Exhibit 10.25
Execution Copy
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of November 17, 1999 among EQUIVEST
FINANCE, INC., a Delaware corporation (the "Borrower"), Peppertree
Resorts, Ltd., a North Carolina corporation ("Peppertree") PEPPERTREE
ACQUISITION II CORP., a Delaware corporation ("Newco II"), (the Borrower,
Peppertree and Newco II referred to herein as the "Pledgors"), and Bank of
America, N.A. (the "Lender").
Reference is made to the Credit Agreement, dated as of November 17,
1999 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, Peppertree Acquisition Corp.,
Peppertree Acquisition II Corp. and the Lender. Capitalized terms used
herein and not defined herein shall have meanings assigned to such terms
in the Credit Agreement.
The Lender has agreed to make a Term Loan to the Borrower, pursuant
to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The obligation of the Lender to make the Term Loan is
conditioned upon, among other things, the execution and delivery by the
Pledgors of a Pledge Agreement in the form hereof to secure the due and
punctual payment and performance by each Obliger of the Obligations.
Accordingly, the Pledgors hereby agree as follows:
Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby transfers,
grants, bargains, sells, conveys, hypothecates, pledges, sets over,
assigns as security and delivers unto the Lender, its successors and
assigns, and hereby grants to the Lender, its successors and assigns, a
security interest in all of the Pledgor's right, title and interest in, to
and under (a) the Capital Stock owned by it and listed on Schedule I
hereto and the certificates representing all such Capital Stock (the
"Pledged Stock"); (b) (i) the debt securities listed opposite the name of
the Pledgor on Schedule II hereto, and (ii) the promissory notes and other
instruments evidencing such debt securities (the "Pledged Debt
Securities"); (c) all other property that may be delivered to and held by
the Lender pursuant to the terms hereof; (d) subject to Section 5, all
payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed,
in respect of, in exchange for or upon the conversion of the securities
referred to in clauses (a) and (b) above; (e) subject to Section 5, all
rights and privileges of the Pledgor with respect to the securities and
other property referred to in clauses (a), (b), (c) and (d) above; and (f)
all proceeds of any of the foregoing (the items referred to in clauses (a)
through (f) above being collectively referred to as the "Collateral").
Upon delivery to the Lender, (a) any stock certificates, notes or other
securities now or hereafter included in the Collateral (the "Pledged
Securities") shall be accompanied by stock powers duly executed in blank
or other instruments of transfer satisfactory to the Lender and by such
other endorsements, instruments and documents as the Lender may reasonably
request and (b) all other property comprising part of the Collateral shall
be accompanied by proper instruments of assignment duly executed by the
applicable Pledgor and such other endorsements, instruments or documents
as the Lender may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore
and then being pledged hereunder, which schedule shall be attached hereto
as Schedule I and made a part hereof. Each schedule so delivered shall
supersede any prior schedules so delivered.
Delivery of the Collateral. g) Each Pledgor agrees promptly to
deliver or cause to be delivered to the Lender any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
Each Pledgor will cause any Indebtedness for borrowed money
owed to the Pledgor by any person to be evidenced by a duly executed
promissory note that is pledged and delivered to the Lender pursuant to
the term thereof.
