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EXHIBIT 10.36
PLEDGE AGREEMENT
This PLEDGE AGREEMENT ("Agreement"), dated as of June 13, 1997, is made
by BANNER HOLDINGS, INC., a Delaware corporation ("Holdings"), BANNER'S CENTRAL
ELECTRIC, INC., a California corporation ("Parent"), CENTRAL FINANCIAL
ACCEPTANCE CORPORATION, a Delaware corporation ("Borrower"), and each of the
other Persons listed on the signature pages hereto, together with each of the
Persons who may become a party hereto pursuant to Section 14 of this Agreement
(each a "Grantor" and collectively, "Grantors"), jointly and severally in favor
of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent under the Loan Agreement
hereafter referred to, and in favor of each of the Lenders therein named
(collectively, "Secured Party"), with reference to the following facts:
RECITALS
A. Pursuant to the Revolving Loan Agreement of even date herewith
by and among Borrower, the Lenders that are party thereto, and Xxxxx Fargo Bank,
National Association, as Agent for the Lenders (as such agreement may from time
to time be extended, modified, renewed, restated, supplemented or amended, the
"Loan Agreement"), the Lenders have agreed to extend certain credit facilities
to Borrower.
B. The Loan Agreement provides, as a condition precedent to the
Lenders' obligation to extend credit facilities to Borrower, that Grantors shall
enter into this Agreement, and shall pledge certain Pledged Collateral to
Secured Party, all under the terms and conditions set forth in this Agreement.
C. Each Grantor expects to realize direct and indirect benefits as
a result of the availability of the aforementioned credit facilities.
AGREEMENT
NOW, THEREFORE, in order to induce the Lenders to extend credit
facilities to Borrower under the Loan Agreement, and for other good and valuable
consideration, the receipt and adequacy of which hereby are acknowledged,
Grantors hereby jointly and severally represent, warrant, covenant, agree, and
pledge as follows:
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1. Definitions. This Agreement is the Pledge Agreement referred to
in the Loan Agreement. Terms defined in the Loan Agreement and not otherwise
defined in this Agreement shall have the meanings given those terms in the Loan
Agreement as though set forth herein in full. The following terms shall have the
meanings respectively set forth after each:
"Agreement" means this Pledge Agreement, and any extensions,
modifications, renewals, restatements, supplements or amendments hereof.
"Certificates" means all certificates, instruments or other documents
now or hereafter representing or evidencing any Pledged Securities.
"Distribution" means dividends, distributions, redemption payments,
liquidation payments, and all rights to any of the foregoing.
"Issuer" means any issuer of any Pledged Securities.
"Pledged Collateral" means any and all property of Grantors now or
hereafter pledged and delivered to Secured Party, and includes without
limitation (a) the Pledged Securities, and any Certificates representing or
evidencing the same, (b) any and all existing and future Intercompany Notes,
(c) and all proceeds and products of any of the foregoing, and (d) any and
all collections, Distributions, interest or premiums with respect to any of
the foregoing.
"Pledged Securities" means (a) any and all shares of capital stock of
Parent now or hereafter owned by Holdings, (b) any and all shares of capital
stock of Borrower now or hereafter owned by Parent, (c) any and all shares
of capital stock of the Domestic Subsidiaries of Grantors now or hereafter
owned by Grantors, (d) sixty-five percent (65%) of the capital stock of the
Foreign Subsidiaries of Grantors now or hereafter owned by Grantors, (e) any
and all securities now or hereafter issued in substitution, exchange or
replacement therefor, or with respect thereto, (f) any and all warrants,
options or other rights to subscribe to or acquire any additional capital
stock of the Domestic Subsidiaries and the Foreign Subsidiaries owned by
Grantors or any of them (except that in no event shall more than sixty-five
percent (65%) of the capital stock of any Foreign Subsidiary be pledged to
Secured Party), and (g) any and all equity interests (and the Certificates
or other written evidence representing such equity interests, and any
interest of any Grantor in the entries on the books of any securities
intermediary or financial intermediary pertaining thereto) now or hereafter
acquired by any Grantor in any existing or future Domestic Subsidiary or
Foreign Subsidiary.
"Secured Party" means the Agent (acting as the Agent and/or on behalf of
the Lenders), and the Lenders, and each of them, and any one or more of
them. Subject to the terms hereof and of the Loan Agreement, any right,
remedy, privilege or power of
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Secured Party may be exercised by the Agent, or by the Requisite Lenders, or
by any Lender acting with the consent of the Requisite Lenders.
2. Incorporation of Representations, Warranties, Covenants and
Other Provisions of Loan Documents. This Agreement is one of the Loan Documents
referred to in the Loan Agreement. All representations, warranties, affirmative
and negative covenants and other provisions contained in any Loan Document that
are applicable to Loan Documents generally are fully applicable to this
Agreement and are incorporated herein by this reference as though set forth
herein in full. Without limiting the generality of the foregoing, the
arbitration provisions set forth in Section 11.24 of the Loan Agreement are
incorporated herein and each Grantor agrees to be bound by such provisions and
that any "Dispute" (as such term is defined in such Section) relating to this
Assignment shall be resolved in accordance with such provisions. In addition,
each Grantor hereby represents and warrants to Secured Party as follows:
(a) Each Grantor has good and marketable title to the Pledged
Collateral in which such Grantor is purporting to grant a security interest to
the Agent on behalf of Secured Party, and the Pledged Collateral is not subject
to any Lien other than Permitted Encumbrances;
(b) Each Grantor has the right and power to pledge the Pledged
Collateral owned by such Grantor to Agent on behalf of Secured Party;
(c) Upon delivery to the Agent of the Pledged Collateral referred to
in this Agreement, the Agent will have a first priority perfected security
interest in the Pledged Collateral securing the Obligations;
(d) All shares of capital stock that constitute a portion of the
Pledged Collateral are duly authorized, validly issued in accordance with all
applicable Laws, fully paid and non-assessable, and include one hundred percent
(100%) of the issued and outstanding shares of common stock of each of the
Domestic Subsidiaries and sixty-five percent (65%) of the issued and outstanding
common stock of each of the Foreign Subsidiaries.
