behalf of the Secured Creditors may bid for and
purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Collateral Agent nor any
Secured Creditor shall be liable for failure to collect (except in such
cases where the Collateral Agent bids for and purchases all or part of the
Collateral) or realize upon any or all of the Collateral or for any delay
in so doing nor shall any of them be under any obligation to take any
action whatsoever with regard thereto.
Section 8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Collateral Agent provided for in this Agreement, the other Credit
Documents, or the Interest Rate Protection Agreements or Other Hedging
Agreements, or now or hereafter existing at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Collateral
Agent or any Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement, the other Credit Documents or the
Interest Rate Protection Agreements or Other Hedging Agreements or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Collateral Agent or any
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Collateral Agent or any Secured Creditor to exercise
any such right, power or remedy shall operate as a waiver thereof except as
required by applicable law. Unless otherwise required by the Credit Documents,
no notice to or demand on the Pledgor in any case shall entitle it to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Collateral Agent or any Secured Creditor to
any other or further action in any circumstances without notice or demand.
Section 9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent upon any sale or other disposition of the Collateral, together
with all other moneys received by the Collateral Agent hereunder, shall be
applied to the payment of the Obligations in the manner set forth in Section 7.4
of the Security Agreement.
Section 10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by
the Collateral Agent hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of the
Collateral Agent or the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication or nonapplication thereof.
-8-
Section 11. INDEMNITY. The Pledgor agrees to indemnify and hold harmless
the Collateral Agent, and each Secured Creditor and their respective successors,
assigns, employees, agents and servants (each, an "Indemnitee"; collectively,
the "Indemnities") from and against any and all claims, demands, losses,
judgments and liabilities (including liabilities for penalties) of whatsoever
kind or nature, and to reimburse each Indemnitee for all costs and expenses,
including reasonable attorneys' fees, growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under the other Credit Documents or the Interest Rate Protection
Agreement and Other Hedging Agreements (but excluding any claims, demands,
losses, judgments and liabilities or expenses to the extent finally judicially
determined to have been incurred by reason of gross negligence or willful
misconduct of such Indemnitee). If and to the extent that the obligations of the
Pledgor under this Section 11 are unenforceable for any reason, the Pledgor
hereby agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
Section 12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor agrees
that it will join with the Collateral Agent in executing and, at its own
expense, file and refile under the UCC or other applicable law such financing
statements, continuation statements and other documents in such offices as the
Collateral Agent may deem reasonably necessary and wherever required by law in
order to perfect and preserve the Collateral Agent's security interest in the
Collateral and hereby authorizes the Collateral Agent to file financing
statements and amendments thereto relative to all or any part of the Collateral
of the Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Collateral Agent such additional
conveyances, assignments, agreements and instruments as the Collateral Agent may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Collateral Agent its rights,
powers and remedies hereunder.
(b) The Pledgor hereby appoints the Collateral Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default and provided that the
Collateral Agent shall have delivered notice to the Pledgor in accordance with
Section 10 of the Credit Agreement, to the extent such notice is required
pursuant to Section 10 of the Credit Agreement, in the Collateral Agent's
reasonable discretion to take any action and to execute any instrument which the
Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes of this Agreement.
Section 13. THE PLEDGEE AS AGENT. The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed by the parties
hereto and each Secured Creditor, by accepting the benefits of this Agreement,
each such person acknowledges and agrees that the obligations of the Collateral
Agent as holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement. The Collateral Agent shall act hereunder
on the terms and conditions set forth herein and in Section 12 of the Credit
Agreement.
-9-
Section 14. TRANSFER BY THE PLEDGOR. The Pledgor will not sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Credit Agreement).
