EXHIBIT 10.3
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September 30, 1996, by E&S HOLDINGS
CORPORATION, a Delaware corporation (the "Borrower"), in favor of BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as administrative agent
(in such capacity, the "Administrative Agent") for the various financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated as of September 30, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lenders,
BofA, as Swing Line Lender, as Fronting Lender and as Administrative Agent for
the Lenders, together with Xxxxxxx Xxxxx Capital Corporation, as Documentation
Agent for the Lenders, Nationsbank, N.A. (South), as Syndication Agent for the
Lenders, and the several financial institutions specifically identified as
Co-Agents on the signature pages thereof, for the ratable benefit of the Secured
Creditors (as defined below).
W I T N E S S E T H:
WHEREAS, (a) pursuant to the Credit Agreement, the Lenders have severally
agreed to make Credit Extensions (such capitalized term, and other capitalized
terms used in these recitals, to have the meanings set forth, or defined by
reference, in Section 1) to the Borrower upon the terms of and subject to the
conditions set forth therein and (b) one or more Lenders (including those of its
Affiliates that have appointed the Administrative Agent to act on such
Affiliate's behalf hereunder on terms substantially similar to those set forth
in Article X of the Credit Agreement, including the provisions relating to
exculpation and indemnification therein) may from time to time enter into Swap
Contracts with the Borrower (such Affiliates, together with such Lenders, being
referred to herein as "Secured Creditors");
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective Credit Extensions to the Borrower under the Credit
Agreement that the Borrower shall have executed and delivered this Pledge
Agreement to the Administrative Agent for the ratable benefit of the Secured
Creditors; and
WHEREAS, the Borrower is the legal and beneficial owner of the shares of
stock (the "Pledged Shares") described on Schedule I hereto (as the same may be
supplemented from time to time in accordance with the requirements of the Credit
Agreement) and issued by the corporations named therein, which Pledged Shares
constitute the percentage of all the issued and outstanding shares of capital
stock of such corporations identified on such Schedule I;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and the
Secured Creditors to enter into Swap Contracts with the Borrower, the Borrower
hereby agrees with the Administrative Agent, for the ratable benefit of the
Secured Creditors, as follows:
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1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) "Obligations" means, collectively, (i) the unpaid principal of and
interest on the Loans and all other obligations and liabilities of the Borrower
to the Administrative Agent or any Lender (including interest accruing at the
then-applicable rate provided in the Credit Agreement after the maturity of the
Loans and interest accruing at the then-applicable rate provided in the Credit
Agreement after, or which would have accrued but for, the filing or commencement
of, or which would have accrued but for the filing or commencement of, any
Insolvency Proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter incurred, that may arise under, out of, or in connection with, the
Credit Agreement, the other Loan Documents, the Letters of Credit, the
Acceptances or any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including all reasonable fees
and other charges of counsel to the Administrative Agent or to the Lenders that
are required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document) and (ii) all obligations and liabilities
of the Borrower to any Secured Creditor, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred, that may
arise under, out of, or in connection with, any Swap Contract or any other
document made, delivered or given in connection therewith.
(c) "Pledge Agreement" means this Pledge Agreement, as amended, amended
and restated, supplemented or otherwise modified from time to time.
(d) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Pledge Agreement shall refer to this Pledge Agreement
as a whole and not to any particular provision of this Pledge Agreement, and
Section references are to Sections of this Pledge Agreement unless otherwise
specified. The word "including" is not limiting and means "including without
limitation".
(e) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Grant of Security. The Borrower hereby transfers, assigns and pledges
to the Administrative Agent for the ratable benefit of the Secured Creditors,
and hereby grants to the Administrative Agent for the ratable benefit of the
Secured Creditors, a security interest in, the following, whether now owned or
existing or hereafter acquired or existing (collectively, the "Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, any other issued and outstanding shares of the "issuers" listed on
Schedule I, and any interest of the Borrower in the entries on the books of any
financial intermediary pertaining to the Pledged Shares or any such other
shares, and all dividends, cash, warrants, rights, instruments and
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other property or proceeds from time to time received, receivable or otherwise
distributed in respect or of in exchange for any or all of the Pledged Shares
and any such other shares; and
(b) to the extent not covered by clause (a) above all proceeds of any or
all of the foregoing Collateral. For purposes of this Pledge Agreement, the term
"proceeds" includes whatever is receivable or received when Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes, without limitation,
proceeds of any indemnity or guaranty payable to the Borrower or the
Administrative Agent from time to time with respect to any of the Collateral.
