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EXHIBIT 10.3
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of February 7, 2000, by and between
XXXXXXXX BRANDS INTERNATIONAL, INC., a New Jersey corporation (referred to
herein as the "PLEDGOR"), and BANKBOSTON, N.A., as Collateral Agent for the
benefit of the Secured Creditors (as defined in the RECITALS hereto) (referred
to herein as the "PLEDGEE").
RECITALS
A. The Pledgor has entered into that certain Credit Agreement, dated as
of December 31, 1996, as amended through the date hereof (as further amended,
modified, extended, renewed, replaced, restated, supplemented, restructured
and/or refinanced from time to time, the "CREDIT AGREEMENT"), by and among the
Pledgor, as borrower, the financial institutions which are now, or in accordance
with SECTION 12.2 thereof hereafter become, parties thereto (collectively, the
"LENDERS"), BankBoston, N.A., as Administrative Agent and Collateral Agent for
the benefit of the Co-agents and Lenders, and BankBoston, N.A., ING Bank N.V.,
and PNC Bank, National Association, as Co-agents for the Lenders (the
"CO-AGENTS", and collectively with the Lenders, the Administrative Agent and the
Pledgee, the "SECURED CREDITORS").
B. It is a condition precedent of the entry by certain of the Secured
Creditors into Amendment No. 4 to Credit Agreement, dated as of the date hereof,
and of each Credit Extension made or to be made on or after the date hereof
under the Credit Agreement and the other Loan Documents that the Pledgor shall
have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the benefits accruing to
the Pledgor, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the
Pledgor for the benefit of the Secured Creditors in order to secure the full and
prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all of the Obligations. Notwithstanding anything in the Collateral
Documents to the contrary, the aggregate amount of all of the Obligations from
time to time secured by the Collateral Documents shall not at any time exceed
the Maximum Permitted Amount.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
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herein as therein defined. Reference to singular terms shall include the
plural and VICE VERSA. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The term
"INCLUDING" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's permitted successors and assigns. References to any
Instrument in this Agreement refer to such Instrument as originally executed or,
if subsequently amended or supplemented from time to time, as so amended or
supplemented and in effect at the relevant time of reference thereto.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"ADVERSE CLAIM" shall have the meaning given such term in
Section 8-102(a)(1) of the UCC.
"AGREEMENT" shall mean this Pledge Agreement, as the same may
from time to time be amended, modified, extended, renewed, replaced, restated or
supplemented.
"CERTIFICATED SECURITY" shall have the meaning given such term
in Section 8-102(a)(4) of the UCC.
"XXXXXXXX SOUTH PACIFIC" shall mean Xxxxxxxx Brands South
Pacific Ltd., an Australian company.
"XXXXXXXX SOUTH PACIFIC EQUITY" shall mean the resulting
Equity Interests if and to the extent that Indebtedness under or in respect of
the Xxxxxxxx South Pacific Loan Agreement or the Xxxxxxxx South Pacific Note is
ever converted to or exchanged for Equity Interests in Xxxxxxxx South Pacific.
"XXXXXXXX SOUTH PACIFIC LOAN AGREEMENT" shall mean that
certain Loan Agreement, by and between Xxxxxxxx South Pacific and the Pledgor,
dated as of June 24, 1998, as the same may be amended, restated, extended or
otherwise modified from time to time.
"XXXXXXXX SOUTH PACIFIC NOTE" shall mean any note or notes
that may be issued by Xxxxxxxx South Pacific from time to time in connection
with or pursuant to the Xxxxxxxx South Pacific Loan Agreement to evidence all or
any part of the Indebtedness of Xxxxxxxx South Pacific thereunder, as the same
may be amended, replaced, restated, extended or otherwise modified from time to
time.
"CLEARING CORPORATION" shall have the meaning given such term
in Section 8-102(a)(5) of the UCC.
"COLLATERAL" shall have the meaning set forth in SECTION 3.1
hereof.
