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EXHIBIT 10.11
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PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of September 29, 2000 (together with
all amendments, if any, from time to time hereto, this "Agreement") is between
EDAC TECHNOLOGIES CORPORATION (the "Pledgor") and GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation ("Lender").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Loan and Security Agreement, dated as
of the date hereof, by and among Pledgor, Apex Machine Tool Company, Inc.
("Apex") (Pledgor and Apex, each a "Borrowers" and collectively, the
"Borrowers") and Lender (including all annexes, exhibits and schedules thereto,
and as from time to time amended, restated, supplemented or otherwise modified,
the "Loan Agreement") the Lender has agreed to make Loans to, and extend credit
for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the shares of
Stock listed in Part A of Schedule I hereto and the owner of the promissory
notes and instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Loan Agreement;
WHEREAS, in order to induce the Lender to make the Loans and extend
credit to Borrowers as provided for in the Loan Agreement, Pledgor has agreed to
pledge the Pledged Collateral to the Lender in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce the Lender to make Loans and to incur Letter
of Credit Obligations under the Loan Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in
the Loan Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as
amended from time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in
Section 2 hereof.
"Pledged Entity" means an issuer of Pledged Stock or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by
promissory notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means those shares listed on Part A of
Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term in
Section 3 hereof.
2. Pledge. Pledgor hereby pledges to the Lender a first
priority security interest in all of the following (collectively, the "Pledged
Collateral"):
(i) the Pledged Shares and the certificates representing
the Pledged Shares, and all dividends, distributions,
cash, instruments and other property or proceeds from
time to time received, receivable or otherwise
distributed in respect of or in exchange for any or
all of the Pledged Shares; and
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(ii) any additional shares of stock of a Pledged Entity from
time to time acquired by Pledgor in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates
representing such additional shares, and all dividends, distributions,
cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such stock; and
(iii) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(iv) all additional Indebtedness arising after the date
hereof and owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the
Pledged Collateral is security for, the prompt payment and performance in full
when due, whether at stated maturity, by acceleration or otherwise, of all
Obligations of any kind under or in connection with the Loan Agreement and the
other Loan Documents and all obligations of Borrowers now or hereafter existing
under this Agreement or any other Loan Document to which any Borrower is a party
including, without limitation, all fees, costs and expenses whether in
connection with collection actions hereunder or thereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of the Lender pursuant hereto. All Pledged
Shares shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Lender and
all promissory notes or other instruments evidencing the Pledged Indebtedness
shall be endorsed by Pledgor.
5. Representations and Warranties. Pledgor represents and
warrants to the Lender that:
(a) Pledgor is, and at the time of delivery of the
Pledged Shares to the Lender will be, the sole holder of record and the
sole beneficial owner of such Pledged Collateral pledged by Pledgor
free and clear of any Lien thereon or affecting the title thereto,
except for any Lien created by this Agreement; Pledgor is and at the
time of delivery of the Pledged Indebtedness to the Lender will be, the
sole owner of such Pledged Collateral free and clear of any Lien
thereon or affecting title thereto, except for any Lien created by this
Agreement;
(b) All of the Pledged Shares have been duly
authorized, validly issued and are fully paid and non-assessable; the
Pledged Indebtedness has been duly authorized, authenticated or issued
and delivered by, and is the legal, valid and binding obligations of,
the Pledged Entities, and no such Pledged Entity is in default
thereunder;
(c) Pledgor has the right and requisite authority to
pledge, assign, transfer, deliver, deposit and set over the Pledged
Collateral pledged by Pledgor to the Lender as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness
has been issued or transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction
to which such issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by
Pledgor, and are presently represented by the certificates listed on
Part A of Schedule I hereto. As of the date hereof, there are no
existing options, warrants, calls or commitments of any character
whatsoever relating to the Pledged Shares;
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(f) No consent, approval, authorization or other order or
other action by, and no notice to or filing with, any Governmental
Authority or any other Person is required (i) for the pledge by Pledgor
of the Pledged Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by Pledgor, or
(ii) for the exercise by the Lender of the voting and other rights
provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement, except as may be