Representations, Warranties and Covenants. Each Pledgor hereby
represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Lender that:
the Pledged Stock represents that percentage as set forth on
Schedule I of the issued and outstanding Capital Stock of the issuer with
respect thereto;
except for the security interest granted hereunder, the
Pledgor (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on
Schedule I, (ii) holds the same free and clear of all Liens except those
permitted by the Credit Agreement or any other Loan Document, (iii) will
make no assignment, pledge, hypothecation or transfer of, or create or
permit to exist any security interest in or other Lien on, the Collateral,
other than pursuant hereto, or as permitted by the Credit Agreement or any
other Loan Document and (iv) subject to Section 5, will cause any and all
Collateral, whether for value paid by the Pledgor or otherwise, to be
forthwith deposited with the Lender and pledged or assigned hereunder;
the Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other
than the Liens created by this Agreement or permitted by the Credit
Agreement or any other Loan Document), however arising, of all persons
whomsoever;
no consent of any other person (including stockholders or
creditors of any Pledgor) and no consent or approval of any Tribunal or
any securities exchange was or is necessary to the validity of the pledge
effected hereby;
by virtue of the execution and delivery by the Pledgors of
this Agreement, when the Pledged Securities, certificates or other
documents representing or evidencing the Collateral are delivered to the
Lender in accordance with this Agreement or, if a security interest in any
of such Collateral may not under applicable law be perfected by
possession, then upon the filing of appropriate financing statements, the
Lender will obtain a valid and perfected first lien upon and security
interest in such Pledged Securities as security for the payment and
performance of the Obligations;
the pledge effected hereby is effective to vest in the Lender the
rights of the Lender in the Collateral as set forth herein;
all of the Pledged Stock has been duly authorized and validly issued
and is fully paid and nonassessable and is in certificated form;
all information set forth herein relating to the Pledged Stock
and the Pledged Debt Securities is accurate and complete in all material
respects as of the date hereof;
the pledge of the Pledged Stock pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof;
the Collateral shall not be represented by any certificates,
notes, securities, documents or other instruments other than those
delivered hereunder; and
the terms of the governing documentation for the capital stock
or interests of each partnership or limited liability company whose
capital stock or interests are pledged under Section 1 above will at all
times expressly provide that the capital stock or interests of such
partnership or limited liability company are securities governed by of the
Uniform Commercial Code as in effect in New York and that such capital
stock or interests will at all times be represented by a certificate or
certificates duly delivered to the Lender under Section 1 above.
Registration in Nominee Name; Denominations. The Lender shall
have the right (in its sole and absolute discretion) following an Event of
Default which is continuing to hold the Pledged Securities in its own name
as pledgee, the name of its nominee (as pledgee or as sub-agent) or the
name of the Pledgors, endorsed or assigned in blank or in favor of the
Lender. Each Pledgor will promptly give to the Lender copies of any
notices or other communications received by it with respect to Pledged
Securities registered in the name of such Pledgor. The Lender at all times
following an Event of Default which is continuing have the right to
exchange the certificates representing Pledged Securities for certificates
of smaller or larger denominations for any purpose consistent with this
Agreement.
Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose not inconsistent with the
terms of this Agreement, the Credit Agreement and the other Loan
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could reasonably be expected
to materially and adversely affect the rights inuring to a holder of the
Pledged Securities or the rights and remedies of the Lender under this
Agreement or the Credit Agreement or any other Loan Document or the
ability of the Lender to exercise the same.
The Lender shall execute and deliver to each Pledgor, or cause
to be executed and delivered to each Pledgor, all such proxies, powers of
attorney and other endorsement instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above and to receive the cash dividends it is entitled to
receive pursuant to subparagraph (iii) below.
Each Pledgor shall be entitled to receive and retain any and
all cash dividends, distributions, interest and principal paid on the
Pledged Securities to the extent and only to the extent that such cash
dividends, distributions, interest and principal are permitted by, and
otherwise paid in accordance with, the terms and conditions of the Credit
Agreement, the other Loan Documents and applicable laws. All noncash
dividends, distributions, interest and principal, and all dividends,
distributions, interest and principal paid or payable in cash or otherwise
in connection with a partial or total liquidation or dissolution, return
of capital, capital surplus or paid-in surplus, and all other
distributions (other than distributions referred to in the preceding
sentence) made on or in respect of the Pledged Securities, whether paid or
payable in cash or otherwise, whether resulting from a subdivision,
combination or reclassification of the outstanding capital stock of the
issuer of any Pledged Securities or received in exchange for Pledged
Securities or any part thereof, or in redemption thereof, or as a result
of any merger, consolidation, acquisition or other exchange of assets to
which such issuer may be a party or otherwise, shall be and become part of
the Collateral, and, if received by any Pledgor, shall not be commingled
by such Pledgor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of
the Lender and shall be forthwith delivered to the Lender in the same form
as so received (with any necessary endorsement).
Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to receive dividends, distributions,
interest or principal pursuant to paragraph (a)(iii) above shall cease,
and all such rights shall thereupon become vested in the Lender, which
shall have the sole and exclusive right and authority to receive and
retain such dividends, distributions, interest or principal as part of the
Collateral. All dividends, distributions, interest or principal received
by the Pledgor contrary to the provisions of this Section 5 shall be held
in trust for the benefit of the Lender, shall be segregated from other
property or funds of such Pledgor and shall be forthwith delivered to the
Lender upon demand in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or
received by the Lender pursuant to the provisions of this paragraph (b)
shall be retained by the Lender in an account to be established by the
Lender for receipt of such money or other property and shall be applied in
accordance with the provisions of Section 7. After all Events of Default
have been cured or waived, the Lender shall, within five Business Days
after all such Events of Default have been cured or waived, repay to each
Pledgor all cash dividends, distributions, interest or principal (without
interest), that such Pledgor would otherwise be permitted to retain
pursuant to the terms of paragraph (a)(iii) above and which remain in such
account.
Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual
rights and powers it is entitled to exercise pursuant to paragraph (a)(i)
of this Section 5, and the obligations of the Lender under paragraph
(a)(ii) of this Section 5, shall cease, and all such rights shall
thereupon become vested in the Lender, which shall have the sole and
exclusive right and authority to exercise such voting and consensual
rights and powers, provided that, the Lender shall have the right from
time to time following and during the continuance of an Event of Default
to permit the Pledgors to exercise such rights. After all Events of
Default have been cured or waived, such Pledgor will have the right to
exercise the voting and consensual rights and powers that it would
otherwise be entitled to exercise pursuant to the terms of paragraph
(a)(i) above.
Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and
legal requirements, the Lender may sell the Collateral, or any part
thereof, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Lender shall deem appropriate. The Lender shall be authorized at any such
sale (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to persons who will represent and agree that they
are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof or to impose other
restrictions necessary in its reasonable judgment to ensure compliance
with applicable securities laws, as more fully set forth in Section 11,
and upon consummation of any such sale the Lender shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of any
Pledgor, and, to the extent permitted by applicable law, the Pledgors
hereby waive all rights of redemption, stay, valuation and appraisal any
Pledgor now has or may at any time in the future have under any rule of
law or statute now existing or hereafter enacted.
The Lender shall give a Pledgor 10 days' prior written notice (which
each Pledgor agrees is reasonable notice within the meaning of Section
9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions) of the Lender's intention
to make any sale of such Pledgor's Collateral. Such notice, in the case of
a public sale, shall state the time and place for such sale and, in the
case of a sale at a broker's board or on a securities exchange, shall
state the board or exchange at which such sale is to be made and the day
on which the Collateral, or portion thereof, will first be offered for
sale at such board or exchange. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places
as the Lender may fix and state in the notice of such sale. At any such
sale, the Collateral, or portion thereof, to be sold may be sold in one
lot as an entirety or in separate parcels, as the Lender may (in its sole
and absolute discretion) determine. The Lender shall not be obligated to
make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have
been given. The Lender may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same
was so adjourned. In case any sale of all or any part of the Collateral is
made on credit or for future delivery, the Collateral so sold may be
retained by the Lender until the sale price is paid in full by the
purchaser or purchasers thereof, but the Lender shall not incur any
liability in case any such purchaser or purchasers shall fail to take up
and pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. At any public (or, to the
extent permitted by applicable law, private) sale made pursuant to this
Section 6, the Lender may bid for or purchase, free from any right of
redemption, stay or appraisal on the part of any Pledgor (all said rights
being also hereby waived and released), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any
claim then due and payable to it from such Pledgor as a credit against the
purchase price, and it may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to such
Pledgor therefor. For purposes hereof, (a) a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof,
(b) the Lender shall be free to carry out such sale pursuant to such
agreement and (c) such Pledgor shall not be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the
fact that after the Lender shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations paid in
full. As an alternative to exercising the power of sale herein conferred
upon it, the Lender may proceed by a suit or suits at law or in equity to
foreclose upon the Collateral and to sell the Collateral or any portion
thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. Any sale in accordance with the provisions of this Section 6
shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-504(3) of the Uniform Commercial Code as in effect
in the State of New York or its equivalent in other jurisdictions.
Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6, as well as any Collateral consisting of
cash, shall be applied by the Lender as follows:
FIRST, to the payment of all costs and expenses incurred by the
Lender in connection with such sale or otherwise in connection with this
Agreement, any other Loan Document or any of the Obligations, including
all court costs and the reasonable fees and expenses of its agents and
legal counsel, the repayment of all advances made by the Lender hereunder
or under any other Loan Document on behalf of any Pledgor and any other
costs or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations; and
THIRD, to the Pledgors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Subject to the foregoing, the Lender shall have absolute discretion
as to the time of application of any such proceeds, moneys or balances in
accordance with this Agreement. Upon any sale of the Collateral by the
Lender (including pursuant to a power of sale granted by statute or under
a judicial proceeding), the receipt of the purchase money by the Lender or
of the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of
the purchase money paid over to the Lender or such officer or be
answerable in any way for the misapplication thereof.
Reimbursement of Lender. h) Each Pledgor agrees to pay upon
demand to the Lender the amount of any and all reasonable expenses,
including the reasonable fees, other charges and disbursements of its
counsel and of any experts or agents, that the Lender may incur in
connection with (i) the administration of this Agreement, (ii) the custody
or preservation of, or the sale of, collection from, or other realization
upon, any of the Collateral, (iii) the exercise or enforcement of any of
the rights of the Lender hereunder or (iv) the failure by such Pledgor to
perform or observe any of the provisions hereof.
Without limitation of its indemnification obligations under
the other Loan Documents, each Pledgor agrees to indemnify the Lender and
the Indemnitees against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, other charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any
other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the Transactions and the
other transactions contemplated thereby or (ii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or
not any Indemnitee is a party thereto, provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court
of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such
Indemnitee.
Any amounts payable as provided hereunder shall be additional
Obligations secured hereby. The provisions of this Section 8 shall remain
operative and in full force and effect regardless of the termination of
this Agreement or any other Loan Document, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations,
the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document or any investigation made by or on
behalf of the Lender. All amounts due under this Section 8 shall be
payable on written demand therefor and shall bear interest at the Default
Rate.
Lender Appointed Attorney-in-Fact. Each Pledgor hereby
appoints the Lender the attorney-in-fact of such Pledgor following an
Event of Default which is continuing for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any
instrument that the Lender may deem necessary or advisable to accomplish
the purposes hereof, which appointment is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, the Lender
shall have the right, upon the occurrence and during the continuance of an
Event of Default, with full power of substitution either in the Lender's
name or in the name of such Pledgor, to ask for, demand, ▇▇▇ for, collect,
receive and give acquittance for any and all moneys due or to become due
under and by virtue of any Collateral, to endorse checks, drafts, orders
and other instruments for the payment of money payable to the Pledgor
representing any interest or dividend or other distribution payable in
respect of the Collateral or any part thereof or on account thereof and to
give full discharge for the same, to settle, compromise, prosecute or
defend any action, claim or proceeding with respect thereto, and to sell,
assign, endorse, pledge, transfer and to make any agreement respecting, or
otherwise deal with, the same; provided, however, that nothing herein
contained shall be construed as requiring or obligating the Lender to make
any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Lender, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part
thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Lender shall be accountable only for amounts
actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or
agents shall be responsible to any Pledgor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
Waivers; Amendment. i) No failure or delay of the Lender in
exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Lender hereunder
are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provisions of this Agreement or
consent to any departure by any Pledgor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and
then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Pledgor in any case shall entitle such Pledgor to any other or further
notice or demand in similar or other circumstances.
Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Lender and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply.
Securities Act, etc. In view of the position of the Pledgors
in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of
1933, as now or hereafter in effect, or any similar statute hereafter
enacted analogous in purpose or effect (such Act and any such similar
statute as from time to time in effect being called the "Federal
Securities Laws") with respect to any disposition of the Pledged
Securities permitted hereunder. Each Pledgor understands that compliance
with the Federal Securities Laws might very strictly limit the course of
conduct of the Lender if the Lender were to attempt to dispose of all or
any part of the Pledged Securities, and might also limit the extent to
which or the manner in which any subsequent transferee of any Pledged
Securities could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Lender in any attempt to dispose
of all or part of the Pledged Securities under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Lender may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other
things, to acquire such Pledged Securities for their own account, for
investment, and not with a view to the distribution or resale thereof.
