EXHIBIT 10.60
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT made this 27th day of February, 2003, by and
between SYNDICATED FOOD SERVICE INTERNATIONAL, INC., a Florida corporation
(hereinafter referred to as "Xxxxxxx"), and OLD NATIONAL BANK, a national
banking association, having offices at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Bank").
WTTNESSETH:
WHEREAS Bank has or intends to extend certain credit facilities to
Xxxxxxx Food Service, Inc. ("Xxxxxxx") in accordance with the terms of that
certain Credit Agreement as of even date herewith, together with such other
credit and collateral documents as may be required by the Bank; and
WHEREAS, the Bank has or intends to extend certain credit facilities to
Syndicated Bloomington I, LLC as evidenced by or contemplated by that certain
Mortgage Loan Note dated as of even date herewith (Xxxxxxx and Syndicated
collectively referred to as "Borrower") and the credit and collateral documents
evidencing the credit facilities extended by the Bank to the Borrower
collectively referred to as the "Loan Documents"); and
WHEREAS, the Pledgor will benefit from the credit facilities to be
extended to the Borrowers as contemplated by the Loan Documents and other
financial accommodations from the Bank and desires to provide the pledge
contemplated by this Agreement as further consideration and inducement to the
Bank to provide the credit facilities contemplated by the Loan Documents and to
collateralize Pledgor's obligations under those certain Unconditional Unlimited
Continuing Guaranties, each dated as of the date hereof executed by Pledgor for
the benefit of Bank (hereinafter collectively referred to as "Guaranty"); and
WHEREAS, it is a condition precedent to the obligations of the Bank
under the Loan Documents that the Pledgor shall execute and deliver this Pledge
Agreement and to perform hereunder.
NOW, THEREFORE, in consideration of the foregoing, the Pledgor hereby
agrees with the Bank as follows:
1. Definitions. All terms used in this Agreement which are not
defined herein, but are defined in the Loan Documents shall have the respective
meanings ascribed to them therein. The term "Pledged Collateral" as used herein
shall mean and include all of the issued and outstanding shares of the capital
stock or other securities owned by Pledgor or voting trust certificates or other
documents of any kind evidencing any and all ownership or other interests of
Pledgor in such securities or any certificates of membership interests,
deposits, instruments, or securities of any other entities, as listed on
Schedule I annexed hereto (and any supplemental schedules attached hereto or
delivered to the Bank from time to time), and any other stock, certificates or
securities that have been delivered or are delivered in the future to the Bank
by or on behalf of Pledgor and any and all proceeds thereof, now or hereafter
owned or acquired by the Pledgor.
2. Pledge Rights and Remedies.
(a) As collateral security for the due payment and performance of
all indebtedness and other liabilities and obligations, whether now existing or
hereafter arising, of Pledgor to the Bank arising under the Guaranty, and all
instruments, agreements and documents executed, issued, and delivered pursuant
thereto, including, without limitation, this Agreement (all hereinafter
collectively referred to as
"Obligations"), the Pledgor hereby pledges, assigns, hypothecates, delivers, and
sets over to the Bank all of its right, title and interest in and to the Pledged
Collateral, and hereby grants to the Bank a security interest in all of
Pledgor's right, title and interest in and to the Pledged Collateral and in the
proceeds thereof.
(b) If the Pledgor shall become entitled to receive or shall
receive any stock or voting trust certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase, or reduction of capital), option or rights,
whether as an addition to, in substitution of, or in exchange for any Pledged
Collateral, or otherwise, the Pledgor shall accept any such instruments as the
Bank's agent, shall hold them in trust for the Bank, and shall deliver them
forthwith to the Bank in the exact form received, with the Pledgor's endorsement
when necessary, and/or appropriate stock powers duly executed in blank, to be
held by the Bank, subject to the terms hereof, as further collateral security
for the Obligations.