required in connection with such disposition by laws affecting the
offering and sale of securities generally;
(g) The pledge, assignment and delivery of the Pledged
Collateral pursuant to this Agreement will create a valid first
priority Lien on and a first priority perfected security interest in
favor of the Lender in the Pledged Collateral and the proceeds thereof,
securing the payment of the Secured Obligations, subject to no other
Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute one hundred percent
(100%) of the issued and outstanding shares of Stock of each Pledged
Entity; and
(j) Except as disclosed on Part B of Schedule I, none of
the Pledged Indebtedness is subordinated in right of payment to other
Indebtedness or subject to the terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the
Termination Date:
(a) Without the prior written consent of the Lender,
Pledgor will not sell, assign, transfer, pledge, or otherwise encumber
any of its rights in or to the Pledged Collateral, or any unpaid
dividends, interest or other distributions or payments with respect to
the Pledged Collateral or xxxxx x Xxxx in the Pledged Collateral,
unless otherwise expressly permitted by the Loan Agreement;
(b) Pledgor will, at its expense, promptly execute,
acknowledge and deliver all such instruments and take all such actions
as the Lender from time to time may request in order to ensure to the
Lender the benefits of the Liens in and to the Pledged Collateral
intended to be created by this Agreement, including the filing of any
necessary financing statements, which may be filed by the Lender with
or (to the extent permitted by law) without the signature of Pledgor,
and will cooperate with the Lender, at Pledgor's expense, in obtaining
all necessary approvals and making all necessary filings under federal,
state, local or foreign law in connection with such Liens or any sale
or transfer of the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of the Lender in the Pledged Collateral
against the claim of any Person and will maintain and preserve such
Liens; and
(d) Pledgor will, upon obtaining ownership of any
additional Stock or promissory notes or instruments of a Pledged Entity
or Stock or promissory notes or instruments otherwise required to be
pledged to the Lender pursuant to any of the Loan Documents, which
Stock, notes or instruments are not already Pledged Collateral,
promptly (and in any event within three (3) Business Days) deliver to
the Lender a Pledge Amendment, duly executed by Pledgor, in
substantially the form of Schedule II hereto (a "Pledge Amendment") in
respect of any such additional Stock, notes or instruments, pursuant to
which Pledgor shall pledge to the Lender all of such additional Stock,
notes and instruments. Pledgor hereby authorizes the Lender to attach
each Pledge Amendment to this Agreement and agrees that all Pledged
Shares and Pledged
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Indebtedness listed on any Pledge Amendment delivered to the Lender
shall for all purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default
shall have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to
vote and give consents with respect to the Pledged Collateral, or any
part thereof for all purposes not inconsistent with the provisions of
this Agreement, the Loan Agreement or any other Loan Document;
provided, however, that no vote shall be cast, and no consent shall be
given or action taken, which would have the effect of impairing the
position or interest of the Lender in respect of the Pledged Collateral
or which would authorize, effect or consent to (unless and to the
extent expressly permitted by the Loan Agreement):
(i) the dissolution or liquidation, in whole or in
part, of a Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity
with any other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except
for Liens in favor of the Lender;
(iv) any change in the authorized number of shares,
the stated capital or the authorized share capital of a
Pledged Entity or the issuance of any additional shares of its
Stock; or
(v) the alteration of the voting rights with
respect to the Stock of a Pledged Entity; and
(b)(i) Pledgor shall be entitled, from time to time, to
collect and receive for its own use all cash dividends and interest
paid in respect of the Pledged Shares and Pledged Indebtedness to the
extent not in violation of the Loan Agreement other than any and all:
(A) dividends and interest paid or payable other than in cash in
respect of any Pledged Collateral, and instruments and other property
received, receivable or otherwise distributed in respect of, or in
exchange for, any Pledged Collateral; (B) dividends and other
distributions paid or payable in cash in respect of any Pledged Shares
in connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-in
capital of a Pledged Entity; and (C) cash paid, payable or otherwise
distributed, in respect of principal of, or in redemption of, or in
exchange for, any Pledged Collateral; provided, however, that until
actually paid all rights to such distributions shall remain subject to
the Lien created by this Agreement; and
(ii) all dividends and interest (other than such
cash dividends and interest as are permitted to be paid to
Pledgor in accordance with clause (i) above) and all other
distributions in respect of any of the Pledged Shares or
Pledged Indebtedness, whenever paid or made, shall be
delivered to the Lender to hold as Pledged Collateral and
shall, if received by Pledgor, be received in trust for the
benefit of the Lender, be segregated from the other property
or funds of Pledgor, and be forthwith delivered to the Lender
as Pledged Collateral in the same form as so received (with
any necessary endorsement).
