SECOND
AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT
between
XXXXXXXXX XXXXX CORPORATION
SWEET FACTORY GROUP, INC.
SWEET FACTORY, INC.
SF PROPERTIES, INC.
SF CANDY COMPANY, INC.
XXXXXXXXX XXXXX (CANADA) CORPORATION
as Pledgors and Debtors
and
THE BANK OF NEW YORK,
as trustee for the ratable benefit of the Holders
under that certain Indenture, dated as of July 2, 1997,
as amended by the Supplemental Indentures,
dated as of December 7, 1998, and June 8, 1999,
and as Pledgee and Secured Party
SECOND AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (as amended,
restated, modified or supplemented from time to time, the "SECURITY
AGREEMENT"), dated as of June 8, 1999, by and among Xxxxxxxxx Xxxxx
Corporation, an Illinois corporation, (the "COMPANY"), Sweet Factory Group,
Inc., a Delaware corporation ("GROUP"), Sweet Factory, Inc., a Delaware
corporation ("SWEET FACTORY"), SF Properties, Inc., a Delaware corporation,
("SF PROPERTIES"), SF Candy Company, a Delaware corporation ("SF CANDY
COMPANY"), Xxxxxxxxx Xxxxx (Canada) Corporation, a Canadian company
("XXXXXXXXX XXXXX (CANADA)" and, together with the Company, SF Candy Company,
Group, Sweet Factory and SF Properties, the "Pledgors" or the "DEBTORS," and
individually each a "PLEDGOR" or a "DEBTOR") and The Bank of New York, a New
York banking corporation, as Trustee (the "TRUSTEE", or the "PLEDGEE") for
the ratable benefit of the Holders (as defined in the Indenture). Group,
Sweet Factory, SF Properties, SF Candy Company and Xxxxxxxxx Xxxxx (Canada)
are herein referred to as the "GUARANTORS."
W I T N E S S E T H:
WHEREAS, pursuant to the Indenture, the Company shall issue and sell to
the Holders, an additional $40,000,000 in aggregate principal amount of its
10 1/4% Senior Secured Notes due 2004 (the "ADDITIONAL NOTES") of which
$130,000,000 in aggregate principal amount is outstanding (the "ORIGINAL
NOTES" and together with the Additional Notes, the "NOTES");
WHEREAS, each Pledgor is the legal and beneficial owner of the issued
and outstanding shares of capital stock of the companies (the "PLEDGED
SUBSIDIARIES"), if any, listed opposite its name on Schedule A hereto (as
same may from time to time be amended, modified, waived or supplemented,
"SCHEDULE A") and the other property interests and assets to be secured
hereunder;
WHEREAS, the Company and the Trustee entered into that certain Pledge
and Security Agreement, dated as of July 2, 1997, by and between the Company
and the Trustee (the "INITIAL SECURITY AGREEMENT") pursuant to which the
Company and the Restricted Subsidiaries (as defined in the Indenture), in
order to secure their obligations under the Indenture, granted to the
Pledgee, for the ratable benefit of the Holders, a security interest in and
continuing lien upon the Collateral (as defined below), and each Pledgor,
other than Xxxxxxxxx Xxxxx (Canada), entered into the Amended and Restated
Pledge and Security Agreement, dated as of December 7, 1998 (the "FIRST
AMENDED AND RESTATED SECURITY
AGREEMENT"), pursuant to which the Pledgors, other than Xxxxxxxxx Xxxxx
(Canada) granted to the Pledgee a security interest in and continuing lien
upon the Collateral;
WHEREAS, Xxxxxxxxx Xxxxx (Canada) has been requested to enter into this
Agreement to evidence, and each of the other Pledgors have been requested to
enter into this Agreement to reaffirm, the security interest in and
continuing lien upon the Collateral; and
WHEREAS, the Company, the Pledgors named therein and the Trustee have
agreed to amend and restate the First Amended and Restated Security Agreement
in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the premises and other benefits to
each Pledgor, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1 AMENDMENT AND RESTATEMENT. The First Amended and
Restated Security Agreement is hereby amended and restated in its entirety as
set forth in this Second Amended and Restated Pledge and Security Agreement.
Section 2 PLEDGE. As collateral security for the payment and
performance in full of all obligations of each Pledgor now or hereafter
existing or arising under, or in connection with, the Indenture, the Notes,
the Intellectual Property Security Agreement (as hereinafter defined), the
Guaranty (as defined in the Indenture) and this Agreement, as each may be
amended, modified, waived or supplemented from time to time (collectively,
the "OBLIGATIONS"), each Pledgor hereby pledges, assigns, transfers, sets
over and delivers unto the Pledgee, for the ratable benefit of the Holders,
and hereby grants to the Pledgee, for the ratable benefit of the Holders, a
continuing security interest in all of the right, title and interest of such
Pledgor in, to and under any and all of the following described property,
rights and interests, whether now owned or hereafter acquired (collectively,
the "COLLATERAL"):
(a) all of the issued and outstanding shares of capital
stock of the Pledged Subsidiaries owned by each Pledgor (the "PLEDGED
SECURITIES") and the certificate(s) representing such capital stock;
(b) all Proceeds and products of the Pledged Securities and
such other additional property, including without limitation, dividends,
distributions, cash,
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instruments and other property or securities, now or hereafter at any time or
from time to time received or receivable or otherwise distributed or
distributable in respect of or in exchange for any or all of the Pledged
Securities and such other additional property; and
(c) all Equipment, Fixtures and General Intangibles, and
all Insurance Policies, Contracts and Collateral Records to the extent
relating to any of the foregoing.
TO HAVE AND TO HOLD the Collateral, together with all rights, titles,
interests, powers, privileges and preferences pertaining or incidental
thereto, unto the Pledgee, for the ratable benefit of the Holders, and their
respective successors and assigns, PROVIDED, however, that there is expressly
excluded from the grant of a security interest hereunder (i) all Receivables
and (ii) all Inventory, all Receivables arising from the sale of such
Inventory, and all Contracts, Accounts, Chattel Paper, Collateral Records,
Documents, General Intangibles, Instruments, Receivables Records, Insurance
Policies and money arising from or relating to such Inventory or Receivables,
or the sale thereof.
Section 3 DEFINED TERMS. As used herein, all capitalized terms
not otherwise defined shall have the meanings set forth in the Indenture. The
following terms shall have the following meanings:
"Account Debtor" shall mean the Person who is obligated on a
Receivable.