(c) After the occurrence of any Event of Default defined or
specified in the Loan Documents, any or all shares of the Pledged Collateral
held by the Bank hereunder may, at the option of the Bank, be registered in the
name of the Bank or its nominee as pledgee, and the Bank or its nominee may
thereafter, without notice, exercise all available voting and corporate rights
at any meeting of any corporation issuing any of the shares or other securities
included in the Pledged Collateral and exercise any and all rights of
conversion, exchange, subscription, or any other rights, privileges, or options
pertaining to any of the Pledged Collateral as if it were the absolute owner
thereof, including, without limitation, the right to receive dividends payable
thereon and the right to exchange, at its discretion, any and all of the Pledged
Collateral upon the merger, consolidation, reorganization, recapitalization, or
other readjustment of any corporation issuing any of such securities or upon the
exercise by any such issuer of any right, privilege, or option pertaining to any
of the Pledged Collateral, and in connection therewith, to deposit and deliver
any and all of the Pledged Collateral with any committee, depository, transfer
agent, registrar or other designated agency upon such terms and conditions as it
may determine, all without liability except to account for property actually
received by it, but the Bank shall have no duty to exercise any of the aforesaid
rights, privileges, or options and shall not be responsible for any failure or
omission to do so or delay in so doing.
(d) In the event of the occurrence of any Event of Default defined
or specified in the Loan Documents, the Bank shall have the right to require
that all cash dividends and distributions payable with respect to any part of
the Pledged Collateral be paid to the Bank to be held by the Bank as additional
security hereunder until applied to the Obligations.
(e) In the event of the occurrence of any Event of Default defined
or specified in the Loan Documents, the Bank, without demand of performance or
other demand, advertisement, or notice of any kind (except the notice specified
below of the time and place of public or private sale) to or upon the Pledgor or
any other person or entity, including without limitation, any trustee(all and
each of which demands, advertisements and/or notices are, to the extent
permitted by law, hereby expressly waived), may forthwith collect, receive,
appropriate, and realize upon the Pledged Collateral, or any part thereof,
and/or may forthwith sell, assign, give an option or options to purchase,
contract to sell, or otherwise dispose of and deliver the Pledged Collateral, or
any part thereof, in one or more parcels at public or private sale or sales, in
whatever order the Bank may select, at any exchange, broker's board or at any of
the Bank's offices or elsewhere at such prices and on such terms (including,
without limitation, a requirement that any purchaser of all or any part of the
Pledged Collateral shall be required to purchase the securities constituting the
Pledged Collateral for investment and without any intention to make a
distribution thereof) as it may deem best, for cash or on credit or for future
delivery without assumption
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of any credit risk, with the right to the Bank or any purchaser upon any such
sale or sales, whether public or private, to purchase the whole or any part of
the Pledged Collateral so sold, free of any right or equity of redemption in
the Pledgor, which right or equity is hereby expressly waived and released.
(f) The proceeds of any collection, recovery, receipt,
appropriation, realization, sale or other disposition, shall be applied as
follows:
First, to the reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care,
safekeeping, or otherwise of any and all of the Pledged Collateral or
in any way relating to the rights of the Bank hereunder, including
reasonable attorneys' fees and legal expenses;
Second, to the satisfaction of the Obligations in such order
as the Bank may determine in its sole discretion;
Third, to the payment of any other amounts required by
applicable law; and
Fourth, to the Pledgor, to the extent of the surplus proceeds, if any.
(g) The Bank need not give more than five (5) Business Days'
notice of the time and place of any public sale or of the time after which a
private sale may take place and such notice shall be deemed to be reasonable
notification of such matters.
(h) In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization, sale or other disposition are insufficient
to pay all amounts to which the Bank is legally entitled, the Pledgor will be
liable, jointly and severally with all guarantors or parties obligated to the
Bank under the documents evidencing the obligations for any deficiency together
with interest thereon at the rate prescribed in the Loan Documents and the
reasonable fees of any attorneys employed by the Bank to collect such
deficiency.