8. Defaults and Remedies.
(a) Upon the occurrence and during the continuance of an
Event of Default, Lender (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends,
interest, principal and other distributions made thereon, to sell in
one or more sales after ten (10) days' notice of the time and
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place of any public sale or of the time at which a private sale is to
take place (which notice Pledgor agrees is commercially reasonable) the
whole or any part of the Pledged Collateral and to otherwise act with
respect to the Pledged Collateral as though the Lender was the outright
owner thereof. Pledgor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Collateral are
insufficient to pay in full the Secured Obligations. Pledgor hereby
irrevocably constitutes and appoints the Lender as the proxy and
attorney-in-fact of Pledgor, with full power of substitution to do so,
and which appointment shall remain in effect until the Termination
Date; provided, however, the Lender shall not have any duty to exercise
any such right or to preserve the same and shall not be liable for any
failure to do so or for any delay in doing so. Any sale shall be made
at a public or private sale at the Lender's place of business, or at
any place to be named in the notice of sale, either for cash or upon
credit or for future delivery at such price as the Lender may deem
fair, and the Lender may be the purchaser of the whole or any part of
the Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or any right of redemption (any
such right being hereby waived or released). Each sale shall be made to
the highest bidder, but the Lender reserves the right to reject any and
all bids at such sale which, in its discretion, it shall deem
inadequate. Demands of performance, except as otherwise herein
specifically provided for, notices of sale, advertisements and the
presence of property at sale are hereby waived and any sale hereunder
may be conducted by an auctioneer or any officer or agent of the
Lender.
(b) If, at the original time or times appointed for the
sale of the whole or any part of the Pledged Collateral, the highest
bid, if there be but one sale, shall be inadequate to discharge in full
all the Secured Obligations, or if the Pledged Collateral be offered
for sale in lots, if at any of such sales, the highest bid for the lot
offered for sale would indicate to the Lender, in its discretion, that
the proceeds of the sales of the whole of the Pledged Collateral would
be unlikely to be sufficient to discharge all the Secured Obligations,
the Lender may, on one or more occasions and in its discretion,
postpone any of said sales by public announcement at the time of sale
or the time of previous postponement of sale, and no other notice of
such postponement or postponements of sale need be given, any other
notice being hereby waived; provided, however, that any sale or sales
made after such postponement shall be after ten (10) days' notice to
Pledgor.
(c) If, at any time when the Lender in its sole discretion
determines, following the occurrence and during the continuance of an
Event of Default, that, in connection with any actual or contemplated
exercise of its rights (when permitted under this Section 8) to sell
the whole or any part of the Pledged Shares hereunder, it is necessary
or advisable to effect a public registration of all or part of the
Pledged Collateral pursuant to the Securities Act of 1933, as amended
(or any similar statute then in effect) (the "Act"), Pledgor shall, in
an expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and
Exchange Commission (the "Commission") a registration
statement with respect to the Pledged Shares and in good faith
use commercially reasonable efforts to cause such registration
statement to become and remain effective;
(ii) Prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to
comply with the provisions of the Act with respect to the sale
or other disposition of the Pledged Shares covered by such
registration statement whenever the Lender shall desire to
sell or otherwise dispose of the Pledged Shares;
(iii) Furnish to the Lender such numbers of copies of
a prospectus and a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as the
Lender may request in order to facilitate the public sale or
other disposition of the Pledged Shares by the Lender;
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(iv) Use commercially reasonable efforts to
register or qualify the Pledged Shares covered by such
registration statement under such other securities or blue sky
laws of such jurisdictions within the United States and Puerto
Rico as the Lender shall request, and do such other reasonable
acts and things as may be required of it to enable the Lender
to consummate the public sale or other disposition in such
jurisdictions of the Pledged Shares by the Lender;
(v) Furnish, at the request of the Lender, on the
date that shares of the Pledged Collateral are delivered to
the underwriters for sale pursuant to such registration or, if
the security is not being sold through underwriters, on the
date that the registration statement with respect to such
Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant
for the purposes of such registration, addressed to the
underwriters, if any, and in the event the Pledged Shares are
not being sold through underwriters, then to the Lender, in
customary form and covering matters of the type customarily
covered in such legal opinions; and (B) a comfort letter,
dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters,
if any, and in the event the Pledged Shares are not being sold
through underwriters, then to the Lender, in a customary form