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"COLLATERAL ACCOUNTS" shall mean, in relation to the Pledgor,
any and all accounts established and maintained by the Pledgee in the name of
the Pledgor and to which any Collateral may from time to time be credited.
"CONSENT TO ASSIGNMENT" shall have the meaning set forth in
SECTION 15(f) hereof.
"CREDIT AGREEMENT" shall have the meaning set forth in the
RECITALS hereto.
"EQUITY INTERESTS" shall mean (a) in the case of any
corporation, any Capital Stock of any class or series, (b) in the case of any
association or business entity, any shares, interests, participations, rights or
other equivalents (howsoever designated) of Capital Stock, and (c) in the case
of any partnership or limited liability company, partnership or membership
interests (whether general or limited), and all warrants, options or other
rights to purchase, subscribe for or otherwise acquire such interests (but
excluding any Notes that are convertible into, or exchangeable for, Capital
Stock or other Equity Interests).
"FINANCIAL ASSET" shall have the meaning given such term in
Section 8-102(a)(9) of the UCC).
"FRIDAY" shall mean Friday Holdings, L.L.C., a Delaware
limited liability company.
"FRIDAY NOTE" shall mean that certain Promissory Note, dated
as of December 30, 1998, payable by Friday to the order of Xxxxxxxx Brands,
Inc., as the same may be amended, replaced, restated, extended or otherwise
modified from time to time. The Friday Note and all of the rights, title and
interests of Xxxxxxxx Brands, Inc. thereunder have been assigned and transferred
to the Pledgor.
"INDEMNITEES" shall have the meaning set forth in SECTION 11
hereof.
"INSTRUMENT" shall have the meaning given such term in Section
9-105(l)(1) of the UCC.
"INVESTMENT PROPERTY" shall have the meaning given in Section
9-115(l)(f) of the UCC.
"LENDERS" shall have the meaning set forth in the RECITALS
hereto.
"LIMITED LIABILITY COMPANY ASSETS" shall mean all Property,
whether tangible or intangible, and whether real, personal or mixed (including,
without limitation, all limited liability company capital and interest in any
other limited liability company), at any time owned or represented by any
Limited Liability Company Interests.
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"LIMITED LIABILITY COMPANY INTERESTS" shall mean all of the
limited liability company membership interests at any time or from time to time
owned or acquired by the Pledgor in any limited liability company.
"XXXXXXXXX" shall mean Xxxxxxxxx Produce, L.L.C., a Nevada
limited liability company.
"NOTES" shall mean, in relation to the Pledgor, all promissory
notes or other similar Instruments now owned or from time to time hereafter
acquired by the Pledgor.
"OBLIGATIONS" shall have the meaning given such term in the
Credit Agreement.
"PARTNERSHIP ASSETS" shall mean all Property, whether tangible
or intangible, and whether real, personal or mixed (including, without
limitation, all partnership capital and interest in any other partnership), at
any time owned or represented by any Partnership Interests.
"PARTNERSHIP INTERESTS" shall mean all of the general
partnership interests and all of the limited partnership interests at any time
or from time to time owned or acquired by the Pledgor in any general partnership
or limited partnership.
"PLEDGEE" shall have the meaning set forth in the PREAMBLE
hereto.
"PLEDGOR" shall have the meanings set forth in the PREAMBLE
hereto.
"PROCEEDS" shall have the meaning given such term in Section
9-306(1) of the UCC.
"SECURED CREDITORS" shall have the meaning set forth in the
RECITALS hereto.
"SECURITIES ACCOUNT" shall have the meaning given such term in
Section 8-501(a) of the UCC.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, as in effect from time to time.
"SECURITIES TRANSFER" shall mean American Securities Transfer
Company Limited Partnership, an Ohio limited partnership.
"SECURITY" shall have the meaning given such term in Section
8-102(a)(15) of the UCC, and shall in any event include all Stock and Notes (to
the extent same constitute "Securities" under Section 8-102(a)(15) of the UCC).