"Accounts" shall mean any "account" as such term is defined in
Section 9-106 of the UCC and, with respect to Xxxxxxxxx Xxxxx (Canada)
only, as such term is defined in Section 1 of the PPSA.
"Agreement" has the meaning ascribed thereto in the introductory
paragraph hereof.
"Business Day" shall have the meaning set forth in the Indenture.
"Chattel Paper" shall mean "chattel paper" as such term is defined
in Section 9-105(b) of the UCC and, with respect to Xxxxxxxxx Xxxxx
(Canada) only, as such term is defined in Section 1 of the PPSA.
"Collateral" shall have the meaning assigned to it in Section 2
hereof.
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"Collateral Records" shall mean books, records, computer software,
computer printouts, customer lists, blueprints, technical
specifications, manuals, and similar items which relate to any
Collateral other than such items obtained under license or franchise
agreements which prohibit assignment or disclosure of such items.
"Contracts" shall mean written contracts, agreements, leases and
arrangements in which the Debtor has an interest or to which Debtor is a
party as any of the same may from time to time be amended, supplemented
or otherwise modified.
"Default" shall have the meaning set forth in the Indenture.
"Documents" shall mean any "document" as such term is defined in
Section 9-105(f) of the UCC and, with respect to Xxxxxxxxx Xxxxx
(Canada) only, any "document of title" as such term is defined in
Section 1 of the PPSA.
"Equipment" shall mean "equipment" as such term is defined in
Section 9-109(2) of the UCC and, with respect to Xxxxxxxxx Xxxxx
(Canada) only, as such term is defined in Section 1 of the PPSA,
including, without limitation, machinery, manufacturing equipment, data
processing equipment, computers, office equipment, furniture,
appliances, tools and other similar property.
"Event of Default" shall have the meaning set forth in the
Indenture.
"Financing Documents" shall mean the Indenture, the Notes, the
Intellectual Property Security Agreement, this Agreement and the Deed of
Hypothec, dated the date hereof, between the Trustee and the Bank of New
York.
"Fixtures" shall mean "fixtures" as such term is defined in
Section 9-313 of the UCC and, with respect to Xxxxxxxxx Xxxxx (Canada)
only, as such term is used in the PPSA.
"General Intangibles" shall mean "general intangibles" as such
term is defined in Section 9-106 of the UCC and, with respect to
Xxxxxxxxx Xxxxx (Canada) only, any "intangible" and any "security" as
such terms are defined in Section 1 of the PPSA, including in each case,
without limitation, rights to the payment of money (other than Accounts
and Receivables), trademarks, copyrights, patents, and contracts,
licenses and franchises (except in the case of licenses and
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franchises in respect of which the Assignor is the licensee or
franchisee if the agreement in respect of such license or franchise
prohibits by its terms any assignment or grant of a security interest)
limited and general partnership interests and joint venture interests,
federal income tax refunds (subject to the terms of the Tax Sharing
Agreement (as defined in the Indenture)), trade names (to the extent
classified as a "general intangible" or "intangible" under any
applicable law), distributions on certificated securities (as defined in
Section 8-102 of the UCC) and uncertificated securities (as defined in
Section 8-102 of the UCC), computer programs and other computer
software, inventions, designs, trade secrets, goodwill, proprietary
rights, customer lists, supplier contracts, sale orders, correspondence,
advertising materials, payments due in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of any property,
reversionary interests in pension and profit-sharing plans and
reversionary, beneficial and residual interests in trusts, credits with
and other claims against any Person, together with any collateral for
any of the foregoing and the rights under any security agreement
granting a security interest in such collateral.
"Indenture" shall mean that certain Indenture, dated as of July 2,
1997, between the Company and the Trustee, as amended by the
Supplemental Indenture, dated as of December 7, 1998, among the Company,
the Pledgors named therein and the Trustee, and as further amended by
the Second Supplemental Indenture, dated as of the date hereof, among
the Company, the Pledgors and the Trustee, as same may from time to time
be amended, modified, waived or supplemented.
"Instruments" shall mean "instruments" as such term is defined in
Section 9-105(1)(i) of the UCC and, with respect to Xxxxxxxxx Xxxxx
(Canada) only, any "instrument" as such term is defined in Section 1 of
the PPSA.
"Insurance Policies" shall mean any and all insurance policies
from time to time maintained by any of the Debtors (other than
third-party liability policies), to the extent covering the Collateral.
"Intellectual Property Security Agreement" shall mean that
certain Intellectual Property Security Agreement, dated as of July 2,
1997, between the Company, as assignor, and the Trustee, as assignee,
for the ratable benefit of the Holders, as amended by the Amended and
Restated Intellectual Property Security Agreement, dated as of December
7, 1998, among the Pledgors named therein, as
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assignors, and the Trustee, as assignee, as further amended by the
Second Amended and Restated Intellectual Property Security Agreement,
dated as of the date hereof, among the Company and the Pledgors, as
assignors, and the Trustee, as assignee, as same may from time to time
be further amended, modified, waived or supplemented.
"Inventory" shall mean "inventory" as such term is defined in
Section 9-109(4) of the UCC and, with respect to Xxxxxxxxx Xxxxx
(Canada) only, as such term is defined in Section 1 of the PPSA,
including without limitation, all goods (whether such goods are in the
possession of the Debtors or of a bailee or other Person for sale,
lease, storage, transit, processing, use or otherwise and whether
consisting of whole goods, spare parts, components, supplies, materials
or consigned or returned or repossessed goods), including without
limitation, all such goods which are held for sale or lease or are to be
furnished (or which have been furnished) under any contract of service
or which are raw materials, work in progress or finished goods.
"Lien" shall have the meaning set forth in the Indenture.
"Material Adverse Effect" shall mean a material adverse effect
upon (i) the business, operations, properties, assets, or condition
(financial or otherwise) of each Debtor (after giving effect to the
transactions contemplated by this Security Agreement and the other
Financing Documents), or (ii) the ability of each Debtor to perform (to
the extent that it is liable thereon) or of the Trustee to enforce, any
of the Obligations.
"Permitted Liens" shall have the meaning given to it in the
Indenture.
"Person" shall mean and include any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or
any government or political subdivision or agency, department or
instrumentality thereof.
"Pledged Securities" shall have the meaning specified in Section
2(a).
"Pledged Subsidiaries" shall have the meaning specified in the
second Whereas clause.
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"Possessory Collateral" shall mean, collectively, certificates
representing the Pledged Securities, and all such Instruments,
Documents, Chattel Paper and other tangible property of the Debtor which
is subject to the grant of the security interest herein contained,
perfection of which may be obtained by the Pledgee's taking possession
thereof.