and covering matters of the type customarily covered by such
comfort letters and as the underwriters or the Lender shall
reasonably request. The opinion of counsel referred to above
shall additionally cover such other legal matters with respect
to the registration in respect of which such opinion is being
given as the Lender may reasonably request. The letter
referred to above from the independent certified public
accountants shall additionally cover such other financial
matters (including information as to the period ending not
more than five (5) Business Days prior to the date of such
letter) with respect to the registration in respect of which
such letter is being given as the Lender may reasonably
request; and
(vi) Otherwise use commercially reasonable efforts
to comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as
soon as reasonably practicable but not later than eighteen
(18) months after the effective date of the registration
statement, an earnings statement covering the period of at
least twelve (12) months beginning with the first full month
after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section
11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c)
hereof, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for the Lender, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when the Lender shall determine to
exercise its right to sell the whole or any part of the Pledged
Collateral hereunder, such Pledged Collateral or the part thereof to be
sold shall not, for any reason whatsoever, be effectively registered
under the Act, the Lender may, in its discretion (subject only to
applicable requirements of law), sell such Pledged Collateral or part
thereof by private sale in such manner and under such circumstances as
the Lender may deem necessary or advisable, but subject to the other
requirements of this Section 8, and shall not be required to effect
such registration or to cause the same to be effected. Without limiting
the generality of the foregoing, in any such event, the Lender in its
discretion (x) may, in accordance with applicable securities laws,
proceed to make such private sale notwithstanding that a registration
statement for the purpose of registering such Pledged Collateral or
part thereof could be or shall have been filed under said Act (or
similar statute), (y) may approach and negotiate with a single possible
purchaser to effect such sale, and (z) may restrict such sale to a
purchaser who is an accredited investor under the Act and who will
represent and agree that such
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purchaser is purchasing for its own account, for investment and not
with a view to the distribution or sale of such Pledged Collateral or
any part thereof. In addition to a private sale as provided above in
this Section 8, if any of the Pledged Collateral shall not be freely
distributable to the public without registration under the Act (or
similar statute) at the time of any proposed sale pursuant to this
Section 8, then the Lender shall not be required to effect such
registration or cause the same to be effected but, in its discretion
(subject only to applicable requirements of law), may require that any
sale hereunder (including a sale at auction) be conducted subject to
restrictions:
(i) as to the financial sophistication and ability
of any Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon
any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made
by each Person bidding or purchasing at such sale relating to
that Person's access to financial information about Pledgor
and such Person's intentions as to the holding of the Pledged
Collateral so sold for investment for its own account and not
with a view to the distribution thereof; and
(iv) as to such other matters as the Lender may, in
its discretion, deem necessary or appropriate in order that
such sale (notwithstanding any failure so to register) may be
effected in compliance with the Bankruptcy Code and other laws
affecting the enforcement of creditors' rights and the Act and
all applicable state securities laws.
(f) Pledgor recognizes that the Lender may be unable to
effect a public sale of any or all the Pledged Collateral and may be
compelled to resort to one or more private sales thereof in accordance
with clause (e) above. Pledgor also acknowledges 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 not be deemed to
have been made in a commercially unreasonable manner solely by virtue
of such sale being private. The Lender shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of time
necessary to permit the Pledged Entity to register such securities for
public sale under the Act, or under applicable state securities laws,
even if Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by
applicable law that following the occurrence and during the continuance
of an Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and Pledgor waives the benefit of all
such laws to the extent it lawfully may do so. Pledgor agrees that it
will not interfere with any right, power and remedy of the Lender
provided for in this Agreement or now or hereafter existing at law or
in equity or by statute or otherwise, or the exercise or beginning of
the exercise by the Lender of any one or more of such rights, powers or
remedies. No failure or delay on the part of the Lender to exercise any
such right, power or remedy and no notice or demand which may be given
to or made upon Pledgor by the Lender with respect to any such remedies
shall operate as a waiver thereof, or limit or impair the Lender's
right to take any action or to exercise any power or remedy hereunder,
without notice or demand, or prejudice its rights as against Pledgor in
any respect.