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"SECURITY ENTITLEMENT" shall have the meaning given such term
in Section 8-102(a)(17) of the UCC.
"STOCK" shall mean with respect to any corporation, all of the
issued and outstanding shares of Capital Stock and other Equity Interests of
such corporation at any time owned or acquired by the Pledgor.
"TERMINATION DATE" shall have the meaning set forth in SECTION
19(a) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in
the relevant jurisdiction from time to time; PROVIDED, HOWEVER, that all
references herein to specific sections or subsections of the UCC are references
to such sections or subsections, as the case may be, of the Uniform Commercial
Code as in effect in the relevant jurisdiction on the date hereof.
"UNCERTIFICATED SECURITY" shall have the meaning given such
term in Section 8-102(a)(18) of the UCC.
3. PLEDGE OF SECURITY INTEREST, ETC.
3.1. PLEDGE. To secure the punctual payment or performance of
all and each and every part of the Obligations now or hereafter owed or to be
paid or performed by the Pledgor, the Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing security interest and Lien (subject to Liens from time to
time permitted to exist with respect to the Collateral pursuant to the Loan
Documents from time to time in effect) in favor of the Pledgee for the benefit
of the Secured Creditors in all of the rights, title and interests of the
Pledgor in and to each of the following, whether now existing or hereafter from
time to time created, arising or acquired (collectively, the "COLLATERAL"):
(a) each of the Collateral Accounts of the Pledgor, including
any and all of the Property of whatsoever type or kind from time to
time deposited by the Pledgor in each such Collateral Account, whether
such Property is now owned or existing or is hereafter created or
acquired, including, without limitation, all Financial Assets,
Investment Property, moneys, checks, drafts, Instruments, Securities or
interests therein of any type or nature deposited or required by the
Credit Agreement or by any of the other Loan Documents to be deposited
in such Collateral Account, and all Investments and all certificates
and other Instruments (including depository receipts, if any) from time
to time representing or evidencing the same, and all dividends,
interest, distributions, cash and other Property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing;
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(b) all Securities owned or acquired by the Pledgor from time
to time (but excluding any Stock of Subsidiaries, except for the
Xxxxxxxx South Pacific Equity, and also excluding any Notes payable by
Subsidiaries of the Pledgor, other than the Xxxxxxxx South Pacific Note
and the Friday Note);
(c) all Limited Liability Company Interests owned or acquired
by the Pledgor from time to time (including those in Friday, but
excluding those in any other limited liability company that is a
Subsidiary of the Pledgor, and also excluding those in any limited
liability company that is not a Subsidiary of the Pledgor to the extent
(and only to the extent) that such Limited Liability Company Interests
may not be pledged hereunder without violating the terms of the
operating agreement or other Governing Documents of such limited
liability company) and all of its right, title and interest in each
limited liability company to which each such interest relates, whether
now existing or hereafter created, arising or acquired, including,
without limitation:
(i) all of its capital therein and all of its
interest in all profits, losses, Limited Liability Company
Assets and other distributions to which the Pledgor shall at
any time be entitled in respect of such Limited Liability
Company Interests;
(ii) all other payments due or to become due to the
Pledgor in respect of such Limited Liability Company
Interests, whether under any limited liability company
agreement or otherwise, whether as contractual obligations,
damages or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interests, Liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law, or otherwise in respect of
such Limited Liability Company Interests;
(iv) all present and future claims, if any, of the
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(v) all of the Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of the Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any Instruments and to take
any and all other action on behalf of and in the name of the
Pledgor in respect of such Limited Liability Company Interests
and any such limited liability company, to make
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determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Assets, to enforce or execute