"PPSA" shall mean the Personal Property Security Act or similar
legislation as in effect from time to time in the Province of Ontario.
"Proceeds" shall mean "proceeds" as such term is defined in
Section 9-306(1) of the UCC and, with respect to Xxxxxxxxx Xxxxx
(Canada) only, as such term is defined in Section 1 of the PPSA.
"Receivables" shall mean all rights to payment for Inventory sold,
whether or not earned by performance and all rights in respect of any
Account Debtor, including without limitation, all such rights in which
any Debtor has any right, title or interest by reason of the purchase
thereof by the Account Debtor, and including, without limitation, all
such rights constituting or evidenced by any Account, Chattel Paper,
Instrument, General Intangible, note, contract, invoice, purchase order,
draft, acceptance, book debt, intercompany account, security agreement,
or other evidence of indebtedness or security, and assigned,
hypothecated or held to secure any of the foregoing and the rights under
any security agreement granting a security interest in such Inventory or
Receivables, and all goods, the sale of which gave rise to any of the
foregoing, including, without limitation, all rights in any returned or
repossessed goods and unpaid seller's rights.
"Receivables Records" shall mean (a) all original copies of all
documents, instruments or other writings evidencing the Receivables, (b)
all books, correspondence, credit or other files, records, ledger sheets
or cards, invoices, and other papers relating to Receivables, including
without limitation all tapes, cards, computer tapes, computer discs,
computer runs, record keeping systems and other papers and documents
relating to the Receivables, whether in the possession or under the
control of any Debtor or any computer bureau or agent from time to time
acting for any Debtor or otherwise, (c) all evidences of the filing of
financing statements and the registration of other instruments in
connection therewith and amendments, supplements or other modifications
thereto, notices to other creditors or secured parties, and
certificates, acknowledgments, or other writings, including without
limitation lien search reports, from filing or other registration
officers, (d) all credit
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information, reports and memoranda relating thereto, and (e) all other
written or non-written forms of information related in any way to the
foregoing or any Receivable.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York, Illinois or California, as
applicable.
Section 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS. Each Pledgor jointly and severally hereby represents and warrants
(as of the date of execution hereof as to the Collateral existing on such
date and as of the date of acquisition as to the Collateral acquired
subsequently), covenants and agrees that:
(a) Each Pledgor is the legal and beneficial owner of the
Collateral of such Pledgor, holds the Collateral free and clear of all Liens,
except for the Lien and security interest granted hereunder and Permitted
Liens, and has not made and will not make or permit any other pledge,
assignment, mortgage, hypothecation or transfer of the Collateral except for
Permitted Liens. The Pledged Securities are not subject to any put, call,
option or other right in favor of any other Person whatsoever.
(b) The Pledged Securities, if any, have been duly
authorized and validly issued and are fully paid and non-assessable and
constitute such percentage of all of the issued and outstanding shares of
capital stock of the Pledged Subsidiaries as set forth on SCHEDULE A hereto.
(c) Upon the execution and delivery of this Agreement, the
delivery of the Possessory Collateral to the Pledgee, the filing of financing
statements in the jurisdictions set forth in SCHEDULE B hereto, the filing of
the Intellectual Property Security Agreement with the U.S. Patent and
Trademark Office and the U.S. Copyright Office and the making of appropriate
filings with the Canadian Intellectual Property Office, to the extent
required by applicable law, the Pledgee, for the ratable benefit of the
Holders, will have a valid, perfected, first priority security interest until
all of the Obligations have been indefeasibly paid and performed in full in
the Collateral, securing the indefeasible payment and performance in full of
the Obligations.
(d) Each Pledgor has the requisite corporate authority to
pledge and grant a security interest in the Collateral pursuant to this
Agreement and will defend its title thereto against the claims of all persons
whomsoever, and shall maintain and preserve the Lien and security interest
granted hereunder with respect to the Collateral
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until all of the Obligations have been indefeasibly paid and performed in
full, as long as this Agreement remains in full force and effect.
(e) Neither the execution, delivery or performance of this
Agreement, nor the transactions herein contemplated will (i) violate any
provision of the charter or bylaws of any Debtor or any of the Pledged
Subsidiaries, (ii) violate or cause a breach under the terms of any
agreement, indenture, mortgage, deed of trust, equipment lease, instrument or
other document to which any Pledgor or any Pledged Subsidiary is a party,
(iii) violate any law, order, rule or regulation or (iv) result in, or
require the creation or imposition of, any Lien (other than the Lien and
security interest contemplated hereby) upon or with respect to any of the
property now owned or hereafter acquired by any Debtor or any of its Pledged
Subsidiaries, which violations or conflicts would, singly or in the
aggregate, have a Material Adverse Effect.
(f) The Pledged Securities constitute the issued and
outstanding shares of capital stock of the Pledged Subsidiaries owned by each
Debtor and there are no outstanding options, warrants or other rights to
subscribe for or purchase any property described in Section 2(a) or any
notes, bonds, debentures or other evidences of indebtedness that (i) are at
any time convertible into capital stock of any of the Pledged Subsidiaries or
(ii) have, or at any time could by their terms have, voting rights with
respect to any matters affecting any Debtor or any of the Pledged
Subsidiaries.
(g) No consent or approval which has not been obtained
prior to the date hereof of any Person and no authorization, approval or
other action (other than delivery of the Possessory Collateral to the
Trustee, the filing of financing statements in the jurisdictions listed on
SCHEDULE B hereto, the filing of the Intellectual Property Security Agreement
with the U.S. Patent and Trademark Office, and the U.S. Copyright Office and
the making of appropriate filings with the Canadian Intellectual Property
Office, to the extent required by applicable law) by, and no notice to or
filing with any Person was or is necessary as a condition to the validity and
perfection of the pledge and security interest granted hereby, and such
pledge and security interest is effective to vest in the Pledgee the rights
of the Pledgee in the Collateral as set forth herein.
(h) Each Pledgor shall deliver to the Pledgee concurrently
with the execution of this Agreement or, to the extent acquired subsequent to
the date of execution hereof, immediately upon such Pledgor's acquisition
thereof: all certificates and instruments representing the Pledged Securities
and each other item of Possessory Collateral. Any and all Pledged Securities
delivered to the Pledgee shall be accompanied by undated,
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duly executed stock powers in blank and by such other instruments of transfer
or documents as the Pledgee may request. The Pledgee shall hold the
certificates representing the Pledged Securities delivered to it in custody.