(h) Pledgor further agrees that a breach of any of the
covenants contained in this Section 8 will cause irreparable injury to
the Lender, that the Lender shall 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 8 shall be specifically
enforceable against Pledgor, and Pledgor hereby waives and agrees not
to assert any defenses against an action for specific
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performance of such covenants except for a defense that no Event of
Default has occurred under the Loan Agreement.
9. Waiver. No delay on the Lender's part in exercising any power
of sale, Lien, option or other right hereunder, and no notice or demand which
may be given to or made upon Pledgor by the Lender with respect to any power of
sale, Lien, option or other right hereunder, shall constitute a waiver thereof,
or limit or impair the Lender's right to take any action or to exercise any
power of sale, Lien, option, or any other right hereunder, without notice or
demand, or prejudice the Lender's rights as against Pledgor in any respect.
10. Assignment. The Lender may assign, indorse or transfer any
instrument evidencing all or any part of the Secured Obligations as provided in,
and in accordance with, the Loan Agreement, and the holder of such instrument
shall be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, the
Lender shall deliver to Pledgor the Pledged Collateral subject to this Agreement
and all instruments of assignment executed in connection therewith, free and
clear of the Liens hereof and, except as otherwise provided herein, all of
Pledgor's obligations hereunder shall at such time terminate.
12. Lien Absolute. All rights of the Lender hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Loan
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any part of the Secured
Obligations, or any other amendment or waiver of or any consent to any
departure from the Loan Agreement, any other Loan Document or any other
agreement or instrument governing or evidencing any Secured
Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that the Lender may at
any time, or from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or
the manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by or on
behalf of the Lender in connection with all or any of the Secured
Obligations; all in such manner and upon such terms as the Lender may
deem proper, and without notice to or further assent from Pledgor, it
being hereby agreed that Pledgor shall be and remain bound upon this
Agreement, irrespective of the value or condition of any of the
Collateral, and notwithstanding any such change, exchange, settlement,
compromise, surrender, release, renewal or extension, and
notwithstanding also that the Secured Obligations may, at any time,
exceed the aggregate principal amount thereof set forth in the Loan
Agreement, or any other agreement governing any Secured Obligations.
Pledgor hereby waives notice of acceptance of this Agreement, and also
presentment, demand, protest and notice of dishonor of any and all of
the Secured Obligations,
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and promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on the Lender's
part shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Pledgor or any Pledged Entity for liquidation or reorganization, should Pledgor
or any Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) The Lender may execute any of its duties hereunder by
or through agents or employees and shall be entitled to advice of
counsel concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse the Lender for
actual out-of-pocket expenses, including, without limitation,
reasonable counsel fees, incurred by the Lender in connection with the
administration and enforcement of this Agreement.
(c) Neither the Lender, nor any of its respective
officers, directors, employees, agents or counsel shall be liable for
any action lawfully taken or omitted to be taken by it or them
hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, THE
LENDER AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND NONE
OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED,
MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON BEHALF OF
THE LENDER AND PLEDGOR.
16. Severability. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or effect those portions of
this Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
(a) If to the Lender, at:
General Electric Capital Corporation
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11
00 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Att'n: EDAC Technologies Corporation- Apex
Machine Tool Company, Inc. Account
Manager
Telephone: 000-000-0000
Facsimile: 000-000-0000
(b) If to Pledgor, at:
EDAC Technologies Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Att'n: Xxxxxx X. Xxxxxxxxx,
Executive Vice President
Telephone: 000-000-0000
Facsimile: 860-674-2718
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
19. Counterparts. This Agreement may be executed in any number of
separate counterparts by one or more of the parties hereto and all of said
counterparts taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the date first written above.