3. Creation of Security Interest.
3.1 Pledge of Pledged Collateral. Each Grantor hereby pledges to
Agent on behalf of Secured Party and grants to Agent on behalf of Secured Party
a security interest in and to all Pledged Collateral for the benefit of Secured
Party, together with all products, proceeds, Distributions, Cash, instruments
and other Property, and any and all rights, titles, interests, privileges,
benefits and preferences appertaining or incidental to the Pledged Collateral.
The security interest and pledge created by this Section 3.1 shall continue in
effect so long as any Obligation is owed to Secured Party or any commitment to
extend credit to Borrower remains outstanding from Secured Party.
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3.2 Delivery of Certain Pledged Collateral. On or before the
Closing Date, Grantors shall cause to be pledged and delivered to Agent for the
benefit of Secured Party the Certificates evidencing the Intercompany Notes and
the capital stock of each of the issuers listed on Schedule 1 hereto. Following
the Closing Date, additional Pledged Collateral may from time to time be
delivered to Agent for the benefit of Secured Party by agreement between Secured
Party and Grantors. All Certificates at any time delivered to Agent for the
benefit of Secured Party shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to Secured Party. Agent shall hold
all Certificates pledged hereunder pursuant to this Agreement unless and until
released in accordance with Section 3.3 of this Agreement.
3.3 Release of Pledged Collateral. Pledged Collateral that is
required to be released from the pledge and security interest created by this
Agreement in order to permit any Grantor to consummate any disposition of stock
or assets, merger, consolidation, amalgamation, acquisition, or dividend payment
or distribution that such Grantor is entitled to consummate pursuant to the Loan
Documents, if any, shall be so released by Agent at such times and to the extent
necessary to permit such Grantor to consummate such permitted transactions
promptly following the Agent's receipt of written request therefor by such
Grantor specifying the purpose for which release is requested and such further
certificates or other documents as Agent on behalf of Secured Party reasonably
shall request in its discretion to confirm that such Grantor is per mitted to
consummate such permitted transaction and to confirm Secured Party's replacement
Lien on appropriate collateral (unless replacement collateral is not required
pursuant to the Loan Documents). Any request for any permitted release shall be
transmitted to Agent on behalf of Secured Party. Agent, at the expense of
Grantors, promptly shall redeliver all Certificates and shall execute and
deliver to Grantors all documents requested by Grantors that are reasonably
necessary to release Pledged Collateral of record whenever Grantors shall be
entitled to the release thereof in accordance with this Section 3.3.
4. Security for Obligations. This Agreement and the pledge and
security interests granted herein secure the prompt payment, in full in cash,
and full performance of, all Obligations, whether for principal, interest, fees,
expenses or otherwise, including, without limitation, all Obligations of
Borrower now or hereafter existing under the Loan Documents, all Obligations of
Grantors now or hereafter existing under this Agreement, and all interest that
accrues on all or any part of any of the Obligations of Borrower and/or Grantors
after the filing of any petition or pleading against Borrower, Grantor or any
other Person for a proceeding under any Debtor Relief Law.
5. Further Assurances. Each Grantor agrees that at any time, and
from time to time, at its own expense such Grantor will promptly execute,
deliver and file or record all further financing statements, instruments and
documents, and will take all further actions, including, without limitation,
causing the issuers of, or obligors on any of the Pledged Collateral to so
execute, deliver, file or take other actions, that may be necessary or
desirable, or that
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Secured Party reasonably may request, in order to perfect and protect any pledge
or security interest granted hereby or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged Collateral
and to preserve, protect and maintain the Pledged Collateral and the value
thereof, including, without limitation, payment of all taxes, assessments and
other charges imposed on or relating to the Pledged Collateral. Grantors hereby
(a) irrevocably direct the issuers of or obligors on any such Collateral, or
each securities intermediary, registrar, transfer agent or trustee for any such
Collateral, to accept the provisions of this Agreement as conclusive evidence of
the right of Secured Party to effect any transfer or exercise any right
hereunder or with respect to any such Collateral, notwithstanding any other
notice or direction to the contrary heretofore or hereafter given by such
Grantor or any other Person to any of such parties; and (b) covenant and agree
to transfer or reinvest any such Collateral, immediately upon Secured Party's
request, in such manner as may be deemed necessary or desirable by Secured Party
to create and perfect, and to continue and preserve, an indefeasible security
interest in such Collateral in favor of Secured Party, or the priority, control
and exclusivity thereof, free of all other liens and claims except as may be
permitted by the terms hereof.
6. Voting Rights; Dividends; etc. So long as no Default or Event of
Default under the Loan Agreement occurs and remains continuing:
6.1 Voting Rights. Grantors shall be entitled to exercise any
and all voting and other consensual rights pertaining to the Pledged Securities,
or any part thereof, for any purpose not inconsistent with the terms of this
Agreement, the Loan Agreement, or the other Loan Documents.