3. Security for Obligations. This Pledge Agreement secures the payment of
all Obligations of the Borrower. Without limiting the generality of the
foregoing, this Pledge Agreement secures the payment of all amounts that
constitute part of the Obligations and would be owed by the Borrower to the
Administrative Agent or the Secured Creditors under the Loan Documents and any
Swap Contracts but for the fact that they are unenforceable or not allowable due
to the existence of an Insolvency Proceeding involving the Borrower.
4. Delivery of the Collateral. All certificates or instruments, if any,
representing or evidencing the Collateral shall be promptly delivered to and
held by or on behalf of the Administrative Agent pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
undated instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have the right, at any time after the occurrence and
during the continuance of an Event of Default and without notice to the
Borrower, to transfer to or to register in the name of the Administrative Agent
or any of its nominees any or all of the Pledged Shares.
5. Representations and Warranties. The Borrower represents and warrants as
follows:
(a) The Pledged Shares set forth on Schedule I hereto represent on the
date hereof the percentage of all the issued and outstanding capital stock of
each direct Subsidiary of the Borrower as identified on such Schedule I.
(b) The Borrower is the legal and beneficial owner of the Collateral, as
indicated on Schedule I, pledged or assigned by the Borrower hereunder free and
clear of any Lien, except for the lien and security interest created by this
Pledge Agreement or liens permitted under Section 8.
(c) As of the date of this Pledge Agreement, the Pledged Shares pledged by
the Borrower hereunder have been duly authorized and validly issued and are
fully paid and non-assessable.
(d) The execution and delivery by the Borrower of this Pledge Agreement
and the pledge of the Collateral pledged by the Borrower hereunder pursuant
hereto create a valid and perfected first priority security interest in the
Collateral, securing the payment of the Obligations.
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(e) The Borrower has full power, authority and legal right to pledge all
the Collateral pledged by the Borrower pursuant to this Pledge Agreement and
will defend its and the Administrative Agent's title or interest thereto or
therein (and in the proceeds thereof) against any and all Liens (other than the
Lien of this Pledge Agreement), however arising, and all persons whomsoever.
(f) The Borrower has furnished to the Administrative Agent true and
complete copies as of the date hereof of the charter and/or other organizational
documents of, and the bylaws of, each Subsidiary any of the shares of capital
stock of which constitute Pledged Shares, and the Borrower is not a party as of
the date hereof to any shareholder agreement or other arrangement affecting the
voting rights of any capital stock of any such Subsidiary.
6. Further Assurances. The Borrower agrees that at any time and from time
to time, at the expense of the Borrower, it will promptly execute and deliver
all further instruments and documents, and take all further action, that may be
necessary, or that the Administrative Agent may reasonably request, in order to
perfect and protect any pledge, assignment or security interest granted or
purported to be granted hereby or to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any Collateral.
7. Voting Rights; Dividends and Distributions; Etc. (a) So long as no
Event of Default shall have occurred and be continuing:
(i) The Borrower shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Collateral or any part thereof for
any purpose not prohibited by the terms of this Pledge Agreement or the other
Loan Documents.
(ii) The Administrative Agent shall execute and deliver (or cause to
be executed and delivered) to the Borrower (at the Borrower's expense) all such
proxies and other instruments as the Borrower may reasonably request for the
purpose of enabling the Borrower to exercise the voting and other rights that it
is entitled to exercise pursuant to paragraph (i) above.
(b) Subject to paragraph (c) below, the Borrower shall be entitled to
receive and retain and use, free and clear of the Lien of this Pledge Agreement,
any and all dividends, distributions and interest paid in respect of the
Collateral; provided, however, that any and all dividends and other
distributions in equity securities included in the Collateral shall be, and
shall be forthwith delivered to the Administrative Agent to hold as, Collateral
and shall, if received by the Borrower, be received in trust for the benefit of
the Administrative Agent, be segregated from the other property or funds of the
Borrower and be forthwith delivered to the Administrative Agent as Collateral in
the same form as so received (with any necessary endorsement).