Each Pledgor acknowledges and agrees that in light of such restrictions
and limitations, the Lender, in its sole and absolute discretion, (a) may
proceed to make such a sale whether or not a registration statement for
the purpose of registering such Pledged Securities or part thereof shall
have been filed under the Federal Securities Laws and (b) may approach and
negotiate with a single potential purchaser to effect such sale. Each
Pledgor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a
public sale without such restrictions. In the event of any such sale, the
Lender shall incur no responsibility or liability for selling all or any
part of the Pledged Securities at a price that the Lender may in good
▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if
the sale were deferred until after registration as aforesaid or if more
than a single purchaser were approached. The provisions of this Section 11
will apply notwithstanding the existence of a public or private market
upon which the quotations or sales prices may exceed substantially the
price at which the Lender sells.
Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if
for any reason the Lender desires to sell any of the Pledged Securities of
the Borrower at a public sale, it will, at any time and from time to time,
upon the written request of the Lender, use its reasonable best efforts to
take or to cause the issuer of such Pledged Securities to take such action
and prepare, distribute and/or file such documents, as are required or
advisable in the reasonable opinion of counsel for the Lender to permit
the public sale of such Pledged Securities. Each Pledgor further agrees to
indemnify, defend and hold harmless the Lender any underwriter and their
respective officers, directors, affiliates and controlling persons from
and against all loss, liability, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Lender of legal
counsel), and claims (including the costs of investigation) that they may
incur insofar as such loss, liability, expense or claim arises out of or
is based upon any alleged untrue statement of a material fact contained in
any prospectus (or any amendment or supplement thereto) or in any
notification or offering circular, or arises out of or is based upon any
alleged omission to state a material fact required to be stated therein or
necessary to make the statements in any thereof not misleading, except
insofar as the same may have been caused by any untrue statement or
omission based upon information furnished in writing to such Pledgor or
the issuer of such Pledged Securities by the Lender expressly for use
therein. Each Pledgor further agrees, upon such written request referred
to above, to use its reasonable best efforts to qualify, file or register,
or cause the issuer of such Pledged Securities to qualify, file or
register, any of the Pledged Securities under the Blue Sky or other
securities laws of such states as may be requested by the Lender and keep
effective, or cause to be kept effective, all such qualifications, filings
or registrations. Each Pledgor will bear all costs and expenses of
carrying out its obligations under this Section 12. Each Pledgor
acknowledges that there is no adequate remedy at law for failure by it to
comply with the provisions of this Section 12 and that such failure would
not be adequately compensable in damages, and therefore agrees that its
agreements contained in this Section 12 may be specifically enforced.
Security Interest Absolute. All rights of the Lender
hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any agreement with respect to any of
the Obligations or any other agreement or instrument relating to any of
the foregoing, (b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument
relating to any of the foregoing, (c) any exchange, release or
nonperfection of any other collateral, or any release or amendment or
waiver of or consent to or departure from any guaranty, for all or any of
the Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Pledgor in
respect of the Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the Obligations).
Termination or Release. j) This Agreement and the security
interests granted hereby shall terminate when all the Obligations (other
than wholly contingent indemnification obligations) then due and owing
have been indefeasibly paid in full and the Lender has no further
commitment to lend under the Credit Agreement.
Upon any sale or other transfer by any Pledgor of any
Collateral that is permitted under the Credit Agreement to any person that
is not a Pledgor, or, upon the effectiveness of any written consent to the
release of the security interest granted hereby in any Collateral, the
security interest in such Collateral shall be automatically released.
In connection with any termination or release pursuant to
paragraph (a) or (b), the Lender shall execute and deliver to any Pledgor,
at such Pledgor's expense, all documents that such Pledgor shall
reasonably request to evidence such termination or release. Any execution
and delivery of documents pursuant to this Section 14 shall be without
recourse to or warranty by the Lender.
Notices. All communications and notices hereunder shall be in
writing and given as provided in the Credit Agreement. All communications
and notices hereunder to any Pledgor other than the Borrower shall be
given to it in care of the Borrower.
Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements, endorsement and instruments, as the Lender may at
any time reasonably request in connection with the administration and
enforcement of this Agreement or with respect to the Collateral or any
part thereof or in order better to assure and confirm unto the Lender its
rights and remedies hereunder.
Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party; and
all covenants, promises and agreements by or on behalf of any Pledgor that
are contained in this Agreement shall bind and inure to the benefit of its
successors and assigns. This Agreement shall become effective as to any
Pledgor when a counterpart hereof executed on behalf of such Pledgor shall
have been delivered to the Lender and a counterpart hereof shall have been
executed on behalf of the Lender, and thereafter shall be binding upon
such Pledgor and the Lender and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Lender and their
respective successors and assigns, except that no Pledgor shall have the
right to assign its rights hereunder or any interest herein or in the
Collateral (and any such attempted assignment shall be void), except as
expressly contemplated by this Agreement or the other Loan Documents. If
all the Capital Stock of a Pledgor is sold, transferred or otherwise
disposed of to a person that is not an Affiliate of the Borrower pursuant
to a transaction permitted by the Credit Agreement, such Pledgor shall be
released from its obligations under this Agreement without further action.
This Agreement shall be construed as a separate agreement with respect to
each Pledgor and may be amended, modified, supplemented, waived or
released with respect to any Pledgor without the approval of any other
Pledgor and without affecting the obligations of any other Pledgor
hereunder.
Survival of Agreement; Severability. k) All covenants,
agreements, representations and warranties made by each Pledgor herein and
in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lender and shall
survive the making by the Lender of the Term Loan, regardless of any
investigation made by the Lender and shall continue in full force and
effect as long as the principal of or any accrued interest on the Term
Loan or any other fee or amount payable under this Agreement or other Loan
Document is outstanding and unpaid and as long as the Commitment has not
been terminated.
In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision
in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute a single contract, and shall
become effective as provided in Section 17. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
Rules of Interpretation. The rules of interpretation specified
in Section 1.3 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting this
Agreement.
Jurisdiction; Consent to Service of Process. l) Each Pledgor
hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
any Federal court of the United States of America sitting in New York, and
any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent
permitted by applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Lender may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan
Documents against any Pledgor or its properties in the courts of any
jurisdiction.
Each Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the
other Loan Documents in any New York State or Federal court sitting in New
York. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 15. Nothing in
this Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
Waiver Of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
[Reserved]
Execution of Financing Statements. To the extent permitted by
applicable law, pursuant to Section 9-402 of the Uniform Commercial Code
as in effect in the State of New York or its equivalent in other
jurisdictions, each Pledgor authorizes the Lender to file financing
statements with respect to the Collateral owned by it without the
signature of such Pledgor in such form and in such filing offices as the
Lender reasonably determines appropriate to perfect the security interests
of the Lender under this Agreement. To the extent permitted by applicable
law, a carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EQUIVEST FINANCE, INC.
By:
Name:
Title:
PEPPERTREE RESORTS, LTD.
By:
Name:
Title:
PEPPERTREE ACQUISITION II CORP.
By:
Name:
Title:
BANK OF AMERICA, N.A., as Lender
By:
Name:
Title:
2
Exhibit 10.25
Schedule I to the
Pledge Agreement
CAPITAL STOCK
umber and
umber of Nlass ercentage
NertificatRegistered Cf Shares Pf Shares
--------- --------- ------
Issuer C Owner o o
------ - ----- -
I. Peppertree quivest Finance, Inc 00%
Acquisition Corp. E . 1
II. Peppertree Peppertree Resorts, 00%
Vacation Club Ltd. 1
III. Peppertree Peppertree Resorts, 00%
Resorts Villas Ltd. 1
IV. Peppertree eppertree Acquisition II 00%
Realty,
Inc. P Corp. 1
V. Peppertree eppertree Resorts, 00%
Resorts Ptd.
Management L 1
VI. Peppertree quivest Finance, Inc 00%
Acquisition
II Corp. E . 1
DEBT SECURITIES
Holder Issuer Principal Amount Date of Note Maturity Date
------ ------ ---------------- ------------ -------------
Equivest Great Smokies November 17, December 31,
Finance, Inc. Hotel Association $3,600,000 1999 1999