EDAC TECHNOLOGIES CORPORATION
By:/s/Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name:
---------------------------------------
Title: EVP
--------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/ Xxxxxx Xxxxxx
--------------------------------------------
Name:
---------------------------------------
Title: Duly Authorized Signatory
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SCHEDULE I
PART A
PLEDGED SHARES
=================================== ============= ========================== ================ ==========================
Class Stock Certificate Number Percentage of
Pledged Entity of Stock Number(s) of Shares Outstanding Shares
=================================== ============= ========================== ================ ==========================
Gros-Ite Industries, Inc.
=================================== ============= ========================== ================ ==========================
Apex Machine Tool Company, Inc.
=================================== ============= ========================== ================ ==========================
PART B
PLEDGED INDEBTEDNESS
================================== ========================== ==================== =============== ===================
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
================================== ========================== ==================== =============== ===================
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SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated , is delivered pursuant to
Section 6(d) of the Pledge Agreement referred to below. All defined terms herein
shall have the meanings ascribed thereto or incorporated by reference in the
Pledge Agreement. Pledgor hereby certifies that the representations and
warranties in Section 5 of the Pledge Agreement are and continue to be true and
correct, both as to the promissory notes, instruments and shares pledged prior
to this Pledge Amendment and as to the promissory notes, instruments and shares
pledged pursuant to this Pledge Amendment. Pledgor further agrees that this
Pledge Amendment may be attached to that certain Pledge Agreement, dated as of
September 29, 2000, between the undersigned, as Pledgor, and General Electric
Capital Corporation, as the Lender, (as it may be amended, restated, modified or
supplemented and in effect from time to time, the "Pledge Agreement") and that
the Pledged Shares and Pledged Indebtedness listed on this Pledge Amendment
shall be and become a part of the Pledged Collateral referred to in said Pledge
Agreement and shall secure all Secured Obligations referred to in said Pledge
Agreement and Pledgor hereby grants a first priority security interest to Lender
in such Pledged Shares and Pledged Indebtedness. Pledgor acknowledges that any
promissory notes, instruments or shares not included in the Pledged Collateral
at the discretion of the Lender may not otherwise be pledged by Pledgor to any
other Person or otherwise used as security for any obligations other than the
Secured Obligations.
============================================ ======================== ================ ==================== ===================
Name and Class Certificate Number
Address of Pledgor Pledged Entity Of Stock Number(s) of Shares
------------------ -------------- -------- --------- ---------
-------------------------------------------- ------------------------ ---------------- -------------------- -------------------
-------------------------------------------- ------------------------ ---------------- -------------------- -------------------
-------------------------------------------- ------------------------ ---------------- -------------------- -------------------
============================================ ======================== ================ ==================== ===================
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
==================================== ============================ ======================= ==================== ================
==================================== ============================ ======================= ==================== ================
==================================== ============================ ======================= ==================== ================
==================================== ============================ ======================= ==================== ================
EDAC TECHNOLOGIES CORPORATION
By:/s/Xxxxxx X. Xxxxxxxxx , as Pledgor
-----------------------------
Name:
--------------------------------------
Title: EVP
-------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/Xxxxxx X. Xxxxxx
---------------------------------------------
Name:
----------------------------------------
Title: Duly Authorized Signatory
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ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Pledge
Agreement dated as of September 29, 2000 (the "Pledge Agreement"), made by EDAC
TECHNOLOGIES CORPORATION for the benefit of General Electric Capital Corporation
(the "Lender"). The undersigned agrees for the benefit of the Lender as follows:
1. It will be bound by the terms of the Pledge Agreement and will comply
with such terms insofar as such terms are applicable to the undersigned.
2. It will notify the Lender promptly in writing of the occurrence of any
of the events described in Section 6 (d) of the Pledge Agreement.
3. The terms of Section 8 (c) of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it under
or pursuant to or arising out of Section 8 of the Pledge Agreement.
APEX MACHINE TOOL COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Name:
----------------------------------------
Title: Secretary
---------------------------------------
Address for Notices:
00 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
GROS-ITE INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Name:
----------------------------------------
Title: Secretary
---------------------------------------
Address for Notices:
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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