any checks or other Instruments or orders, to file any claims
and to take any action in connection with any of the
foregoing; and
(vi) all other Property from time to time hereafter
delivered in substitution for or in addition to any of the
foregoing, all certificates and Instruments representing or
evidencing such other Property, and all cash, Securities,
interest, dividends, rights and other Property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(d) all Partnership Interests owned or acquired by the Pledgor
from time to time (excluding those in any partnership that is a
Subsidiary of the Pledgor, and also excluding those in any partnership
that is not a Subsidiary of the Pledgor to the extent (and only to the
extent) that such Partnership Interests may not be pledged hereunder
without violating the terms of the partnership agreement or other
Governing Documents of such partnership) and all of its right, title
and interest in each partnership to which each such interest relates,
whether now existing or hereafter created, arising or acquired,
including, without limitation:
(i) all of its capital therein and all of its
interest in all profits, losses, Partnership Assets and other
distributions to which the Pledgor shall at any time be
entitled in respect of such Partnership Interests;
(ii) all other payments due or to become due to the
Pledgor in respect of such Partnership Interests, whether
under any partnership agreement or otherwise, whether as
contractual obligations, damages or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interests, Liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law, or otherwise in respect of such Partnership
Interests;
(iv) all present and future claims, if any, of the
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(v) all of the Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and
privilege of the
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Pledgor relating to such Partnership Interests, including any
power to terminate, cancel or modify any partnership agreement
or operating agreement, to execute any Instruments and to take
any and all other action on behalf of and in the name of the
Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Assets, to enforce or execute
any checks, or other Instruments or orders, to file any claims
and to take any action in connection with any of the
foregoing; and
(vi) all other Property from time to time hereafter
delivered in substitution for or in addition to any of the
foregoing, all certificates and Instruments representing or
evidencing such other Property, and all cash, Securities,
interest, dividends, rights and other Property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(e) all Security Entitlements owned or acquired by the Pledgor
from time to time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned or
acquired by the Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing;
PROVIDED, HOWEVER, that notwithstanding anything in this Agreement or in any of
the other Collateral Documents to the contrary, the Pledgor shall NOT be
required to pledge, and the term "COLLATERAL" shall be deemed NOT to include:
(i) any Equity Interests now owned or hereafter
acquired by the Pledgor in any Persons which are or (in
connection with such acquisition) become Subsidiaries of the
Pledgor, other than the Pledgor's Limited Liability Company
Interests in Friday and the Xxxxxxxx South Pacific Equity that
it shall own or from time to time acquire;
(ii) the Equity Interests of the Pledgor in Xxxxxxxxx
and Securities Transfer;
(iii) the Pledgor's interest in any Note issued by
Xxxxxxxxx or Securities Transfer or by any Subsidiary of the
Pledgor to the Pledgor, other than the Xxxxxxxx South Pacific
Note and the Friday Note, each of which is pledged hereunder;
or
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(iv) the Pledgor's interest in any Securities that
are held in accounts which are opened and maintained by the
Pledgor as a fiduciary for its employees or otherwise in
connection with the Pledgor's employee benefits plans, and
specifically, any Securities included in the "Capital
Appreciation Plan" of the Pledgor.
The Property identified and described by the preceding PROVISO as not included
in the Collateral shall be referred to herein as the "EXCLUDED PROPERTY". The
term "COLLATERAL" shall in any event include all Equity Interests owned by the
Pledgor in any Persons (other than Xxxxxxxxx or Securities Transfer) that have
ceased to be Subsidiaries of the Pledgor; such Equity Interests in any such
Person to become automatically subject to pledge hereunder and a part of the
Collateral immediately when such Person ceases to be a Subsidiary of the
Pledgor.