(i) The Pledgee shall at all times have full and free
access during normal business hours to all of the books, correspondence and
records of each Pledgor relating to the Collateral and the Pledgee and its
representatives may examine the same, make abstracts therefrom and make
photocopies thereof, and each Pledgor agrees to render to the Pledgee and its
representatives, at such Pledgor's cost and expense, such clerical and other
assistance as may be reasonably requested by any of them with regard thereto.
(j) The Debtors shall not permit the Pledged Subsidiaries
to issue any securities other than the Pledged Securities.
(k) If, while this Agreement is in effect, any stock
dividend, stock split, reclassification, readjustment, reorganization,
merger, consolidation, exchange offer, tender offer or other change in the
capital structure, including the creation of any subscription or other rights
relating to the Pledged Securities, is declared or made by the Pledged
Subsidiaries, all substituted and additional securities or interests issued
with respect to the Collateral and evidenced by certificates shall be
endorsed in blank by such Pledgor promptly upon receipt thereof or otherwise
appropriately transferred to the Pledgee in negotiable form, and all
certificates or instruments evidencing such securities shall be delivered to
the Pledgee to be held under the terms of this Agreement in the same manner
as, and as a part of, the Collateral. All Pledged Securities shall be
evidenced by one or more certificates. Any securities that may be issued upon
exercise of any subscription or other rights relating to the Pledged
Securities shall be endorsed in blank and delivered to the Pledgee with any
necessary stock or other powers.
(l) Each Pledgor shall pay and discharge all taxes,
assessments and governmental charges or levies against any Collateral prior
to delinquency thereof and shall keep all Collateral free of all unpaid
charges whatsoever.
(m) Each Pledgor shall promptly notify a Responsible
Officer of the Pledgee (i) of any material adverse changes in any fact or
circumstance represented or warranted by such Pledgor with respect to any
portion of the Collateral (other than a de minimis portion of the
Collateral), (ii) of any actual or imminent material impairment of any
portion of the Collateral (other than a de minimis portion of the Collateral)
and (iii) of
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any claim, action or proceeding materially adversely affecting title to all
or any portion of the Collateral (other than a de minimis portion of the
Collateral).
(n) The chief executive office and principal place of
business of the Debtors is set forth on SCHEDULE C hereto. No Debtor shall
change its name or the name under which it does business or relocate its
principal place of business or chief executive office unless such Debtor (i)
gives 30 days' prior written notice to the Pledgee, which notice shall
specify such new name and/or address and (ii) delivers to the Pledgee all
financing statements, instruments and other documents necessary to maintain
the security interest granted to the Pledgee hereunder in connection with
such change or relocation.
(o) Each Debtor shall pledge to the Trustee, for the
ratable benefit of the Holders, all of the Capital Stock of each Restricted
Subsidiary (as defined in the Indenture) after the date hereof, and in
furtherance thereof, will execute and deliver an amendment to this Agreement,
or a new pledge and security agreement, in substantially the form of this
agreement, with such changes therein as the Trustee shall request, and such
other documents, instruments, agreements, certificates and financing
statements as may be necessary.
Section 5 RELEASE OF COLLATERAL. The Collateral shall not be
released from the Lien and security interest created hereunder and no
property shall be substituted for any of the Collateral except in accordance
with the provisions of the Indenture or Section 18 hereof. None of the
tangible Collateral shall be moved from the respective locations set forth in
SCHEDULE B hereto where such Collateral is located on the date hereof if such
move could affect the attachment, validity or perfection of the Pledgee's
security interest therein, unless such Pledgor shall have given the Pledgee
at least 30 days' prior notice in writing, and such Pledgor shall have taken
all actions required or reasonably requested by the Pledgee to preserve or
protect its security interest therein. The Pledgee shall return the physical
certificates and related stock powers and other Possessory Collateral in its
possession only when expressly required by this Agreement or the Indenture.
Section 6 VOTING RIGHTS, DIVIDENDS, ETC.
(a) Unless and until an Event of Default shall have
occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any
and all voting or consensual rights and powers, including
subscription rights,
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accruing to an owner of the Collateral or any part thereof for any
purpose not inconsistent with the terms of this Agreement or any
of the other Financing Documents; and
(ii) except as otherwise provided in this Agreement,
each Pledgor shall be entitled to retain and use any and all
dividends, distributions or other payments paid on or with respect
to the Pledged Securities that are permitted by the Indenture
(other than securities, which shall constitute additional
Collateral subject to this Agreement).
(b) Upon the occurrence and during the continuance of an
Event of Default, all rights of each Pledgor to exercise the voting or
consensual rights and powers which each Pledgor would otherwise be entitled
to exercise pursuant to Section 6(a)(i) shall automatically cease, and all
such rights shall thereupon become vested in the Pledgee, and the Pledgee for
the ratable benefit of the Holders, shall then have the sole and exclusive
right and authority to exercise all such voting and consensual rights and
powers.
(c) Unless and until an Event of Default shall have
occurred and be continuing, each Pledgor shall have the right and authority
to receive and retain as Collateral all dividends, distributions and other
payments paid on or with respect to the Pledged Securities. Upon the
occurrence and during the continuance of an Event of Default, the Pledgee
shall have the sole and exclusive right and authority to receive and retain
as Collateral all dividends, distributions and other payments paid on or with
respect to the Pledged Securities. Any and all money and other property paid
over to or received by the Pledgee pursuant to this Section 6(c) shall be
retained by the Pledgee as additional Collateral hereunder and shall be
administered and applied in accordance with the provisions of this Agreement.
All dividends and interest payments that are received by any Pledgor contrary
to the provisions of this Section 6(c) shall be received in trust for the
benefit of the Pledgee, shall be segregated from other funds of such Pledgor,
and shall be forthwith paid over to the Pledgee as Collateral in the same
form as so received (with any necessary endorsement).
Section 7 DEFAULT; REMEDIES.
(a) EXERCISE OF REMEDIES UNDER THE AGREEMENT. If an Event
of Default shall have occurred and be continuing, the Pledgee may, and within
3 Business Days of instructions from the Holders of a majority in principal
amount of the Notes outstanding, shall, commence the taking of such actions
(or refrain from taking actions)
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toward collection or enforcement of this Agreement and the Collateral (or any
portion thereof), including without limitation action toward foreclosure upon
any Collateral. If any Event of Default that was the basis for the
commencement of such action shall have been cured or waived, and, in the case
where there has been an acceleration, rescission of such acceleration shall
have occurred, any direction to the Pledgee to take any action shall be
deemed rescinded upon notification by the Holders of a majority in
outstanding principal amount of the Notes with respect to such Event of
Default.