(c) Upon written notice to the Borrower by the Administrative Agent
following the occurrence and during the continuance of an Event of Default:
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(i) all rights of the Borrower to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be
entitled to exercise pursuant to Section 7(a)(i) shall cease, and all such
rights shall thereupon become vested in the Administrative Agent, which shall
thereupon have the sole right to exercise or refrain from exercising such voting
and other consensual rights during the continuance of such Event of Default;
(ii) all rights of the Borrower to receive the dividends,
distributions, principal and interest payments that the Borrower would otherwise
be authorized to receive and retain pursuant to Section 7(b) shall cease, and
all such rights shall thereupon become vested in the Administrative Agent, which
shall thereupon have the sole right to receive and hold as Collateral such
dividends and interest payments during the continuance of such Event of Default;
(iii) all dividends, principal and interest payments that are
received by the Borrower contrary to the provisions of Section 7(b) shall be
received in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of the Borrower and shall forthwith be paid over to
the Administrative Agent as Collateral in the same form as so received (with any
necessary endorsements); and
(iv) in order to permit the Administrative Agent to receive all
dividends and other distributions to which it may be entitled under Section
7(b), to exercise the voting and other consensual rights that it may be entitled
to exercise pursuant to Section 7(c)(i), and to receive all dividends,
distributions, principal and interest payments and other distributions that it
may be entitled to receive under Section 7(c)(ii), the Borrower shall, if
necessary, upon written notice from the Administrative Agent, from time to time
execute and deliver to the Administrative Agent, appropriate proxies, dividend
payment orders and other instruments as the Administrative Agent may reasonably
request.
8. Transfers and Other Liens; Additional Collateral; Documents; Etc. The
Borrower shall:
(a) not (i) except as permitted by the Credit Agreement, sell or otherwise
dispose of, or grant any option or warrant with respect to, any of the
Collateral or (ii) create or suffer to exist any consensual Lien upon or with
respect to any of the Collateral, except for the Lien under this Pledge
Agreement, provided that in the event the Borrower sells assets permitted by the
Credit Agreement in accordance with the terms of the Credit Agreement and such
assets are or include Collateral, the Administrative Agent shall (at the expense
of the Borrower) release such Collateral to the Borrower free and clear of the
lien and security interest under this Pledge Agreement concurrently with the
consummation of such sale;
(b) (i) except as may be permitted by the Credit Agreement, cause each
issuer of Pledged Shares not to issue any stock or other securities in
substitution for the Pledged Shares issued by such issuer, except to the
Borrower, (ii) pledge hereunder, immediately upon the issuance thereof, any and
all additional shares of stock or other securities of each such issuer of
Pledged Shares and (iii) not permit the issuance of any additional shares of
stock of such
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issuer unless permitted by the Credit Agreement and, if so permitted, any
proceeds thereof required to be applied under the Credit Agreement are so
applied in accordance therewith or, if any such additional shares are issued to
the Borrower, such additional shares are immediately pledged hereunder upon the
issuance thereof; and
(c) not amend, supplement or otherwise modify, and shall not permit the
amendment, supplementation or other modification of, the charter or other
organizational documents or the bylaws of any Subsidiary any of the capital
stock of which constitute Pledged Shares in any respect that would be materially
adverse to the interests or position of the Administrative Agent or the Secured
Creditors hereunder or in connection herewith, and shall not, and shall not
permit any Subsidiary any of the capital stock of which constitutes Pledged
Shares to, enter into or agree to any shareholder or other agreement that would
be materially adverse to the interests or position of the Administrative Agent
or the Secured Creditors hereunder or in connection herewith;
provided, however, that, notwithstanding any provision to the contrary contained
herein or in any other Loan Document, the Borrower shall, at all times during
the period from the date hereof until the payment in full in cash of the
Obligations, the termination of all Commitments, the termination or expiration
of all Letters of Credit and Swap Contracts and the maturing of all Acceptances,
have pledged to the Administrative Agent for the ratable benefit of the Secured
Creditors pursuant to the terms of this Pledge Agreement all of the outstanding
shares of the capital stock of each direct Restricted Subsidiary of the
Borrower, provided that, in the event such Subsidiary is a Foreign Subsidiary,
the Borrower shall not be required to have so pledged to the Administrative
Agent more than 65% of the outstanding shares of the capital stock of such
Subsidiary.
9. Administrative Agent Appointed Attorney-in-Fact. The Borrower hereby
irrevocably appoints the Administrative Agent as the Borrower's
attorney-in-fact, with full authority in the place and stead of the Borrower and
in the name of the Borrower or otherwise to take any action and to execute any
instrument, in each case after the occurrence and during the continuance of an
Event of Default, that the Administrative Agent may deem reasonably necessary or
advisable to accomplish the purposes of this Pledge Agreement, including to
receive, endorse and collect all instruments made payable to the Borrower
representing any dividend, interest payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same and
otherwise to collect on any Collateral or enforce the rights of the
Administrative Agent with respect thereto. The Borrower hereby acknowledges,
consents and agrees that this power of attorney is irrevocable and coupled with
an interest.