3.2. PROCEDURES. (a) Subject always to SECTION 3.6 hereof, to
the extent that the Pledgor at any time or from time to time owns,
acquires or obtains any right, title or interest in any Collateral,
such Collateral shall automatically (and without the taking of any
action by the Pledgor) be pledged pursuant to SECTION 3.1 of this
Agreement and, in addition thereto, the Pledgor shall (to the extent
provided below) take the following actions as set forth below (as
promptly as practicable and, in any event, within 30 days after it
obtains such Collateral) for the benefit of the Pledgee and the other
Secured Creditors:
(i) with respect to any Certificated Security (other
than a Certificated Security credited on the books of a
Clearing Corporation), the Pledgor shall physically deliver
such Certificated Security to the Pledgee, endorsed in blank;
(ii) with respect to any Uncertificated Security
(other than an Uncertificated Security credited on the books
of a Clearing Corporation), Limited Liability Company
Interests or Partnership Interests, the Pledgor shall cause
the issuer of such Uncertificated Security, Limited Liability
Company Interests or Partnership Interests to duly authorize
and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the other Secured Creditors
substantially in the form of ANNEX C hereto (appropriately
completed to the satisfaction of the Pledgee and with such
modifications, if any, as shall be satisfactory to the
Pledgee) pursuant to which such issuer shall agree to comply
with any and all instructions originated by the Pledgee
without further consent by the registered owner and not to
comply with instructions regarding such Uncertificated
Security, Partnership Interests or Limited Liability Company
Interests originated by any other Person, other than a court
of competent jurisdiction; it being understood and agreed that
the
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Pledgee will not so originate any instructions to any such
issuer unless an Event of Default has occurred and is
continuing;
(iii) with respect to any Certificated Security,
Uncertificated Security, Partnership Interests or Limited
Liability Company Interests credited on the books of a
Clearing Corporation (including a Federal Reserve Bank,
Participants Trust Company or The Depository Trust Company),
the Pledgor shall promptly notify the Pledgee thereof and
shall promptly take all actions (A) required (1) to comply
with the applicable rules of such Clearing Corporation, and
(2) to perfect the security interest of the Pledgee under
Applicable Law (including, in any event, under Sections 9-115
(4)(a) and (b), 9-115 (1)(e) and 8-106(d) of the UCC), and (B)
as the Pledgee deems necessary or desirable to effect the
foregoing;
(iv) with respect to any Partnership Interests or
Limited Liability Company Interests (other than any
Partnership Interests or Limited Liability Interests credited
on the books of a Clearing Corporation), (A) if such
Partnership Interests or Limited Liability Company Interests
are represented by a certificate, the procedure set forth in
SECTION 3.2(a)(i), and (B) if such Partnership Interests or
Limited Liability Company Interests are not represented by a
certificate, the procedure set forth in SECTION 3.2(a)(ii);
(v) with respect to any Note, physical delivery of
such Note to the Pledgee, endorsed in blank; and
(vi) upon written request of the Pledgee while any
Event of Default shall be continuing, with respect to cash,
(A) establishment by the Pledgee of a cash account in the name
of the Pledgor over which the Pledgee shall have exclusive and
absolute control and dominion (and no withdrawals or transfers
may be made therefrom by any Person, without the prior written
consent of the Pledgee), and (B) deposit of such cash in such
cash account.
(b) In addition to the actions required to be taken pursuant
to PARAGRAPH (a) of this SECTION 3.2, the Pledgor shall take the
following additional actions with respect to the Securities and
Collateral (as defined below):
(i) with respect to all Collateral of the Pledgor
with respect to which the Pledgee may obtain "control" thereof
within the meaning of Section 8-106 of the UCC (or under any
provision of the UCC as same may be amended or supplemented
from time to time, or under the Applicable Laws of any
relevant jurisdiction), the Pledgor shall
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take all actions as may be requested from time to time by the
Pledgee so that "control" of such Collateral is obtained and
at all times held by the Pledgee; and
(ii) the Pledgor shall from time to time cause
appropriate financing statements (on Form UCC-1 or other
appropriate form) under the Uniform Commercial Code as in
effect in the various relevant jurisdictions, on forms
covering all Collateral hereunder (with the form of such
financing statements to be satisfactory to the Pledgee), to be
filed in the relevant filing offices so that at all times the
Pledgee has a security interest and Lien in all Investment
Property and other Collateral which is perfected by the filing
of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the
Applicable Laws of the relevant jurisdictions, including,
without limitation, Section 9-115(4)(b) of the UCC).