(b) REMEDIES GENERALLY. If an Event of Default shall have
occurred and be continuing, then the Pledgee may:
(i) exercise any or all of its rights and remedies
hereunder and under any other instrument or agreement
securing, evidencing or relating to the Obligations or under
applicable laws (including all of the rights and remedies of
a secured creditor under the UCC and the PPSA);
(ii) retain possession of the Collateral;
(iii) sell, assign, transfer, or hire investment
advisers at the expense of the Pledgors to sell or dispose
of, in whole or in part, the Collateral at public or private
sale or sales, at any exchange, brokers board or any of
Pledgee's offices or elsewhere, for cash, credit or other
property, for immediate or future delivery, and, to the
extent permitted by applicable law, for such price or prices
and on such other terms as the Pledgee may deem and which
shall then be deemed for all purposes to be commercially
reasonable. Upon consummation of any such sale, the Pledgee
shall have the right to assign, transfer, endorse and
deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale
shall hold such property sold free from any claim or right
on the part of any Pledgor, and each Pledgor hereby waives
(to the fullest extent permitted by law) all rights of
redemption, stay or appraisal that such Pledgor now has or
may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. The Pledgee shall
give the Pledgors five (5) Business Days' written notice
(which the Pledgors agree shall be deemed to be reasonable
notification within the meaning of the applicable provisions
of the UCC), or such other notice, if any, as is required by
the PPSA, of the Pledgee's intention to make any such public
or private sale. Any such sale shall be held at such time or
times and at
13
such place or places as the Pledgee may fix. At any such
sale, the Collateral or any portion thereof, to be sold, may
be sold as an entirety or in separate portions, as the
Pledgee may, in its sole discretion, determine. The Pledgee
shall not be obligated to make any sale of the Collateral if
it shall determine not to do so, regardless of the fact that
notice of such sale may have been given. The Pledgee may,
without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and
place to which the same was so adjourned. In case the sale
of all or any part of the Collateral is made on credit for
future delivery, the Collateral so sold may be retained by
the Pledgee until the sale price is paid by the purchaser or
purchasers thereof, but the Pledgee shall not incur any
liability in case any such purchaser or purchasers shall
fail to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may be sold again
upon like notice. As an alternative to exercising the power
of sale herein conferred upon it, the Pledgee may proceed by
suit or suits at law or in equity to exercise its remedies
regarding the Collateral and sell the Collateral or any
portion thereof pursuant to judgment or decree of a court or
courts having competent jurisdiction. If the Pledgee shall
be required by law to dispose of the Collateral within a
period of time that does not permit the giving of notice to
the Pledgors as herein provided, the Pledgee need give the
Pledgors only such notice of disposition as shall be
reasonably practicable in view of such law; or
(iv) where permitted by law, take proceedings in any
court of competent jurisdiction for the appointment of a
receiver (which term shall include a receiver and manager)
of the Collateral or by appointment in writing appoint any
person to be a receiver of the Collateral and remove any
receiver so appointed by the Pledgee and appoint another in
his stead; and any such receiver appointed by instrument in
writing shall, to the extent permitted by applicable law or
to such lesser extent permitted, have all of the rights,
benefits and powers of the Pledgee hereunder or under the
PPSA or otherwise and without limitation have power (w) to
take possession of the Collateral, (x) to carry on all or
any part or parts of the business of the Pledgors, (y) to
borrow money required for the seizure, retaking,
repossession, holding, insuring, repairing, processing,
maintaining, protecting, preserving, preparing for
disposition, disposition of the
14
Collateral or for any other enforcement of this Agreement or
for the carrying on of the business of the Pledgors on the
security of the Collateral in priority to the security
interest created under this Agreement, and (z) to sell,
lease or otherwise dispose of the whole or any part of the
Collateral at public auction, by public tender or by private
sale, lease or other disposition either for cash or upon
credit, at such time and upon such terms and conditions as
the receiver may determine; provided that if any such
disposition involves deferred payment the Pledgee will not
be accountable for and the Pledgors will not be entitled to
be credited with the proceeds of any such disposition until
the monies therefor are actually received; and further
provided that any such receiver shall be deemed the agent of
the Pledgors and the Pledgee shall not be in any way
responsible for any misconduct or negligence of any such
receiver.
(c) REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Each
Pledgor agrees that if any Event of Default shall have occurred and be
continuing, then, in every such case and in addition to the rights and
remedies available to a secured party under any applicable provision of the
UCC, the PPSA or any other applicable law, the Pledgee may:
(i) personally, or by agents or attorneys, take
possession of the Collateral or any part thereof from any
Pledgor or, to the extent permitted by applicable law, any
other Person who then has possession of any part thereof,
with or without notice or process of law, and for that
purpose may, to the extent permitted by law, enter upon such
Pledgor's premises where any of the Collateral is located
and remove the same and use in connection with such removal
any and all services, supplies, aids and other facilities of
such Pledgor;
(ii) instruct the obligor or obligors on any
agreement, instrument or other obligation constituting
Collateral to make any payment or render any performance
required by the terms of such agreement, instrument or
obligation directly to the Pledgee or its designees; and
(iii) take possession of the Collateral or any part
thereof by directing such Pledgor to deliver the same to the
Pledgee at any place or places designated by such Pledgee
which is reasonably convenient to the parties, in which
event such Pledgor shall, at its own expense, forthwith
15
cause the same to be so delivered, it being understood that
such Pledgor's obligation so to deliver the Collateral is of
the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the
Pledgee shall be entitled to a decree requiring specific
performance by such Pledgor of such obligation.
(d) PREVENTING IMPAIRMENT OF THE COLLATERAL. Regardless of
whether or not there shall have occurred any Default or Event of Default, the
Pledgee may institute and maintain, or cause in the name of any Pledgor or
the Pledgee to be instituted and maintained, such suits and proceedings as
are necessary or as the Pledgee may be advised by counsel shall be necessary
or expedient to prevent any impairment of the Lien or security interest in,
or perfection of, the Collateral in contravention of the terms of this
Agreement. Each Pledgor agrees not to knowingly take or permit to be taken
any action that would impair the Collateral or any of Pledgee's rights in the
Collateral.