Section 15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. The
Pledgor represents and warrants that as of the date hereof (i) it is, or at the
time when pledged hereunder will be, the legal, record and beneficial owner of,
and has (or will have) good title to, all Collateral pledged by it hereunder,
subject to no Lien (except the Lien created by this Agreement and except
Permitted Liens); (ii) it has full corporate power, authority and legal right to
pledge all the Collateral pursuant to this Agreement; (iii) this Agreement has
been duly authorized, executed and delivered by the Pledgor and constitutes a
legal, valid and binding obligation of the Pledgor enforceable in accordance
with its terms, except to the extent that the enforceability hereof may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); (iv) except to the extent already obtained or made, no
consent of any other party (including, without limitation, any stockholder or
creditor of the Pledgor or any of its Subsidiaries) and no consent, license,
permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is required
to be obtained by the Pledgor in connection with (w) the execution, delivery or
performance of this Agreement, (x) the validity or enforceability of this
Agreement, (y) the perfection or enforceability of the Collateral Agent's
security interest in the Collateral or (z) except for compliance with or as may
be required by applicable securities laws, the exercise by the Collateral Agent
of any of its rights or remedies provided herein; (v) the execution, delivery
and performance of this Agreement will not violate any provision of any
applicable law or regulation or of any order, judgment, writ, award or decree of
any court, arbitrator or governmental authority, domestic or foreign, applicable
to the Pledgor, or of the Certificate of Incorporation or By-Laws of the Pledgor
or of any securities issued by the Pledgor or any of its Subsidiaries, or of any
material mortgage, indenture, lease, loan agreement, credit agreement or other
contract, agreement or instrument or undertaking to which the Pledgor or any of
its Subsidiaries is a party or which purports to be binding upon the Pledgor or
any of its Subsidiaries or upon any of their respective assets and will not
result in the creation or imposition of (or the obligation to create or impose)
any lien or encumbrance on any of the material assets of the Pledgor or any of
its Subsidiaries except as contemplated by this Agreement; (vi) all the shares
of the Stock and Interests have been duly and validly issued, are fully paid and
non-assessable (in the case of the Pledged Stock) and are subject to no options
to purchase or similar rights; (vii) each of the Pledged Notes to the extent
executed by the Borrower or any of its Subsidiaries constitutes, or when
executed by the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms, except to
the extent that the enforceability thereof may by limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law); and (viii) the pledge,
collateral assignment and, in the case of certificated securities, delivery to
the Collateral Agent of the Securities or, in the case of uncertificated
securities, the filing of a financing statement naming the Pledgor, as debtor,
and, the Collateral Agent, as Secured Party, in each case, pursuant to this
Agreement creates (i) a valid and perfected first priority Lien in the
Collateral in favor of the Collateral Agent for the
-10-
benefit of the Secured Creditors subject to no other Lien or to any agreement
purporting to grant to any third party a Lien on the property or assets of the
Pledgor which would include the Collateral. The Pledgor covenants and agrees
that it will take commercially reasonable steps to defend the Collateral Agent's
right, title and security interest in and to the Collateral against the claims
and demands of all persons whomsoever; and the Pledgor covenants and agrees that
it will have like title to and right to pledge any other property at any time
hereafter pledged to the Collateral Agent as Collateral hereunder and will
likewise take commercially reasonable steps to defend the right thereto and
security interest therein of the Collateral Agent and the Secured Creditors.
The Pledgor further represents, warrants and covenants that the exact
legal name, type of organization and jurisdiction of organization (together with
the organizational identification number, if any, issued by such jurisdiction to
the Pledgor) of the Pledgor is set forth in Schedule B hereto. The Pledgor shall
not "reincorporate" or "reorganize" or otherwise cause the Collateral to be
transferred to a Person incorporated or organized in another state except to the
extent (x) permitted pursuant to the provisions of the Credit Agreement, (y) it
shall have given to Collateral Agent not less than 30 days' prior written notice
(in the form of an officers' certificate) of its intention so to do clearly
describing such transaction and providing such other information in connection
therewith as Collateral Agent may reasonably request and (z) with respect to
such transaction, the Pledgor shall have taken all action reasonably
satisfactory to Collateral Agent to maintain the perfection and priority of the
security interest of Collateral Agent for the benefit of the Secured Parties in
the Collateral intended to be granted hereby.
Section 16. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of the
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (a) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from the Credit Documents, the Interest Rate Protection Agreements or Other
Hedging Agreements, or any other instrument or agreement referred to therein, or
any assignment or transfer of any thereof; (b) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such agreement
or instrument including, without limitation, this Agreement; (c) any furnishing
of any additional security to the Collateral Agent or its assignee or any
acceptance thereof or any release of any security by the Collateral Agent or its
assignee; (d) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (e) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to the Pledgor or any Subsidiary
of the Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not the
Pledgor shall have notice or knowledge of any of the foregoing.
Section 17. REGISTRATION, ETC. If at any time when the Collateral Agent
shall determine to exercise its right to sell all or any part of the Pledged
Securities pursuant to Section 7, and such Pledged Securities or the part
thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the
-11-
Collateral Agent may, in its sole and absolute discretion, sell such Pledged
Securities or part thereof by private sale in such manner and under such
circumstances as the Collateral Agent may deem reasonably necessary or advisable
in order that such sale may legally be effected without such registration.