6.2 Interest and Distribution Rights. Grantors shall be entitled
to receive and to retain and use any and all interest, premiums or Distributions
paid in respect of the Pledged Collateral; provided, however, that any and all
such Distributions received in the form of capital stock (or other equity
interests) shall be, and the Certificates representing such capital stock (or
other interest) forthwith shall be delivered to Agent to hold as, Pledged
Collateral and shall, if received by any Grantor, be received in trust for the
benefit of Secured Party, be segregated from the other property of such Grantor,
and forthwith be delivered to Agent for the benefit of Secured Party as Pledged
Collateral in the same form as so received (with any necessary endorsements).
7. Rights During Default or Event of Default. When a Default or
Event of Default has occurred and is continuing:
7.1 Voting and Distribution Rights. At the option of Secured
Party, all rights of any Grantor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to Section 6.1
above, and to receive the interest, premiums and Distributions which it would
otherwise be authorized to receive and retain pursuant to Section 6.2 above,
shall cease, and all such rights shall thereupon become vested in Agent for the
benefit of
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Secured Party who shall thereupon, at the direction of Agent, have the sole
right to exercise such voting and other consensual rights and to receive and to
hold as Pledged Collateral such Distributions. Agent shall give notice to each
applicable Grantor of Secured Party's election to exercise voting rights with
respect to the Pledged Collateral; provided, however, that (i) neither the
giving of such notice nor the receipt thereof by any Grantor shall be a
condition to exercise of any rights of Secured Party hereunder, and (ii) neither
Agent nor any Secured Party shall incur any liability for failing to give such
notice.
7.2 Distributions Held in Trust. All Distributions which are
received by any Grantor contrary to the provisions of this Agreement shall be
received in trust for the benefit of Secured Party, shall be segregated from
other funds of such Grantor, and forthwith shall be paid over to Agent for the
account of Secured Party as Pledged Collateral in the same form as so received
(with any necessary endorsements).
7.3 Irrevocable Proxy. Each Grantor hereby revokes all previous
proxies with regard to the Pledged Securities and appoints Agent for the benefit
of Secured Party as its proxyholder to attend and vote at any and all meetings
of the shareholders of the corporations which issued the Pledged Securities, and
any adjournments thereof, held on or after the date of the giving of this proxy
and prior to the termination of this proxy and to execute any and all written
consents of shareholders of such corporations executed on or after the date of
the giving of this proxy and prior to the termination of this proxy, with the
same effect as if such Grantor had personally attended the meetings or had
personally voted its shares or had personally signed the written consents;
provided, however, that the proxyholder shall have rights hereunder only upon
the occurrence and during the continuance of a Default or Event of Default under
the Loan Agreement. Each Grantor hereby authorizes Agent to substitute another
Person as the proxyholder and, upon the occurrence or during the continuance of
any Event of Default, hereby authorizes and directs the proxyholder to file this
proxy and the substitution instrument with the secretary of the appropriate
corporation. This proxy is coupled with an interest and is irrevocable until
such time as no commitment to extend credit to Borrower remains outstanding from
Secured Party and until such time as all Obligations have been paid and
performed in full.
8. Transfers and Other Liens. Each Grantor agrees that, except as
specifically permitted under the Loan Documents, it will not (i) sell, assign,
exchange, transfer or otherwise dispose of, or contract to sell, assign,
exchange, transfer or otherwise dispose of, or grant any option with respect to,
any of the Pledged Collateral, (ii) create or permit to exist any Lien upon or
with respect to any of the Pledged Collateral, except for Permitted
Encumbrances, or (iii) take any action with respect to the Pledged Collateral
which is inconsistent with the provisions or purposes of this Agreement or any
other Loan Document.
9. Secured Party Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints Agent for the benefit of Secured Party as such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor,
and in the name of such Grantor, or
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otherwise, from time to time, in Secured Party's sole and absolute discretion to
do any of the following acts or things: (a) to do all acts and things and to
execute all documents necessary or advisable to perfect and continue perfected
the security interests created by this Agreement and to preserve, maintain and
protect the Pledged Collateral; (b) to do any and every act which such Grantor
is obligated to do under this Agreement; (c) to prepare, sign, file and record,
in such Grantor's name, any financing statement covering the Pledged Collateral;
and (d) to endorse and transfer the Pledged Collateral upon foreclosure by
Secured Party; provided, however, that Agent shall be under no obligation
whatsoever to take any of the foregoing actions, and neither Agent nor any
Secured Party shall have any liability or responsibility for any act (other than
Agent's or any Secured Party's own gross negligence or willful misconduct) or
omission taken with respect thereto. Each Grantor hereby agrees to repay
immediately upon demand all reasonable costs and expenses incurred or expended
by Secured Party in exercising any right or taking any action under this
Agreement, together with interest as provided for in the Loan Agreement.
10. Agent May Perform Obligations. If any Grantor fails to perform
any Obligation contained herein, Agent for the benefit of Secured Party may, but
without any obliga tion to do so and without notice to or demand upon Grantors,
perform the same and take such other action as Secured Party may deem necessary
or desirable to protect the Pledged Collateral or Secured Party's security
interests therein, Agent being hereby authorized (without limiting the general
nature of the authority hereinabove conferred) to pay, purchase, contest and
compromise any Lien which in the reasonable judgment of Secured Party appears to
be prior or superior to Secured Party's security interests, and in exercising
any such powers and authority to pay necessary expenses, employ counsel and pay
reasonable attorneys' fees. Each Grantor hereby agrees to repay immediately upon
demand all sums so expended by Secured Party, together with interest from the
date of expenditure at the rates provided for in the Loan Agreement. Neither
Agent nor any Secured Party shall be under any duty or obligation to preserve,
maintain or protect the Pledged Collateral or any of any Grantor's rights or
interest therein, exercise any vot ing rights with respect to the Pledged
Collateral, whether a Default or Event of Default has occurred or is continuing,
or make or give any notices of default, presentments, demands for performance,
notices of nonperformance or dishonor, protests, notices of protest or notice of
any other nature whatsoever in connection with the Pledged Collateral on behalf
of any Grantor or any other Person having any interest therein; and neither
Agent nor any Secured Party assumes and none shall be obligated to perform the
obligations of any Grantor, if any, with respect to the Pledged Collateral.