10. The Administrative Agent's Duties. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Pledged Shares, whether or not the Administrative
Agent or any Secured
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Creditor has or is deemed to have knowledge of such matters, or as to the taking
of any necessary steps to preserve rights against any parties or any other
rights pertaining to any Collateral. The Administrative Agent shall be deemed to
have exercised reasonable care in the custody and preservation of any Collateral
in its possession if such Collateral is accorded treatment substantially equal
to that which the Administrative Agent accords its own property or if the
Administrative Agent decides to take any action for such purpose that has been
requested by the Borrower (it being understood and agreed that the failure of
the Administrative Agent to comply with any such request at any time shall not
in itself be deemed a failure to exercise reasonable care and that the
Administrative Agent is not obligated to comply with any such request unless
otherwise required to do so hereunder or under the Credit Agreement).
11. Remedies. If any Event of Default shall have occurred and be
continuing:
(a) The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured creditor upon default under the
Uniform Commercial Code in effect in the State of New York at such time (the
"UCC") and also may without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange broker's board or at any of the Administrative Agent's offices
or elsewhere, for cash, on credit or for future delivery, at such price or
prices and upon such other terms as are commercially reasonable irrespective of
the impact of any such sales on the market price of the Collateral. Each
purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of the Borrower, and the Borrower hereby waives (to
the extent permitted by law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least ten days' notice to the
Borrower of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Administrative Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. To the extent permitted by law,
the Borrower hereby waives any claim against the Administrative Agent arising by
reason of the fact that the price at which any Collateral may have been sold at
such a private sale was less than the price that might have been obtained at a
public sale, even if the Administrative Agent accepts the first offer received
and does not offer such Collateral to more than one offeree.
(b) All cash proceeds received by the Administrative Agent in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral shall be applied (after payment of any amounts payable to the
Administrative Agent pursuant to Section 11.4 and 11.5 of the Credit Agreement)
by the Administrative Agent for the ratable benefit of the Secured Creditors in
the following order: first, against Obligations consisting of unpaid and
outstanding interest on the Loans, second, ratably against Obligations
consisting of unpaid and outstanding principal of the Loans, Obligations then
due and owing under all outstanding
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Swap Contracts and Obligations consisting of unreimbursed and owing Special
Facility Obligations and other similar obligations, third, to collateralize
Obligations consisting of Special Facility Obligations and other similar
obligations, and fourth, against any other remaining Obligations. The
Administrative Agent may assume that no Obligations are outstanding with respect
to Swap Contracts unless it has received written notice thereof in accordance
with this Pledge Agreement prior to any such application by it, and if so
notified may rely upon and deal with the Secured Creditor party to such Swap
Contract as to Obligations thereunder. Any surplus of such cash or cash proceeds
held by the Administrative Agent and remaining after payment in full of all the
Obligations (other than indemnities, costs and expenses that survive termination
of a Loan Document but as to which demand for payment has not then been made),
the termination of all Commitments, the termination or expiration of all Letters
of Credit and the maturity of all Acceptances shall be paid over to the Borrower
or to any other Person notified in writing to the Administrative Agent that may
be lawfully entitled to receive such surplus.
(c) The Administrative Agent may exercise any and all rights and remedies
of the Borrower in respect of the Collateral.
(d) All payments received by the Borrower after the occurrence and during
the continuance of an Event of Default in respect of the Collateral shall be
received in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of the Borrower and, upon written notice to the
Borrower from the Administrative Agent, shall be forthwith paid over to the
Administrative Agent in the same form as so received (with any necessary
endorsement).
(e) The Borrower shall remain liable to the extent of any deficiency.
(f) The Borrower agrees that in any sale of any of the Collateral in the
exercise of remedies hereunder whenever an Event of Default shall have occurred
and be continuing, the Administrative Agent is hereby authorized to comply with
any limitation or restriction in connection with such sale as it may be advised
by counsel is reasonably necessary in order to avoid any violation of applicable
law (including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Borrower further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Borrower for any discount allowed by reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