3.3. SUBSEQUENTLY ACQUIRED COLLATERAL. Subject always to the
provisions of SECTION 3.6 hereof, if the Pledgor shall acquire (by purchase,
merger, stock dividend, capital contribution or otherwise) any additional
Collateral at any time or from time to time after the date hereof, or when the
Equity Interests in any Person that ceases to be a Subsidiary of the Pledgor
becomes part of the Collateral, such Collateral shall automatically (and without
any further action being required to be taken) be subject to the pledge and
security interests created pursuant to SECTION 3.1, and, furthermore, the
Pledgor will within 30 days thereafter take (or cause to be taken) all action
with respect to such Collateral in accordance with the procedures set forth in
SECTION 3.2, and will promptly thereafter deliver to the Pledgee (a) a
certificate executed by a principal executive officer of the Pledgor describing
such Collateral and certifying that the same has been duly pledged in favor of
the Pledgee (for the benefit of the Secured Creditors) hereunder, and (b) such
supplements to ANNEX A hereto as are necessary to cause such ANNEX A to be
complete and accurate at such time. Notwithstanding anything contained herein to
the contrary, this SECTION 3.3 shall not apply to, and no duties shall arise
hereunder with respect to any Excluded Property whensoever owned or acquired.
3.4. TRANSFER TAXES. Each pledge of Collateral under SECTION
3.1 or SECTION 3.3 shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5. CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE
COLLATERAL. The Pledgor represents and warrants that on the date hereof (a)
ANNEX A contains a correct and complete listing of all Equity Interests in any
Person owned by the Pledgor which constitute Collateral under Section 3.1
hereof, except for Equity Interests in any Person which, in the reasonable
judgement of the Pledgor, have an aggregate value of $25,000 or less on the date
hereof; (b) ANNEX A
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contains a correct and complete listing of all Notes payable to the Pledgor by
any Person which constitute Collateral under SECTION 3.1 hereof, except for
Notes issued by any Person which have an aggregate face value of $25,000 or less
on the date hereof; and (c) the aggregate value of the Equity Interests (as
determined by the Pledgor in its reasonable judgement) and Notes (as determined
by face value) which constitute Collateral under SECTION 3.1 hereof, but are not
listed on ANNEX A by virtue of the exclusions set forth in CLAUSES (a) and (b)
above, does not exceed $500,000 on the date hereof.
3.6. PERFECTION IN COLLATERAL PRIOR TO EVENT OF DEFAULT. (a)
It is the intention of the parties hereto that at all times the Pledgee
shall have the benefit of a perfected first-priority security interest
in each of: (i) the Limited Liability Company Interests in Friday; (ii)
the Friday Note; (iii) all of the rights, title and interests of the
Pledgor on, under or in respect of the Xxxxxxxx South Pacific Loan
Agreement; (iv) the Xxxxxxxx South Pacific Note; (v) the Xxxxxxxx South
Pacific Equity; and (vi) all payments and distributions (whether in
cash or in any other form of Property) from time to time made on, or in
respect of, the Limited Liability Company Interests in Friday, the
Friday Note, the Xxxxxxxx South Pacific Equity, the Xxxxxxxx South
Pacific Loan Agreement and the Xxxxxxxx South Pacific Note.
Accordingly, with respect to all Property constituting Collateral
described in CLAUSES (i) through (iv) hereof, the Pledgor shall comply
at all times from and after the date hereof and in all respects with
the provisions contained in SECTIONS 3.2, 3.3 and 15(E) through (H)
hereof.
(b) It is the intention of the parties hereto that at all
times, so long as any Event of Default shall be continuing, the Pledgee
shall have, if it so requests, the benefit of a first priority security
interest in all other Property from time to time constituting
Collateral. Accordingly, so long as any Event of Default shall be
continuing, the Pledgor may from time to time deliver to Pledgee
written instructions (i) identifying the specific additional Collateral
with respect to which the Pledgor shall be required to comply with
SECTIONS 3.2 and 3.3, and (ii) specifying the action which the Pledgor
shall be required to take pursuant to this SECTION 3 in relation to
such additional Collateral.