11. Reasonable Care. Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collat eral is accorded treatment substantially
similar to that which Agent accords its own property, it being understood that
Agent shall not have any responsibility for ascertaining or taking action with
respect to maturities, calls, conversions, exchanges, tenders or other matters
relative to any Pledged Collateral, whether or not Agent has or is deemed to
have knowledge of such matters,
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or taking any necessary steps to preserve rights against any Person with respect
to any Pledged Collateral.
12. Events of Default and Remedies.
12.1 Rights Upon Event of Default. Upon the occurrence and
during the continuance of an Event of Default under the Loan Agreement, Grantors
shall be in default here under and Secured Party shall have in any jurisdiction
where enforcement is sought, in addition to all other rights and remedies that
Secured Party may have under this Agreement and under applicable Law or in
equity, all of its rights and remedies as a secured party under the Uniform
Commercial Code as enacted in any such jurisdiction, and in addition the
following rights and remedies, all of which may be exercised with or without
further notice to any Grantor:
(a) to notify any Issuer of any Pledged Securities and any and all
other obligors on any Pledged Collateral that the same has been pledged to Agent
for the benefit of Secured Party and that all Distributions and other payments
thereon are to be made directly and exclusively to Agent for the account of
Secured Party; to renew, extend, modify, amend, accelerate, accept partial
payments on, make allowances and adjustments and issue credits with respect to,
release, settle, compromise, compound, collect or otherwise liquidate, on terms
acceptable to Secured Party, in whole or in part, the Pledged Collateral and any
amounts owing thereon or any guaranty or security therefor; to enter into any
other agreement relating to or affecting the Pledged Collateral; and to give all
consents, waivers and ratifications with respect to the Pledged Collateral and
exercise all other rights (including voting rights), powers and remedies and
otherwise act with respect thereto as if Secured Party were the owner thereof;
(b) to enforce payment and prosecute any action or proceeding with
respect to any and all of the Pledged Collateral and take or bring, in Secured
Party's name(s) or in the name of the applicable Grantor(s), all steps, actions,
suits or proceedings deemed by Secured Party necessary or desirable to effect
collection of or to realize upon the Pledged Collateral;
(c) in accordance with applicable Law, to take possession of the
Pledged Collateral with or without judicial process;
(d) to endorse, in the name of the applicable Grantor(s), all
checks, notes, drafts, money orders, instruments and other evidences of payment
relating to the Pledged Collateral;
(e) to transfer any or all of the Pledged Collateral into the name
of Secured Party or its nominee or nominees; and
(f) in accordance with applicable Law, to foreclose the Liens and
security interests created under this Agreement or under any other agreement
relating to the Pledged
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Collateral by any available judicial procedure or without judicial process, and
to sell, assign or otherwise dispose of the Pledged Collateral or any part
thereof, either at public or private sale or at any broker's board or securities
exchange, in lots or in bulk, for cash, on credit or on future delivery, or
otherwise, with or without representations or warranties, and upon such terms as
shall be acceptable to Secured Party;
all at the sole option of and in the sole discretion of Secured Party.
12.2 Notice of Sale. Secured Party shall give Grantors at least
five (5) days' written notice of sale of all or any part of the Pledged
Collateral. Any sale of the Pledged Collateral shall be held at such time or
times and at such place or places as Secured Party may determine in the exercise
of its sole and absolute discretion. Secured Party may bid (which bid may be, in
whole or in part, in the form of cancellation of Obligations) for and purchase
for the account of Secured Party or any nominee of Secured Party the whole or
any part of the Pledged Collateral. Secured Party shall not be obligated to make
any sale of the Pledged Collateral if it shall determine not to do so regardless
of the fact that notice of sale of the Pledged Collateral may have been given.
Secured Party may, without notice or publication, adjourn the sale 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.
12.3 Private Sales. Upon the occurrence and during the
continuance of an Event of Default under the Loan Agreement, whether or not any
of the Pledged Collateral has been effectively registered under the Securities
Act of 1933, as amended, or other applicable Laws ("Registered Collateral"),
Secured Party may, in its sole and absolute discretion, sell all or any part of
the Pledged Collateral at private or public sale in any such manner and under
such circumstances as may be permitted by law. Without limiting the foregoing,
Secured Party may (i) approach and negotiate with a limited number of potential
purchasers, and (ii) restrict the prospective bidders or purchasers to Persons
who will represent and agree that they are purchasing the Pledged Collateral for
their own account for investment and not with a view to the distribution or
resale thereof. In the event that any of the Pledged Collateral other than
Registered Collateral is sold at private sale, each Grantor agrees that if the
Pledged Collateral is sold for a price which Secured Party in good faith
believes to be reasonable, then (A) the sale shall be deemed to be commercially
reasonable in all respects, (B) such Grantor shall not be entitled to a credit
against the Obligations in an amount in excess of the purchase price, and (C)
Secured Party shall not incur any liability or responsibility to such Grantor in
connection therewith, notwithstanding the possibility that a substantially
higher price might have been realized at a public sale. Each Grantor recognizes
that a ready market may not exist for Pledged Collateral which is not regularly
traded on a recognized securities exchange or in another recognized market, and
that a sale by Secured Party of any such Pledged Collateral for an amount
substantially less than a pro rata share of the fair market value of such
Issuer's assets minus liabilities may be commercially reasonable in view of the
difficulties that may be encountered in
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attempting to sell a large amount of Pledged Collateral or Pledged Collateral
that is privately traded.