Section 8 PLEDGEE APPOINTED ATTORNEY-IN-FACT. Each Pledgor
hereby constitutes and appoints Pledgee its attorney-in-fact for the purpose
of carrying out the provisions of this Agreement and taking any action and
executing any instrument, including without limitation any financing
statement or continuation statement, that are necessary or advisable to
maintain the validity, perfection, priority and enforcement of the Lien and
security interest intended to be created hereunder or to accomplish the other
purposes hereof, which appointment is irrevocable and coupled with an
interest; PROVIDED, that nothing herein contained shall be construed as
requiring or obligating the Pledgee to take any such action with respect to
the Collateral or any part thereof or any property covered thereby, and no
action taken or omitted shall give rise to any defense, counterclaim or right
of action against the Pledgee unless Pledgee's actions are taken or omitted
to be taken with gross negligence or constitute willful misconduct.
Section 9 PURCHASE OF COLLATERAL BY PLEDGEE. At any public sale
of the Collateral, whether pursuant to power of sale or otherwise hereunder,
the Pledgee or any Holder may, to the extent permitted by applicable law, bid
for and purchase, free from any right of redemption, stay or appraisal (all
such rights being hereby waived and released by each Pledgor to the extent
permitted by law), the Collateral or any part thereof or an interest therein
and, upon compliance with the terms of such sale, may hold, retain, exploit,
resell or otherwise dispose of such property without further accountability
to any Pledgor for the Proceeds of such sale (except in the event that there
is a surplus of such Proceeds in excess of the Obligations, in which case,
the Pledgee shall account to such Pledgor for such surplus). Each Pledgor
will execute and deliver or cause to be executed
16
and delivered such instruments, endorsements, assignments, waivers,
certificates and other documents and take such further action as is necessary
or as the Pledgee shall request in connection with any such sale.
Section 10 DISPOSITION OF PROCEEDS. The Proceeds of any sale of
the whole or any part of the Collateral, together with any other monies held
by the Pledgee under the provisions of this Agreement, shall be applied by
the Pledgee in accordance with the terms of Section 6.10 of the Indenture.
Section 11 WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, EACH PLEDGOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE OF JUDICIAL HEARING IN CONNECTION WITH THE PLEDGEE'S TAKING
POSSESSION OF, OR THE PLEDGEE'S DISPOSITION OF, ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICES AND HEARINGS FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE PLEDGORS WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR
OF ANY OTHER JURISDICTION, and, to the full extent permitted by applicable
law, each Pledgor hereby further waives:
(a) all damages occasioned by such taking of possession or
disposition except any damages which are the direct result of the Pledgee's
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction; and
(b) all rights of redemption, appraisement, valuation,
stay, marshalling of assets, extension or moratorium, now or hereafter
existing at law or in equity, respecting the enforcement of this Agreement or
the sale or other disposition of the Collateral or any portion thereof.
Any sale of, or the exercise of any option to purchase, or any
other realization upon, any Collateral shall operate to divest all right,
title, interest, claim and demand, at law or in equity, of any Pledgor
therein and thereto, and shall be a perpetual bar both at law and in equity
against any Pledgor and against any and all persons claiming or attempting to
claim the Collateral so sold, optioned or realized upon, or any part thereof,
through and under any Pledgor. Each Pledgor shall remain liable for any
deficiency if the Proceeds of any sale or other disposition of the Collateral
are insufficient to satisfy the Obligations in full.
17
Section 12 REMEDIES CUMULATIVE; NO WAIVER. Each right, power and
remedy of the Pledgee provided for herein, in any other agreement pursuant to
which a Lien is created in favor of the Pledgee or now or hereafter existing
at law or in equity shall be cumulative and concurrent and shall be in
addition to every other such right, power or remedy of the Pledgee. No
failure on the part of the Pledgee to exercise, and no delay in exercising,
any such right, power or remedy shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right,
power or remedy. No notice to or demand on the Pledgors hereunder shall, of
itself, entitle any Pledgor to any other or further notice or demand in the
same, similar or other circumstances.
Section 13 FURTHER ASSURANCES. Each Pledgor agrees that it
shall, at its own expense, (a) promptly file or record such notices,
financing statements, continuation statements or other documents and take all
further actions as are necessary to perfect, maintain and protect the
perfection of the security interests of the Pledgee hereunder or to enable
the Pledgee to exercise and enforce its respective rights and remedies
hereunder with respect to the Collateral, and (b) perform such further acts
and things and execute and deliver to the Pledgee a file stamped copy (if
available) of such additional notices, financing statements, continuation
statements, conveyances, assignments, endorsements, agreements and
instruments as are necessary in connection with the administration and
enforcement of this Agreement or relative to the Collateral or any part
thereof or in order to assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
Section 14 INDEMNIFICATION AND EXPENSES.
(a) Each Pledgor, jointly and severally, agrees to fully
indemnify the Pledgee and each Holder from and against any and all claims,
damages, expenses (including taxes other than taxes based on the income of
the Pledgee) losses and liabilities growing out of or resulting from this
Agreement including without limitation, an Event of Default (including,
without limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting from Pledgee's or any such Holder's gross negligence,
or willful misconduct, as determined by a final judgment of a court of
competent jurisdiction.
(b) Each Pledgor will pay upon demand to the Pledgee the
amount of any and all out-of-pocket expenses, including the reasonable fees
and charges of its counsel and of any experts and agents, that the Pledgee
may incur in connection with (i) the negotiation, execution and enforcement
of this Agreement, (ii) the custody, preserva-
18
tion, use or operation of, or the sale of, collection from or other
realization upon, any of the Collateral, or (iii) the exercise or enforcement
of any of the rights of the Pledgee hereunder.
(c) The rights, privileges, protections and benefits given
to the Pledgee, including, without limitation, its rights to be indemnified,
are extended to, and shall be enforceable by, the Pledgee in each of its
capacities hereunder, and to each agent, custodian and other Persons employed
to act hereunder.
Section 15 REGISTRATION RIGHTS, ETC.
(a) If, upon or at any time after the occurrence of an
Event of Default, the registration of any of the Pledged Securities, or other
compliance with, the Securities Act or any similar law of any other
jurisdiction is required with respect to the Pledged Securities, the Pledgors
will use their best efforts to cause such registration or compliance to be
effectively made, at no expense to the Pledgee, and to continue any such
registration effective for such time as may be reasonably necessary in the
opinion of the Pledgee. The Pledgors will reimburse the Pledgee upon demand
for any expenses incurred by the Pledgee (including reasonable attorneys'
fees and expenses) incurred in connection therewith, which obligation to pay
such expenses shall be secured hereunder.