3. Rights of Pledgor. Unless and until an Event of Default as
defined in the Loan Documents shall have occurred and be continuing, the Pledgor
shall be entitled:
a. to vote all or any part of the Pledged Collateral at any and
all shareholder meetings of the issuer thereof and to execute consents in
respect thereof, and to consent to, ratify, or waive notice of any or all
shareholder meetings of the issuer thereof with the same force and effect as if
this Pledge Agreement had not been made and, if necessary and upon the receipt
of the written request from the issuer thereof and/or the Pledgor, the Bank
shall from time to time execute and deliver appropriate proxies for that
purpose, provided that the Pledgor covenants and agrees not to vote the Pledged
Collateral in a manner which would create an Event of Default or Unmatured Event
of Default under any of the Loan Documents, and
b. to receive and collect or to have paid over all dividends
declared or paid on the Pledged Collateral, except (i) dividends or
distributions constituting stock dividends, (ii) dividends or distributions in
kind, or (iii) liquidating dividends (either partial or complete), provided that
any and all such excepted dividends and distributions shall constitute
additional collateral for the purposes of this Pledge Agreement and shall be
delivered and pledged with the Bank in accordance with Section 2(b) hereof.
4. Representations. The Pledgor represents and warrants that:
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(a) Pledgor is, as of the date hereof, the legal and beneficial
owner of all of the Pledged Collateral;
(b) All of the shares and interests evidenced by the Pledged
Collateral have been duly and validly issued, are fully paid and non-assessable,
and are owned by the Pledgor free and clear of any pledge, mortgage,
hypothecation, lien, charge, encumbrance, or any security interest in such
shares or the proceeds thereof except for the security interest granted to the
Bank hereunder; and
(c) Upon delivery of the Pledged Collateral to the Bank or an
agent for the Bank, this Agreement creates and grants a valid first lien on and
perfected security interest in the Pledged Collateral and the proceeds thereof,
subject to no prior security interest, lien, charge, or encumbrance and subject
to no other security interest, lien, charge, or encumbrance or to any agreement
purporting to grant to any third party a security interest in the property or
assets of the Pledgor which would include the Pledged Collateral.
(d) No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required to
be obtained or made by Pledgor either (i) for the pledge by the Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor, or (ii) for the exercise by the
Pledgee of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement,
subject to applicable state and securities laws.
(e) There are no restrictions on the transfer of the Pledged
Collateral except such, if any, as appear on the face or back of the
certificates or other evidence of the Pledged Collateral or are imposed by
operation of law, and there are no options, warrants or rights pertaining
thereto. The Pledgor has the right to transfer the Pledged Collateral free of
any encumbrances and without the consent of the creditors of the Pledgor, any
persons, or any governmental agency whatsoever.
(f) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with or
performance of the terms and conditions of this Agreement by the Pledgor is
prevented by, limited by, conflicts with or will result in the breach or
violation of or a default under the terms, conditions or provisions of (i) any
mortgage, security agreement, indenture, evidence of indebtedness, loan or
financing agreement, trust agreement, stockholder agreement, or other agreement
or instrument to which the Pledgor is a party or by which it is bound or (ii)
any provision of law, any order of any court or administrative agency or any
rule or regulation applicable to the Pledgor, subject to applicable state and
federal securities laws.
(g) Any assignee of all or any portion of the Pledged Collateral
is entitled to receive payments with respect thereto without any defense,
counterclaim, set-off, abatement, reduction, recoupment or other claim arising
out of the actions of the Pledgor.
(h) There are no actions, suits or proceedings (whether or not
purportedly on behalf of the Pledgor) pending or, to the best knowledge of the
Pledgor, threatened affecting the Pledgor that involve the Pledged Collateral.
(i) All consents or approvals, if any, required as a condition
precedent to or in connection with the due and valid execution, delivery and
performance by the Pledgor of this Agreement have been obtained, subject to
applicable state and federal securities laws.
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5. Covenants.