(c) With respect to all Collateral hereunder, other than that
which is specifically identified in CLAUSE (a) hereof, unless and until
such time as an Event of Default shall be continuing and the Pledgor
shall have received written instructions from the Pledgee as set forth
in CLAUSE (B) above, it is understood and agreed that the Pledgor shall
not be required to comply with any of the provisions contained in
SECTIONS 3.2 or 3.3 hereof, except to the extent that the Pledgee may
from time to time require the filing of financing statements covering
ALL COLLATERAL hereunder pursuant to SECTION 3.2(b)(ii).
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4. APPOINTMENT OF SUB-AGENTS: ENDORSEMENTS. ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the Pledgor, endorsed or assigned in
blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless there shall
be continuing an Event of Default, the Pledgor shall be entitled to exercise any
and all voting rights attaching to any and all Collateral owned by it, and to
give consents, waivers or ratifications in respect thereof; PROVIDED, HOWEVER,
that no vote shall be cast or any consent, waiver or ratification given or any
action taken which would violate, result in breach of any covenant contained in,
or be inconsistent with, any of the terms of this Agreement, the Credit
Agreement or any of the other Loan Documents. All such rights of a Pledgor to
vote and to give consents, waivers and ratifications with respect to all or any
part of the Collateral owned by it shall cease if an Event of Default shall be
continuing if, and to the extent that, the Pledgee shall notify the Pledgor in
writing of the Pledgee's decision to exercise such rights with respect to all or
(as the case may be) such part of such Collateral.
6. DIVIDENDS AND OTHER DISTRIBUTIONS.
(a) Unless an Event of Default shall be continuing and Pledgee
shall have otherwise requested in writing, and except as otherwise
provided by SECTION 3.6(a), PARAGRAPH (c) of this SECTION 6 or by
PARAGRAPHS (e) through (h) of SECTION 15, (i) all ordinary cash
dividends and other similar cash distributions payable in respect of
any Equity Interests constituting Collateral shall be paid to (and may
be retained by) the Pledgor; and (ii) the Proceeds of any Collateral,
other than that Collateral which is described in SECTION 3.6(a), to the
extent that such Proceeds do not exceed the sum of $500,000 per fiscal
year, shall be paid to (and may be retained by) the Pledgor.
(b) As contemplated and provided by SECTION 3.3 hereof, but
subject always to SECTIONS 3.6 and 15(e) through (h) hereof, the
Pledgee shall at all times be entitled to receive directly, and to
retain as part of the Collateral:
(i) all other or additional Stock, Notes, Limited
Liability Company Interests, Partnership Interests,
Instruments or other Securities or Property (including, but
not limited to, cash, except as otherwise provided by
PARAGRAPH (a) of this SECTION 6) paid or distributed by way of
dividend or otherwise in respect of the Collateral;
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(ii) all other or additional Stock, Notes, Limited
Liability Company Interests, Partnership Interests,
Instruments or other Securities or Property (including, but
not limited to, cash, except as otherwise provided by
PARAGRAPH (a) of this SECTION 6) paid or distributed in
respect of the Collateral by way of stock-split, spin-off,
split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional Stock, Notes, Limited
Liability Company Interests, Partnership Interests,
Instruments or other Securities or Property (including, but
not limited to, cash, except as otherwise provided by
PARAGRAPH (a) of this SECTION 6) which may be paid in respect
of the Collateral by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or
similar corporate reorganization.