(b) If any Pledgor is unable to effect a public sale of any
or all of the Pledged Securities or if the Pledged Securities are to be sold
in one or more private sales, the Pledgee may limit such sales to a
restricted group of purchasers who will be obliged to agree, among other
things, to acquire such securities for their own account for investment and
not with a view to distribution or resale. Each Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable to the seller than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner. The Pledgee
shall be under no obligation to delay a sale of any of the Pledged Securities
for the period of time necessary to permit the issuer of such securities to
register such securities for public sale under the Securities Act or under
other applicable securities laws, even if such issuer would agree to do so.
(c) Each Pledgor further agrees to do, or use all
reasonable efforts to cause to be done, all other acts as may be necessary to
make such sale or sales of all or any part of the Collateral valid and
binding and comply with any and all applicable laws, rules and regulations
and orders and decrees of any and all courts having jurisdiction over
19
such sales, all at such Pledgor's expense. Each Pledgor further agrees that a
breach of any of the covenants contained in this Agreement will cause
irreparable injury to the Pledgee, as secured party, for which the Pledgee
would have no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this Section 15
shall be specifically enforceable against each Pledgor and, to the fullest
extent permitted by applicable law, each Pledgor waives and agrees not to
assert as a defense against an action for specific performance of such
covenants that (i) such Pledgor's failure to perform such covenants will not
cause irreparable injury to the Pledgee or (ii) the Pledgee has an adequate
remedy at law in respect of such breach.
Section 16 PLEDGORS' OBLIGATIONS ABSOLUTE. The liability of each
Pledgor under this Agreement shall remain in full force and effect without
regard to, and, unless otherwise expressly provided in any other Financing
Document, shall not be released, suspended, discharged, terminated or
otherwise affected by: (a) any change in the time, place or manner of payment
of all or any of the Obligations, or in any other term of any of the
Financing Documents, waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or any
other action or inaction under or in respect of the Financing Documents or
any assignment or transfer thereof; (b) any lack of validity or
enforceability, in whole or in part, of any of the Financing Documents; (c)
any furnishing of any additional security for the Obligations or any
acceptance thereof or any release or non-perfection of any security interest
in property; (d) any limitation on any party's liability or obligations under
any of the Financing Documents; (e) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other
like proceeding relating to any Pledgor, any Pledged Subsidiary or any other
Person, 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 such
Pledgor shall have notice or knowledge of any of the foregoing; or (f) any
exchange, release, amendment or waiver of, or consent to departure from any
other agreement pursuant to which a Lien is created in favor of the Pledgee.
Section 17 WAIVER. To the extent permitted by applicable law,
and except as otherwise expressly provided for herein, each Pledgor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to the Obligations and any requirement that the Pledgee protect,
secure, perfect or insure any security interest or any property subject
thereto or exhaust any right or take any action against any Pledgor or any
other Person; PROVIDED, HOWEVER, that the Pledgee shall in any event take
such reasonable care in the handling of any Possessory Collateral in its
possession as it takes with respect to its own property of a similar nature
in its possession.
20
Section 18 TERMINATION. Upon indefeasible payment and
performance in full and satisfaction of all of the Obligations, this
Agreement shall terminate and the Pledgee upon payment of all fees and
expenses owed to it and its agents and counsel shall assign and redeliver to
the Pledgors all of the Collateral hereunder that has not been sold, disposed
of, retained or applied by the Pledgee in accordance with the terms hereof.
Such reassignment and redelivery shall be without warranty by or recourse to
the Pledgee, and shall be at the expense of the Pledgors. At such time, this
Agreement shall no longer constitute a Lien upon or a grant of any security
interest in any of the Collateral, and the Pledgee shall, at such Pledgor's
expense deliver to such Pledgor written acknowledgment thereof and of
cancellation of this Agreement in a form reasonably requested by the Pledgor;
PROVIDED, HOWEVER, that this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned upon the insolvency,
bankruptcy or reorganization of any Pledgor or the Pledged Subsidiaries or
any other Person, all as though such payment had not been made.
Section 19 NOTICES. Any notices or other communications required
or permitted hereunder shall be made as provided in Section 11.2 of the
Indenture.
Section 20 BINDING AGREEMENT; ASSIGNMENT. This Agreement shall
be binding upon and inure to the benefit of each Pledgee, each Pledgor and
their respective successors and permitted assigns. Neither this Agreement nor
any interest herein or in the Collateral, or any part thereof, may be
assigned by any Pledgor, without the prior written consent of the Pledgee,
except as expressly permitted herein. The Pledgee shall have the right to
assign this Agreement only in accordance with the provisions of the
Indenture, and any such permitted assignee shall have all rights and powers
and obligations of the Pledgee hereunder.
Section 21 GOVERNING LAW. This Agreement shall be construed in
accordance with, and be governed by, the laws of the State of New York.
Section 22 AMENDMENTS. This Agreement may not be amended or
modified except in writing signed by the Pledgors and Pledgee.
Section 23 SEVERABILITY. In the event that any provision
contained in this Agreement shall for any reason be held to be illegal or
invalid under the laws of any jurisdiction, such illegality or invalidity
shall in no way impair the effectiveness of any
21
other provision hereof, or of such provision under the laws of any other
jurisdiction; PROVIDED, that in the construction and enforcement of such
provision under the laws of the jurisdiction in which such holding of
illegality or invalidity exists, and to the extent only of such illegality or
invalidity, this Agreement shall be construed and enforced as though such
illegal or invalid provision had not been contained herein.
Section 24. HEADINGS. Section headings used herein are inserted
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
Section 25. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
an original, and all of which shall together constitute but one and the same
instrument. A complete set of counterparts shall be lodged with Pledgors and
Pledgee.
Section 26. COOPERATION OF PLEDGED SUBSIDIARIES. The Pledgors
shall cause the Pledged Subsidiaries to take all actions necessary to
facilitate such Pledgor's compliance with the terms hereof.
Section 27. ACTIONS BY PLEDGEE. Whenever any provision of this
Agreement requires action, or waiver by or the consent of, the Pledgee, the
Trustee shall only be required to take or refrain from taking such action or
grant or withhold any waiver or consent when 25% in outstanding principal
amount of the Notes shall have instructed the Trustee in writing. References
to actions which may be taken by the Pledgee shall likewise be required when
25% in outstanding principal amount of the Notes shall have instructed the
Trustee in writing.
Section 28. NOTES EQUALLY AND RATABLY SECURED. Each Note will be
equally and ratably secured with each other Note hereunder, regardless of the
date of issuance of such Note.
Section 29. RELEASE OF PLEDGOR. If in accordance with the terms
and provisions of the Indenture, any Pledgor is designated by the Company to
be an Unrestricted Subsidiary, then such Pledgor will be released and
discharged from all of its obligations under its Guaranty of the Notes and
the Indenture.