(a) The Pledgor hereby covenants that so long as the Obligations
shall be outstanding and unpaid, in whole or in part, the Pledgor will not
without the prior written consent of the Bank sell, convey,- or otherwise
dispose of any shares of the Pledged Collateral or any interest therein, nor
will the Pledgor create, incur, or permit to exist any pledge, mortgage, lien,
charge, encumbrance, or any security interest whatsoever with respect to any of
the Pledged Collateral or the proceeds thereof other than that created or
permitted by the Loan Documents or hereby.
(b) The Pledgor warrants and will defend the Bank's right, title,
special property and security interest in and to the Pledged Collateral against
the claims of any person, firm, corporation, or other entity.
6. Sale of Pledged Collateral.
(a) If the Bank shall determine to exercise its right to sell any
part of the Pledged Collateral, and if in the opinion of counsel for the Bank it
is necessary to have the Pledged Collateral, or that portion thereof to be sold,
registered under the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), the Pledgor will use his best efforts to cause each issuer of
shares included in the Pledged Collateral contemplated to be sold to execute and
deliver, and cause the directors and officers of each issuer to execute and
deliver, all at the Pledgor's expense, all such instruments and documents, and
to do or cause to be done all such other acts and things as may be necessary to
register the Pledged Collateral, or that portion thereof to be sold, under the
provisions of the Securities Act and to cause the registration statement
relating thereto to become effective and to remain effective for a period of one
year from the date of the first public offering of the Pledged Collateral, or
that portion thereof so to be sold, and to make all amendments thereto and/or to
the related prospectus which, in the opinion of the Bank or its counsel, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto; to cause each such issuer to comply with the
provisions of the securities laws and regulations of any jurisdiction which the
Bank shall designate; and to cause each such issuer to make available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) covering a period of twelve months, but not more than eighteen
months, beginning with the first month after the effective date of any such
registration statement, which earnings statement will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) The Pledgor acknowledges that a breach of any of the covenants
contained in subparagraph 6(a) above will cause irreparable injury to the Bank,
that the Bank shall have no adequate remedy at law in respect of such breach
and, as a consequence, the covenants of the Pledgor contained in the said
subparagraph 6(a) shall be specifically enforceable against the Pledgor, and the
Pledgor hereby waives, and shall not assert, any defenses against an action for
specific performance of such covenants, except for a defense that no Event of
Default defined or specified in the Loan Documents has occurred.
(c) Notwithstanding the foregoing, the Pledgor recognizes that the
Bank may be unable to effect a public sale of all or a part of the Pledged
Collateral, and may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obligated to agree, among other
things, to acquire such securities for their own account, for investment and not
with a view to the distribution or resale thereof. The Pledgor acknowledges that
any such private sales may be at places and on terms less favorable to the
seller than if sold at public sales and agrees that such private sales shall be
deemed to have been made in a commercially reasonable manner, and that the Bank
has no obligation to delay sale
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of any such 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.
7. Cooperation. The Pledgor shall at any time and from time to
time, upon the request of the Bank, execute and deliver such further documents
and do such further acts and things as the Bank may reasonably request in order
to effect the purposes of this Agreement, including, without limitation,
delivering to the Bank on the date hereof or at any time hereafter irrevocable
proxies in respect of the Pledged Collateral in the form of Exhibit A annexed
hereto.
8. General.
(a) Beyond the exercise of reasonable care to assure the safe
custody of the Pledged Collateral while held hereunder, the Bank shall have no
duty or liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Collateral upon surrendering it to the
Pledgor.
(b) No course of dealing between the Xxxxxxx and the Bank, nor any
failure to exercise, nor any delay in exercising, on the part of the Bank, any
right, power, or privilege, whether now existing or hereafter arising hereunder
or under the Loan Documents, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power, or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege.
(c) The rights and remedies herein provided, and provided in the
Guaranties and the Loan Documents, are cumulative and are in addition to, and
not exclusive of, any rights or remedies provided by law, including, without
limitation, the rights and remedies of a secured party under the Uniform
Commercial Code.