12.4 Title of Purchasers. Upon consummation of any sale of
Pledged Collateral pursuant to this Section 12, Agent on behalf of Secured Party
shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each such purchaser at any
such sale shall hold the Pledged Collateral sold absolutely free from any claim
or right on the part of Grantors, and each Grantor hereby waives (to the extent
permitted by applicable Law) all rights of redemption, stay and 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. If the sale of all or any part of the
Pledged Collateral is made on credit or for future delivery, Secured Party shall
not be required to apply any portion of the sale price to the Obligations until
such amount actually is received by Secured Party, and any Pledged Collateral so
sold may be retained by Secured Party until the sale price is paid in full by
the purchaser or purchasers thereof. Secured Party shall not incur any liability
in case any such purchaser or purchasers shall fail to pay for the Pledged
Collateral so sold, and, in case of any such failure, the Pledged Collateral may
be sold again upon like notice.
12.5 Disposition of Proceeds of Sale. The net cash proceeds
resulting from the collection, liquidation, sale or other disposition of the
Pledged Collateral shall be applied, first, to the reasonable costs and expenses
(including reasonable attorneys' fees) of retaking, holding, storing, processing
and preparing for sale, selling, collecting and liquidating the Pledged
Collateral, and the like; second, to the satisfaction of all Obligations, with
application as to any particular Obligations to be in the order set forth in the
Loan Agreement or other Loan Documents; and, third, to all other indebtedness
secured hereby in such order and manner as Secured Party in its sole and
absolute discretion may determine.
13. Continuing Effect. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor 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 any
Grantor'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 Obligations, or any
part thereof, is, pursuant to applicable Law, rescinded or reduced in amount, or
must otherwise be restored or returned by Agent or any Lender, 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 Obligations shall
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
14. Additional Grantors. The initial Grantors hereunder shall be
Holdings, Parent, Borrower and Borrowers's Significant Subsidiaries, if any, as
are signatories hereto. From time to time following the Closing Date, additional
Domestic Subsidiaries of Borrower may
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become parties hereto, as additional Grantors, by executing and delivering to
the Agent an Instrument of Joinder substantially in the form of Exhibit A
hereto, accompanied by such documentation as the Agent may require in connection
therewith, wherein such additional Grantors agree to become a party hereto and
to be bound hereby. Upon delivery of such Instrument of Joinder to and
acceptance thereof by the Agent, notice of which acceptance is hereby waived by
Grantors, each such additional Grantor shall be as fully a party hereto as if
such Grantor were an original signatory hereof. Each Grantor expressly agrees
that its Secured Obligations and the Liens upon its property granted herein
shall not be affected or diminished by the addition or release of additional
Grantors hereunder, nor by any election of Secured Party not to cause any
Domestic Subsidiary of Borrower to become an additional Grantor hereunder. This
Agreement shall be fully effective as to any Grantor who is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder.
15. Covenant Not to Issue Uncertificated Securities. Each Grantor
represents and warrants to Secured Party that all of the capital stock (or other
equity interests) of each of the Issuers is in certificated form (as
contemplated by Article 8 of the California Uniform Commercial Code), and
covenants to Secured Party that it will not cause or permit any Issuer to issue
any capital stock (or other equity interest) in uncertificated form or seek to
convert all or any part of its existing capital stock (or other equity interest)
into uncertificated form (as contem plated by Article 8 of the California
Uniform Commercial Code). The foregoing representations, warranties and
covenants shall survive the execution and delivery of this Agreement.
16. Covenant Not to Dilute Interests of Secured Party in Pledged
Securities. Each Grantor represents, warrants and covenants to Secured Party
that it will not at any time cause or permit any Issuer to issue any additional
capital stock (or other equity interest), or any warrants, options or other
rights to acquire any additional capital stock (or other equity interest), if
the effect thereof would be to dilute in any way the interests of Secured Party
in any Pledged Securities or in any Issuer.
17. Indemnity. Each Grantor agrees to indemnify and hold harmless
the Agent and each of the Lenders from and against any and all claims, demands,
losses, judgments and liabilities (including without limitation liabilities for
penalties) of whatsoever kind or nature, and to reimburse each such indemnified
party for all costs and expenses, including without limitation reasonable
attorneys' fees and expenses and/or costs and expenses associated with, arising
out of or in connection with this Agreement or the exercise by such indemnified
party of any right or remedy granted to it hereunder or under the Loan Documents
other than arising from the gross negligence or willful misconduct of such
indemnified party. In no event shall the Agent or any Lender be liable for any
matter or thing in connection with this Agreement other than to account for
monies actually received by it in accordance with the terms hereof. If and to
the extent that the agreements of the Grantors under this Section 17 are
unenforceable for any reason, each Grantor hereby agrees to make the maximum
contribution to the payment and satisfaction as such obligations which is
permissible under applicable Law.
-11-
12
18. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same agreement.