22
Section 30. RIGHTS AND DUTIES OF PLEDGEE. The Pledgee hereunder
shall have the rights given and the duties imposed upon the Trustee under the
Indenture, and in cases of express conflict, the Indenture shall govern.
Section 31. LIMITATION ON DUTY OF PLEDGEE IN RESPECT OF
COLLATERAL; INDEMNIFICATION. (a) Beyond the exercise of reasonable care in
the custody thereof, the Pledgee shall have no duty as to any Collateral in
the possession or control of any agent or bailee or any income thereon or as
to preservation of rights against prior parties or any other rights
pertaining thereto and the Pledgee shall not be responsible for filing any
financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting
or maintaining the perfection of any security interest in such collateral.
The Pledgee shall be deemed to have exercised reasonable care in the custody
of the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not
be liable or responsible for any loss or diminution in the value of any of
the Collateral, by reason of the act or omission of any carrier, forwarding
agency or other agent or bailee selected by the Pledgee in good faith.
(b) The Pledgee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Liens in any of the Collateral,
whether impaired by operation of law or by reason of any action or omission
to act on its part hereunder, except to the extent such action or omission
constitutes negligence, bad faith or wilful misconduct on the part of the
Pledgee, for the validity or sufficiency of the Collateral or any agreement
or assignment contained therein, for the validity of the title of the Company
to the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral. The Pledgee shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of the
Financing Documents.
Section 32. EXCEPTION FOR LAST DAY OF LEASES. The security
interest granted hereby does not and shall not extend to, and Collateral shall
not include, the last day of the term of any lease or sub-lease of real property
in Canada, oral or written, or any agreement therefor, now held or hereafter
acquired by any Pledgor, but upon the security interest granted hereby becoming
enforceable any Pledgor shall stand possessed of such last day in trust to
assign the same as the Pledgee shall direct.
[signature pages follow]
23
IN WITNESS WHEREOF, each of the parties hereto has caused this Pledge
and Security Agreement to be duly executed and delivered as of the date first
above written.
XXXXXXXXX XXXXX CORPORATION
as Debtor and Pledgor
By: /s/ XXX X. XXXXXXXX
Name: Xxx X Xxxxxxxx
Title: President and Chief Operating Officer
SWEET FACTORY GROUP, INC.
as Debtor and Pledgor
By: /s/ XXX X. XXXXXXXX
Name: Xxx X Xxxxxxxx
Title: President and Chief Operating Officer
SWEET FACTORY, INC.
as Debtor and Pledgor
By: /s/ XXX X. XXXXXXXX
Name: Xxx X Xxxxxxxx
Title: President and Chief Operating Officer
SF PROPERTIES, INC.
as Debtor and Pledgor
By: /s/ XXX X. XXXXXXXX
Name: Xxx X Xxxxxxxx
Title: President and Chief Operating Officer
SF CANDY COMPANY
as Debtor and Pledgor
By: /s/ XXX X. XXXXXXXX
Name: Xxx X Xxxxxxxx
Title: President and Chief Operating Officer
XXXXXXXXX XXXXX (CANADA) CORPORATION
as Debtor and Pledgor
By: /s/ XXX X. XXXXXXXX
Name: Xxx X Xxxxxxxx
Title: President and Chief Operating Officer
THE BANK OF NEW YORK, for
the ratable benefit of the Holders,
as Secured party and Pledgee
By: /S/ XXXX XXXXXXXX
Name: Xxxx XxXxxxxx
Title: Assistant Vice President
SCHEDULE A
PLEDGED SECURITIES OWNED BY XXXXXXXXX XXXXX CORPORATION
----------------------------- ----------------- ---------------------- ----------- -------------- --------------------------
Percentage
Stock Class of Stock Par Number of
Issuer Stock Certificate Value of Outstanding
Number Shares Shares
Sweet Factory Group, Inc. Common C-44 $.001 100 100%
Xxxxxxxxx Xxxxx (Canada) Common 2 N/A 1 100%
Corporation
PLEDGED SECURITIES OWNED BY SWEET FACTORY GROUP, INC.
----------------------------- ----------------- ---------------------- ----------- -------------- --------------------------
Percentage
Stock Class of Stock Par Number of
Issuer Stock Certificate Value of Outstanding
Number Shares Shares
Sweet Factory, Inc. Common C-1 $.001 100 100%
SF Properties, Inc. Common C-1 $.001 100 100%
SF Candy Company Common C-002 $.001 100 100%
PLEDGED SECURITIES OWNED BY SWEET FACTORY, INC.
----------------------------- ----------------- ---------------------- ----------- -------------- --------------------------
Percentage
Stock Class of Stock Par Number of
Issuer Stock Certificate Value of Outstanding
Number Shares Shares
NONE
PLEDGED SECURITIES OWNED BY SF PROPERTIES, INC.
----------------------------- ----------------- ---------------------- ----------- -------------- --------------------------
Percentage
Stock Class of Stock Par Number of
Issuer Stock Certificate Value of Outstanding
Number Shares Shares
NONE
PLEDGED SECURITIES OWNED BY SF CANDY COMPANY
----------------------------- ----------------- ---------------------- ----------- -------------- --------------------------
Percentage
Stock Class of Stock Par Number of
Issuer Stock Certificate Value of Outstanding
Number Shares Shares
NONE
PLEDGED SECURITIES OWNED BY XXXXXXXXX XXXXX (CANADA) CORPORATION
----------------------------- ----------------- ---------------------- ----------- -------------- --------------------------
Percentage
Stock Class of Stock Par Number of
Issuer Stock Certificate Value of Outstanding
Number Shares Shares
NONE
SCHEDULE B
Xxxxxxxxx Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxx Corporation
0000-00 Xxxx Xxx Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxx Corporation
0000 Xxxxxxxxxx Xxxx
Xxx 000
Xxxxxxxx, XX 00000
Xxxxxxxxx Xxxxx (Canada) Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Sweet Factory Group, Inc.
Sweet Factory, Inc.
SF Properties, Inc.
SF Candy Company
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Sweet Factory Group, Inc.
Sweet Factory, Inc.
SF Properties, Inc.
SF Candy Company
Xxxxxxx, XX 00000
Ontario (with respect to filing of financing documents only)
SCHEDULE C
Xxxxxxxxx Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Sweet Factory Group, Inc.
Sweet Factory, Inc.
SF Properties, Inc.
SF Candy Company
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxx (Canada) Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