Without limiting the generality of the foregoing, in any such event the
Collateral Agent, in its commercially reasonable discretion (i) may proceed to
make such private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Securities or part thereof shall have been
filed under such Securities Act, (ii) may approach and negotiate with a single
possible purchaser to effect such sale, and (iii) may restrict such sale to a
purchaser who will represent and agree that such purchaser is purchasing for its
own account, for investment, and not with a view to the distribution or sale of
such Pledged Securities or part thereof. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price which the Collateral Agent, in its
commercially reasonable discretion, in good xxxxx xxxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might be realized if the sale were deferred until after registration as
aforesaid.
Section 18. TERMINATION; RELEASE. (a) After the Termination Date (as
defined below), this Agreement and the security interest created hereby shall
terminate, and the Collateral Agent, at the request and expense of the Pledgor,
will execute and deliver to the Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, and will duly
assign, transfer and deliver to the Pledgor (without recourse and without any
representation or warranty other than a representation that the Collateral Agent
has not granted any lien on or security interest in the Collateral) such of the
Collateral as may be in the possession of the Collateral Agent or any of its
subagents and has not theretofore been sold or otherwise applied or released
pursuant to this Agreement, together with any proceeds of Collateral at the time
held by the Collateral Agent or any of its sub-agents hereunder. As used in this
Agreement, "Termination Date" shall mean the date upon which the Commitments and
all Interest Rate Protection Agreements or Other Hedging Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
have been repaid in full), all Letters of Credit have been terminated and all
obligations then owing have been paid in full.
(b) Notwithstanding anything to the contrary contained above, upon the
presentment of satisfactory evidence to the Collateral Agent in its sole
discretion that all obligations evidenced by any Pledged Note have been repaid
or otherwise satisfied or forgiven in full, and that any payments received by
the Pledgor were permitted to be received by the Pledgor pursuant to Section 6
hereof, the Collateral Agent shall, upon the request and at the expense of the
Pledgor, duly assign, transfer and deliver to the Pledgor (without recourse and
without any representation or warranty other than a representation that the
Collateral Agent has not granted any lien on or security interest in such
Pledged Note) such Pledged Note if same is then in the possession of the
Collateral Agent or any of its sub-agents and has not theretofore been sold or
otherwise applied or released pursuant to this Agreement.
(c) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 9.02 of the Credit Agreement or otherwise
released at the direction of the Required Banks (or all Banks if required by
Section 13.12 of the Credit Agreement) and the proceeds of such sale or sales or
from such release are applied in accordance with the provisions of Section
4.02(f) of the Credit Agreement, to the extent required to be so applied, the
Collateral
-12-
Agent, at the request and expense of the Pledgor, will duly assign, transfer and
deliver to the Pledgor (without recourse and without any representation or
warranty) such of the Collateral as is then being (or has been) so sold or
released and as may be in the possession of the Collateral Agent or any of its
sub-agents and has not theretofore been released pursuant to this Agreement.
(d) At any time that the Pledgor desires that Collateral be released as
provided in the foregoing subsection (a), (b) or (c), it shall deliver to the
Collateral Agent a certificate signed by its chief financial officer stating
that the release of the respective Collateral is permitted pursuant to such
subsection (a), (b) or (c).
(e) Collateral Agent shall have no liability whatsoever to any Secured
Creditor as the result of any release of Collateral by it in accordance with
this Section 18.
Section 19. NOTICES ETC. All such notices and communications hereunder
shall be telecopied or delivered by messenger or overnight courier service and
all such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when delivered
to the telegraph company, cable company or overnight courier, as the case may
be, or sent by telex or telecopier and when mailed shall be effective three
Business Days following deposit in the mail with proper postage, except that
notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent. All notices and other communications shall be
in writing and addressed as follows:
(a) if to the Pledgor, at:
(b) Coinmach Laundry Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxx Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
(b) if to the Collateral Agent, at:
Bankers Trust Company
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Deal Administration
(c) if to any Bank Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit
Agreement or (y) at such address as such Bank Creditor shall have
specified in the Credit Agreement; and
-13-
(d) if to any Other Creditor at such address as such Other Creditor
shall have specified in writing to the Pledgor and the Collateral Agent.
or at such other address as shall have been furnished in writing by any Person
described above to and received by the party required to give notice hereunder.
Section 20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Pledgor, the Collateral Agent (with the
written consent of the Required Banks or, to the extent required by Section
13.12 of the Credit Agreement, with the consent of each of the Banks); provided,
however, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Secured Creditors (and not
all Secured Creditors in a like or similar manner) shall require the written
consent of the Requisite Creditors (as defined below) of such affected Class.
For the purpose of this Agreement, the term "Class" shall mean each class of
Secured Creditors, i.e., whether (y) the Bank Creditors as holders of the Credit
Agreement Obligations or (z) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (x) with respect to the Credit Agreement
Obligations, the Required Banks and (y) with respect to the Other Obligations,
the holders of 51% of all obligations outstanding from time to time under the
Interest Rate Protection Agreements or Other Hedging Agreements.