20. Additional Powers and Authorization. The Agent has been
appointed as the Agent hereunder pursuant to the Loan Agreement and shall be
entitled to the benefits of the Loan Agreement and the other Loan Documents.
Notwithstanding anything contained herein to the contrary, the Agent may employ
agents, trustees, or attorneys-in-fact and may vest any of them with any
property (including, without limitation, the Pledged Collateral), title, right
or power deemed necessary for the purposes of such appointment.
21. Incorporation of Suretyship Provisions and Waivers. The attached
Exhibit B, "Suretyship Provisions and Waivers," is hereby incorporated by this
reference as though set forth herein in full.
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be duly
executed as of the date first above written.
"Grantors"
BANNER'S CENTRAL ELECTRIC, INC.
a California corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
BANNER HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
-12-
13
CENTRAL FINANCIAL
ACCEPTANCE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
CENTRAL CONSUMER FINANCE
COMPANY, a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
CENTRAVEL, INC., a California corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
-13-
14
C.E.A. ACQUISITION CORPORATION,
a California corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Chief Executive Officer
ACCEPTED AND AGREED TO:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Agent
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Title: Vice President
--------------------------------------
-14-
15
EXHIBIT A
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is executed as of ____________,
19___, by _________________________, a ___________________________ ("Joining
Party"), and delivered to Xxxxx Fargo Bank, National Association, as Agent,
pursuant to the Pledge Agreement dated as of June 13, 1997 made by Banner
Holdings, Inc., a Delaware corporation, Banner's Central Electric, Inc., a
Calfornia corporation, Central Financial Acceptance Corporation, a Delaware
corporation, and the Persons listed on the signature pages thereto
(collectively, the "Grantors") in favor of the Agent and the Lenders (the
"Pledge Agreement"). Terms used but not defined in this Joinder shall have the
meanings defined for those terms in the Pledge Agreement.
RECITALS
(a) The Pledge Agreement was made by the Grantors in favor of the
Agent for the benefit of the Lenders that are parties to that certain Revolving
Loan Agreement dated as of June 13, 1997, by and among Central Financial
Acceptance Corporation, a Delaware corporation ("Borrower"), the Lenders that
are parties thereto, and Xxxxx Fargo Bank, National Association, as the Agent
for the Lenders.
(b) Joining Party is a Significant Subsidiary of Borrower, and as
such is required pursuant to the Revolving Loan Agreement and the Pledge
Agreement to become a Grantor under the terms and conditions of the Pledge
Agreement.
(c) Joining Party expects to realize direct and indirect benefits as
a result of the availability to Borrower of the credit facilities under the
Revolving Loan Agreement.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(i) By this Joinder, Joining Party becomes a "Grantor" under and
pursuant to Section 14 of the Pledge Agreement. Joining Party agrees that, upon
its execution hereof, it will become a Grantor under the Pledge Agreement with
respect to all Obligations of Borrower heretofore or hereafter incurred under
the Loan Documents, and will be bound by all terms, conditions, and duties
applicable to a Grantor under the Pledge Agreement .
Exhibit A-1
16
(ii) The effective date of this Joinder is _________, 199___.
"Joining Party"
_________________________________
a _______________________________
By:______________________________
Title:___________________________
ACKNOWLEDGED:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Agent
By:__________________________
Title:_______________________
Exhibit A-2
17
EXHIBIT B
SURETYSHIP PROVISIONS AND WAIVERS
1. Waivers and Consents. Each Grantor acknowledges that the Liens
created or granted herein will or may secure obligations of Persons other than
such Grantor and, in full recognition of that fact, each Grantor consents and
agrees that Secured Party may, at any time and from time to time, without notice
or demand, and without affecting the enforceability or security hereof:
(a) supplement, modify, amend, extend, renew, accelerate, or
otherwise change the time for payment or the terms of the Obligations or any
part thereof, including any increase or decrease of the rate(s) of interest
thereon;
(b) supplement, modify, amend or waive, or enter into or give any
agreement, approval or consent with respect to, the Obligations or any part
thereof or any of the Loan Documents or any additional security or guaranties,
or any condition, covenant, default, remedy, right, representation or term
thereof or thereunder;
(c) accept new or additional instruments, documents or agreements in
exchange for or relative to any of the Loan Documents or the Obligations or any
part thereof;
(d) accept partial payments on the Obligations;
(e) receive and hold additional security or guaranties for the
Obligations or any part thereof;
(f) release, reconvey, terminate, waive, abandon, subordinate,
exchange, substitute, transfer and enforce any security or guaranties, and apply
any security and direct the order or manner of sale thereof as Secured Party in
its sole and absolute discretion may determine;
(g) release any Person or any guarantor from any personal liability
with respect to the Obligations or any part thereof;
(h) settle, release on terms satisfactory to Secured Party or by
operation of applicable laws or otherwise liquidate or enforce any Obligations
and any security or guaranty therefor in any manner, consent to the transfer of
any security and bid and purchase at any sale; and
(i) consent to the merger, change or any other restructuring or
termination of the corporate existence of Borrower or any other Person, and
correspondingly restructure the
Exhibit B-1
18
Obligations, and any such merger, change, restructuring or termination shall not
affect the liabil ity of any Grantor or the continuing existence of any Lien
hereunder, under any other Loan Document to which any Grantor is a party or the
enforceability hereof or thereof with respect to all or any part of the
Obligations.