(d) The provisions of this Agreement are severable, and if any
clause or provision shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Agreement in any jurisdiction.
(e) This Agreement shall inure to the benefit of, and be binding
upon, the successors and assigns of the parties hereto. Notwithstanding the
foregoing, the Pledgor shall not have the right to assign or delegate any of its
rights or obligations hereunder without the prior written consent of the Bank,
and any purported assignment or delegation in the absence of such consent shall
be void.
(f) This Agreement has been executed and delivered in the State of
Indiana. This Agreement shall be governed by and construed in accordance with
the laws of the State of Indiana.
(g) The Pledgor recognizes that the Bank has relied on the pledge
and security interest granted herein by the Pledgor in extending credit and
making the financial accommodations to the Borrowers, and the Pledgor agrees
that such reliance by Bank shall be sufficient consideration for this pledge.
(h) This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
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(i) The Section headings used herein are for convenience only and
shall not be read or construed as limiting the substance or generality of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Pledge Agreement to be
duly executed and delivered as of the day and year first written above.
SYNDICATED FOOD SERVICE OLD NATIONAL BANK
INTERNATIONAL, INC. "Bank
"Pledgor"
By: /s/ Xxxxxx X. Xxxxx By /s/ Xxxxxx X. XxxXxxXxxxx
------------------------------- ----------------------------------
Xxxxxx X. Xxxxx, Xx., Xxxxxx X. XxxXxxXxxxx,
Chief Executive Officer Vice President
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Schedule I to Pledge Agreement dated
February 27, 2003 from Syndicated Food
Service International, Inc. to Old National
Bank
LIST OF PLEDGED COLLATERAL
Number/Class
Of
Name of Issuer Shares/Units
-------------- ------------
Xxxxxxx Food Service, Inc. 1,000
Xxxxxxx Transportation, Inc. 1,000
Syndicated Bloomington I LLC Uncertificated 100%
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned does hereby make, constitute and appoint OLD NATIONAL
BANK (the "Bank") and each of the Bank's officers and employees, its true and
lawful attorneys, for it and in its name, place and stead, to act as its proxy
in respect of all of the [SHARES OF CAPITAL STOCK] [MEMBERSHIP INTERESTS]
of_____________________________, a Delaware [COMPANY] [LIMITED LIABILITY
COMPANY] (hereinafter referred to as the "Company"), which the undersigned now
or hereafter may own or hold, including, without limitation, the right, on
behalf of the undersigned, to vote for the transaction of any and all business
that may come before such meeting, or at any adjournment thereof, including,
without limitation, the right to vote for (i) the consolidation merger or other
consolidation with or into the Company, (ii) the sale of all or any part of the
assets of the Company and/or (iii) the liquidation and dissolution of the
Company; giving and granting to its said attorneys full power and authority to
do and perform each and every act and thing whether necessary or desirable to be
done in and about the premises, as fully as the undersigned might or could do if
personally present with full power of substitution, appointment and revocation,
hereby ratifying and confirming all that the undersigned's said attorneys shall
do or cause to be done by virtue hereof.
This Proxy is given to the Bank and to its officers and employees in
consideration of one or more loans of even date herewith by the Bank to Xxxxxxx
Food Service, Inc. and Syndicated Bloomington I LLC (the "Borrower"), and in
order to carry out the covenant of the undersigned contained in a certain Pledge
Agreement of even date herewith with the Bank. This Proxy is coupled with an
interest, shall not be revocable or revoked by the undersigned, shall be binding
upon successors and assigns of the undersigned until the payment in full of all
of the indebtedness, obligations or liabilities to the Bank of the undersigned,
and may be exercised only after a default in payment of principal or interest
when due of any such indebtedness or the occurrence of any other Event of
Default as defined or specified in the Loan Documents referred to in the Pledge
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy
this __day of February, 2003.
_____________________________________
[Name]
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