Section 21. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings
in this Agreement are for purposes of reference only and shall not limit or
define the meaning hereof. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
Section 22. RECOURSE. This Agreement is made with full recourse to the
Pledgor and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgor contained herein, in the other Credit
Documents, in the Interest Rate Protection Agreements or Other Hedging
Agreements, and otherwise in writing in connection herewith or therewith.
-14-
IN WITNESS WHEREOF, the Pledgor and the Collateral Agent have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
COINMACH LAUNDRY CORPORATION,
as Pledgor
By /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: CFO
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Xxxx Xxx Xxxx
----------------------------
Name: Xxxx Xxx Xxxx
Title: Managing Director
-15-
SCHEDULE A
PLEDGOR: [----------------------------]
Part I. PLEDGED STOCK
Percentage of all
Outstanding Shares of
Name of Issuing Corporation Type of Shares Number of Shares Certificate No(s). Capital Stock of Issuer
--------------------------- -------------- ---------------- ------------------ -----------------------
Part II. PLEDGED NOTES
Name of Issuer Principal Amount Date of Issuance Interest Rate Maturity Date
-------------- ---------------- ---------------- ------------- -------------
Part III. PLEDGED INTERESTS
Name of Issuing Non- Percentage of all Outstanding
Corporate Entity Type of Interest Certificate No(s). Interest of Issuer
-------------------- ---------------- ----------------- -----------------------------
SCHEDULE B
Organizational
Type of Jurisdiction of Identification Chief Executive Principal Place of
Organization Organization Number Office Business
------------ --------------- -------------- --------------- ------------------
EXHIBIT 1
This Pledge Amendment, dated ______________, is delivered pursuant to
Section 3.2 of the Agreement referred to below. The undersigned hereby agrees
that this Pledge Amendment may be attached to the HOLDINGS PLEDGE AGREEMENT,
dated as of January 25, 2002, among the undersigned, certain other parties
identified therein and BANKERS TRUST COMPANY, as Collateral Agent (the
"Agreement" capitalized terms used herein and not defined have the meanings
ascribed to them in the Agreement) and that the Pledged Securities listed on
this Pledge Amendment shall be deemed to be and shall become part of the
Collateral and shall secure all Obligations.
_____________________________________,
as Pledgor
By:___________________________________
Name:
Title:
Part I. PLEDGED STOCK
Percentage of all
Outstanding Shares of
Name of Issuing Corporation Type of Shares Number of Shares Certificate No(s). Capital Stock of Issuer
--------------------------- -------------- ---------------- ----------------- -----------------------
Part II. PLEDGED NOTES
Name of Issuer Principal Amount Date of Issuance Interest Rate Maturity Date
-------------- ---------------- ---------------- ------------- -------------
Part III. PLEDGED INTERESTS
Name of Issuing Percentage of all Outstanding
Non-Corporate Entity Type of Interest Certificate No(s). Interest of Issuer
-------------------- ---------------- ------------------ ------------------------------
EXHIBIT 2
FORM OF ISSUER ACKNOWLEDGMENT
The undersigned hereby (i) acknowledges receipt of a copy of the HOLDINGS
PLEDGE AGREEMENT (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Agreement"; capitalized terms used herein but
not defined herein have the meanings given such terms in the Agreement), dated
as of January 25, 2002, among COINMACH CORPORATION, EACH OF THE GUARANTORS
LISTED ON THE SIGNATURE PAGES THERETO and BANKERS TRUST COMPANY, as collateral
agent (in such capacity, "Collateral Agent"), (ii) agrees promptly to note on
its books the security interests granted and confirmed under the Agreement in
[DESCRIBE SECURITIES] (the "Uncertificated Securities"), (iii) agrees that it
will comply with instructions of Collateral Agent with respect to the
Uncertificated Securities and all proceeds and other interest related thereto
constituting Collateral without further consent by applicable Pledgor, (iv)
agrees to notify Collateral Agent upon obtaining knowledge of any interest in
favor of any Person in the Uncertificated Securities or any related Collateral
that is adverse to the interest of Collateral Agent therein and (v) waives any
right or requirement at any time hereafter to receive a copy of the Agreement in
connection with the registration of any uncertificated Securities thereunder in
the name of Collateral Agent or its nominee or the exercise of voting rights by
Collateral Agent or its nominee.
[NAME OF ISSUER]
By:___________________________________
Name:
Title:
Note: This form should be signed by each issuer of uncertificated Pledged
Collateral.