Upon the occurrence of and during the continuance of any Event of
Default, Secured Party may enforce this Agreement independently as to each
Grantor and independently of any other remedy or security Secured Party at any
time may have or hold in connection with the Obligations, and it shall not be
necessary for Secured Party to marshal assets in favor of any Grantor, Borrower
or any other Person or to proceed upon or against and/or exhaust any other
security or remedy before proceeding to enforce this Agreement. Each Grantor
expressly waives any right to require Secured Party to marshal assets in favor
of such Grantor, Borrower or any other Person or to proceed against any other
Person or any collateral provided by any other Person, and agrees that Secured
Party may proceed against any Person and/or collateral in such order as it shall
determine in its sole and absolute discretion. Secured Party may file a separate
action or actions against any Grantor, whether action is brought or prosecuted
with respect to any other security or against any other Grantor, Borrower or any
other Person, or whether any other Person is joined in any such action or
actions. Each Grantor agrees that Secured Party and Borrower and any other
Person may deal with each other in connection with the Obligations or otherwise,
or alter any contracts or agreements now or hereafter existing between any of
them, in any manner whatsoever, all without in any way altering or affecting the
security of this Agreement. Secured Party's rights hereunder shall be reinstated
and revived, and the enforceability of this Agreement shall continue, with
respect to any amount at any time paid on account of the Obligations which
thereafter shall be required to be restored or returned by Secured Party upon
the bankruptcy, insolvency or reorganization of Borrower, any Grantor or any
other Person, or otherwise, all as though such amount had not been paid. The
Liens created or granted herein and the enforceability of this Agreement at all
times shall remain effective to secure the full amount of all the Obligations
including, without limitation, the amount of all loans and interest thereon at
the rates provided for in the Loan Agreement and the note(s) thereunder, even
though the Obligations, including any part thereof or any other security or
guaranty therefor, may be or hereafter may become invalid or otherwise
unenforceable as against Borrower or any other Person and whether or not
Borrower or any other Person shall have any personal liability with respect
thereto. Each Grantor expressly waives any and all defenses now or hereafter
arising or asserted by reason of (a) any disability or other defense of Borrower
or any other Person with respect to the Obligations, (b) the unenforceability or
invalidity of any security or guaranty for the Obligations or the lack of
perfection or continuing perfection or failure of priority of any security for
the Obligations, (c) the cessation for any cause whatsoever of the liability of
Borrower or any other Person (other than by reason of the full payment and
performance of all Obligations), (d) any failure of Secured Party to marshal
assets in favor of such Grantor or any other Person, (e) except as otherwise
provided in this Agreement, any failure of Secured Party to give notice of sale
or other disposition of collateral to such Grantor or any other Person or any
defect in any notice that may be given in connection with any sale or
disposition of collateral, (f) except as otherwise provided in this Agreement,
any failure of Secured Party to comply with
Exhibit B-2
19
applicable Laws in connection with the sale or other disposition of any
collateral or other security for any Obligation, including without limitation
any failure of Secured Party to conduct a commercially reasonable sale or other
disposition of any collateral or other security for any Obligation, (g) any act
or omission of Secured Party or others that directly or indirectly results in or
aids the discharge or release of Borrower, any Grantor or any other Person or
the Obligations or any other security or guaranty therefor by operation of law
or otherwise, (h) any Law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligation, (i) any failure of Secured Party to
file or enforce a claim in any bankruptcy or other proceeding with respect to
any Person, (j) the election by Secured Party, in any bankruptcy proceeding of
any Person, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code, (k) any extension of credit or the grant of any
Lien under Section 364 of the United States Bankruptcy Code, (l) any use of cash
collateral under Section 363 of the United States Bankruptcy Code, (m) any
agreement or stipulation with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person, (n) the avoidance of any Lien in favor
of Secured Party for any reason, (o) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against any Person, including any discharge of, or bar or stay
against collecting, all or any of the Obligations (or any interest thereon) in
or as a result of any such proceeding, or (p) to the extent permitted, the
benefits of any form of one- action rule. Until no part of any commitment to
lend remains outstanding and all of the Obligations have been paid and performed
in full, Grantors shall have no right of subrogation, contribution,
reimbursement or indemnity, and each Grantor expressly waives any right to
enforce any remedy that Secured Party now has or hereafter may have against any
other Person and waives the benefit of, or any right to participate in, any
other security now or hereafter held by Secured Party. Guarantor specifically
waives any rights or defenses Guarantor may have by reason of an election of
remedies by Lender, or protection afforded to Borrower with respect to
Borrower's obligations pursuant to the antideficiency or other laws limiting,
qualifying or discharging Borrower's indebtedness, including, without
limitation, California Code of Civil Procedure Sections 580a, 580b, 580d or 726.
Each Grantor expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Obligations, and all notices of acceptance of this Agreement or of the
existence, creation or incurring of new or additional Obligations.
2. Condition of Borrower and Its Subsidiaries. Each Grantor represents
and warrants to Secured Party that such Grantor has established adequate means
of obtaining from Borrower and its Subsidiaries, on a continuing basis,
financial and other information pertaining to the businesses, operations and
condition (financial and otherwise) of Borrower and its Subsidiaries and their
properties, and such Grantor now is and hereafter will be completely familiar
with the businesses, operations and condition (financial and otherwise) of
Borrower and its Subsidiaries and their properties. Each Grantor hereby
expressly waives and relinquishes any
Exhibit B-3
20
duty on the part of Secured Party to disclose to such Grantor any matter, fact
or thing related to the businesses, operations or condition (financial or
otherwise) of Borrower or its Subsidiaries or their properties, whether now
known or hereafter known by Secured Party during the life of this Agreement.