12. Amendments, etc. with Respect to the Obligations; Waiver of Rights.
The Borrower shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Borrower and without notice to or further
assent by the Borrower, any
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demand for payment of any of the Obligations made by the Administrative Agent or
any Secured Creditor may be rescinded by such party and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Secured Creditor, and
the Credit Agreement and the other Loan Documents and any other documents
executed and delivered in connection therewith and the Swap Contracts and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the required Lenders under the terms of the Credit Agreement, as the
case may be, or, in the case of any Swap Contracts, the Secured Creditor party
thereto) may deem advisable from time to time (in accordance with the Credit
Agreement or such Swap Contract, as applicable), and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Secured Creditor for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Secured Creditor shall have any obligation to protect, secure, perfect or insure
any Lien at any time held by it as security for the Obligations or for this
Pledge Agreement or any property subject thereto. When making any demand
hereunder against the Borrower, the Administrative Agent or any Secured Creditor
may, but shall be under no obligation to, make a similar demand on any other
pledgor, or any other provider of collateral or guarantor, and any failure by
the Administrative Agent or any Secured Creditor to make any such demand or to
collect any payments from the Borrower or any other pledgor, provider of
collateral or guarantor, and any release of the Borrower or any other pledgor,
provider of collateral or guarantor shall not relieve the Borrower of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Secured Creditor against the Borrower. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
13. Continuing Security Interest, Assignments Under the Credit Agreement.
This Pledge Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the payment in
full in cash of the Obligations (other than indemnities, costs and expenses that
survive termination of a Loan Document but as to which demand for payment has
not then been made), the termination of all Commitments, the termination or
expiration of all Letters of Credit and the maturing of all Acceptances,
notwithstanding that from time to time prior thereto the Borrower may be free
from any Obligations, (b) be binding upon the Borrower, its successors and
assigns and (c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent, the
Secured Creditors and their respective successors, transferees and assigns.
Without limiting the foregoing clause (c), any Secured Creditor may assign or
otherwise transfer (in whole or in part) any Note, Loan or other Obligation held
by it to any other Person, and such other Person shall thereupon become vested
with all the rights and benefits in respect thereof granted to such Secured
Creditor under any Loan Document (including this Pledge Agreement) or otherwise,
subject, however, to any contrary provisions in such
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assignment or transfer, and to the provisions of Section 11.8 and Article X of
the Credit Agreement.
14. Reinstatement. This Pledge Agreement shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Secured Creditor upon the filing or
commencement of any Insolvency Proceeding in respect of the Borrower, or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
15. Notices. All notices, requests and demands pursuant hereto shall be
made in accordance with Section 11.2 of the Credit Agreement.
16. Counterparts. This Pledge Agreement may be executed by the Borrower
and the Administrative Agent on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Pledge Agreement signed by the
Borrower and the Administrative Agent shall be lodged with the Administrative
Agent and the Borrower.
17. Severability. Any provision of this Pledge Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. Integration; Loan Document. This Pledge Agreement represents the
entire agreement of the Borrower and the Administrative Agent with respect to
the subject matter hereof and there are no agreements relative to the subject
matter hereof not reflected herein or, to the extent expressly referred to
herein, in the other Loan Documents. This Pledge Agreement constitutes a Loan
Document and, as such, is subject to the provisions of Section 11.15 of the
Credit Agreement (Governing Law and Jurisdiction) and Section 11.16 of the
Credit Agreement (Waiver of Jury Trial).
19. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Pledge Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Borrower and the Administrative Agent in accordance with Section 11.1 of the
Credit Agreement.
(b) Neither the Administrative Agent nor any Secured Creditor shall by any
act (except by a written instrument pursuant to Section 19(a)), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Secured
Creditor, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall
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preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Secured
Creditor of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that the Administrative Agent or such
Secured Creditor would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
20. Section Headings. The Section headings used in this Pledge Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
21. Successors and Assigns. This Pledge Agreement shall be binding upon
the successors and assigns of the Borrower and shall inure to the benefit of the
Administrative Agent and the Secured Creditors and their successors and assigns,
except that the Borrower may not assign, transfer or delegate any of its rights
or obligations under this Pledge Agreement without the prior written consent of
the Administrative Agent.
22. Protection of Collateral. The Administrative Agent may from time to
time take any action which the Administrative Agent reasonably deems necessary
for the maintenance, preservation or protection of any of the Collateral or of
its security interest therein, and at any time after and during the continuance
of an Event of Default, the Administrative Agent may from time to time, at its
option and at the expense of the Borrower, perform any act which the Borrower
agrees hereunder to perform and which the Borrower shall fail to perform.
23. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge
Agreement to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
E&S HOLDINGS CORPORATION
By /s/ W. Xxxxxxx Xxxxxxx
------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Treasurer and Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Administrative
Agent
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Libra
Title: Vice President
13
SCHEDULE I
TO THE PLEDGE AGREEMENT
PLEDGED SHARES
Percentage
Class of Stock Number of
Stock/Par Certificate of Outstanding
Issuer Value No(s) Shares Shares
----------------------------- ----------- ----------- ------- -----------
Spalding & Evenflo Companies, Common C 2 190,000 100%
Inc. Stock/$1.00