With respect to any of the Obligations, Secured Party need not inquire into the
powers of Borrower or any Subsidiaries thereof or the officers or employees
acting or purporting to act on their behalf, and all Obligations made or created
in good faith reliance upon the pro fessed exercise of such powers shall be
secured hereby.
3. Liens on Real Property. In the event that all or any part of the
Obligations at any time are secured by any one or more deeds of trust or
mortgages creating or granting Liens on any interests in real property, each
Grantor authorizes Secured Party, upon the occurrence of and during the
continuance of any Event of Default, at its sole option, without notice or
demand and without affecting any Obligations, the enforceability of this
Agreement, or the validity or enforceability of any Liens of any Secured Party
on any collateral, to foreclose any or all of such deeds of trust or mortgages
by judicial or nonjudicial sale. Each Grantor expressly waives any defenses to
the enforcement of this Agreement or any Liens created or granted hereby or to
the recovery by Secured Party against Borrower or any other Person liable
therefor of any deficiency after a judicial or nonjudicial foreclosure or sale,
even though such a foreclosure or sale may impair the subrogation rights of such
Grantor and may preclude such Grantor from obtaining reimbursement or
contribution from any other Person. Each Grantor expressly waives any defenses
or benefits that may be derived from California Code of Civil Procedure Sections
580a, 580b, 580d or 726, or comparable provisions of the Laws of any other
jurisdiction, including, without limitation, and all other suretyship defenses
it otherwise might or would have under California Law or other applicable Law.
4. Waiver of Rights of Subrogation. Notwithstanding anything to the
contrary elsewhere contained herein or in any other Loan Document to which any
Grantor is a Party, each Grantor hereby waives with respect to Borrower and its
successors and assigns (including any surety) and any other Party any and all
rights at Law or in equity, to subrogation, to reimbursement, to exoneration, to
contribution, to setoff or to any other rights that could accrue to a surety
against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, or to a holder or transferee
against a maker and which such Grantor may have or hereafter acquire against
Borrower or any other Party in connection with or as a result of such Grantor's
execution, delivery and/or performance of this Agreement or any other Loan
Document to which such Grantor is a party. Each Grantor agrees that it shall not
have or assert any such rights against Borrower or its successors and assigns or
any other Person (including any surety), either directly or as an attempted
setoff to any action commenced against such Grantor by Borrower (as borrower or
in any other capacity) or any other Person. Each Grantor hereby acknowledges and
agrees that this waiver is intended to benefit Secured Party and shall not limit
or otherwise affect such Grantor's liability hereunder, under any other Loan
Document to which such Grantor is a party, or the enforceability hereof or
thereof.
Exhibit B-4
21
5. Waiver of Discharge. Without limiting the generality of the
foregoing, each Grantor hereby waives discharge by waiving all defenses based on
suretyship or impairment of collateral.
6. Understandings with Respect to Waivers and Consents. Each
Grantor warrants and agrees that each of the waivers and consents set forth
herein is made with full knowledge of its significance and consequences, with
the understanding that events giving rise to any defense waived may diminish,
destroy or otherwise adversely affect rights which such Grantor otherwise may
have against Borrower, Secured Party or others, or against collateral, and that,
under the circumstances, the waivers and consents herein given are reasonable
and not contrary to public policy or Law. If any of the waivers or consents
herein are determined to be contrary to any applicable Law or public policy,
such waivers and consents shall be effective to the maximum extent permitted by
Law.
Exhibit B-5
22
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is executed as of July 17, 1997,
by Central Premium Finance, a Delaware corporation ("Joining Party"), and
delivered to Xxxxx Fargo Bank, National Association, as Agent, pursuant to the
Pledge Agreement dated as of June 13, 1997 made by Banner Holdings, Inc., a
Delaware corporation, Banner's Central Electric, Inc., a Calfornia corporation,
Central Financial Acceptance Corporation, a Delaware corporation, and the
Persons listed on the signature pages thereto (collectively, the "Grantors") in
favor of the Agent and the Lenders (the "Pledge Agreement"). Terms used but not
defined in this Joinder shall have the meanings defined for those terms in the
Pledge Agreement.
RECITALS
(a) The Pledge Agreement was made by the Grantors in favor of the
Agent for the benefit of the Lenders that are parties to that certain Revolving
Loan Agreement dated as of June 13, 1997, by and among Central Financial
Acceptance Corporation, a Delaware corporation ("Borrower"), the Lenders that
are parties thereto, and Xxxxx Fargo Bank, National Association, as the Agent
for the Lenders.
(b) Joining Party is a Significant Subsidiary of Borrower, and as
such is required pursuant to the Revolving Loan Agreement and the Pledge
Agreement to become a Grantor under the terms and conditions of the Pledge
Agreement.
(c) Joining Party expects to realize direct and indirect benefits as
a result of the availability to Borrower of the credit facilities under the
Revolving Loan Agreement.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(i) By this Joinder, Joining Party becomes a "Grantor" under and
pursuant to Section 14 of the Pledge Agreement. Joining Party agrees that, upon
its execution hereof, it will become a Grantor under the Pledge Agreement with
respect to all Obligations of Borrower heretofore or hereafter incurred under
the Loan Documents, and will be bound by all terms, conditions, and duties
applicable to a Grantor under the Pledge Agreement .
Exhibit B-6
23
(ii) The effective date of this Joinder is July 17, 1997.
"Joining Party"
Central Premium Finance Company
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------
Title: Chief Executive Officer
---------------------------
ACKNOWLEDGED:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxx Xxxxxx
-------------------------------
Title: Vice President
----------------------------
Exhibit B-7