(c) During the continuation of any Event of Default, if and as
so requested by the Pledgee in writing, all ordinary cash dividends and
other similar cash distributions paid or payable in respect of all or
any part of any Equity Interests constituting Collateral shall be paid
to the Pledgee for application by the Pledgee toward payment of the
Obligations pursuant to the Loan Documents. All dividends,
distributions or other payments which are received by the Pledgor
contrary to the provisions of any of SECTION 3.6, this SECTION 6,
SECTION 7 or SECTION 15(e) through (h) shall be received in trust for
the benefit of the Pledgee and the other Secured Creditors, shall be
segregated from other Property or funds of the Pledgor, and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsements).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If any Event of
Default shall be continuing, the Pledgee shall be entitled to exercise all of
the rights, powers and remedies (whether vested in it by this Agreement or by
any other Loan Document or by law) for the protection and enforcement of its
rights in respect of the Collateral, including, without limitation, its rights
set forth in SECTION 3 hereof and all of the rights and remedies of a secured
party upon default under the UCC, and the Pledgee shall be entitled, without
limitation, to exercise any or all of the following rights, which the Pledgor
hereby irrevocably agrees to be commercially reasonable:
(a) to receive all amounts payable or distributable in respect
of the Collateral or otherwise payable under SECTION 6 to the Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or into the name of its nominee or nominees;
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(c) to accelerate any Note pledged hereunder, which may be
accelerated in accordance with its terms, and take any other lawful
action to collect upon any Note pledged hereunder (including, without
limitation, to make any demand for payment thereon);
(d) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though the Pledgee were the outright owner
thereof (subject to any applicable operating agreement, partnership
agreement or other Governing Document in the case of any Collateral
constituting a Partnership Interest or Limited Liability Company
Interest) (the Pledgor hereby irrevocably constituting and appointing
the Pledgee the proxy and attorney-in-fact of the Pledgor, with full
power of substitution to do so, pursuant to SECTION 12(b));
(e) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private Sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of Sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by the Pledgor),
for cash, on credit or for other Property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine; PROVIDED, HOWEVER, that at least 10 days' prior notice of
the time and place of any such Sale shall be given to the Pledgor. The
Pledgee shall not be obligated to make such Sale of Collateral
regardless of whether any such notice of Sale has theretofore been
given. Each purchaser at any such Sale shall hold the Property so sold
absolutely free from any claim or right on the part of the Pledgor, and
the Pledgor hereby irrevocably waives and releases to the fullest
extent permitted by law any right or equity of redemption with respect
to the Collateral, whether before or after Sale hereunder, all rights,
if any, to require marshalling of the Collateral or any other security
for the Obligations or otherwise, and all rights, if any, of stay
and/or appraisal which it now has or may at any time in the future have
under rule of law or statute now existing or hereafter enacted. At any
such Sale, unless prohibited by Applicable Law, the Pledgee on behalf
of all Secured Creditors (or certain of them) may bid for and purchase
(by bidding in Obligations or otherwise) all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any other Secured Creditor shall be liable for
failure to collect or realize upon any or all of the Collateral or for
any delay in so doing nor shall any of them be under any obligation to
take any action whatsoever with regard thereto; and
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(f) to set-off all or any part of the Collateral against all
or any part of the Obligations, and to withdraw any and all cash or
other Collateral from any and all Collateral Accounts and to apply such
cash and other Collateral to the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of
the Pledgee provided for in this Agreement or in any other Loan Document, or now
or hereafter existing at law or in equity or by statute, shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee or any other Secured
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Loan Document or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any other Secured Creditor of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. Unless otherwise required by the Loan Documents, no
notice to or demand on the Pledgor in any case shall entitle the Pledgor to any
other or further notice or demand in similar circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without demand or notice. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, acting on behalf of the Secured Creditors pursuant to ARTICLE XI
of the Credit Agreement, and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security granted or to be granted hereby, it being understood and agreed
that such rights and remedies may be exercised by the Pledgee or the holders of
at least a majority of the outstanding Obligations, as the case may be, for the
benefit of the Secured Creditors upon the terms of this Agreement and the other
Credit Documents.
9. APPLICATION OF PROCEEDS. Cash proceeds received or
otherwise held by the Pledgee in respect of any Sale of, collection from, or
other realization upon, all or any part of the Collateral under this Agreement
or the Security Agreement shall be applied by the Pledgee in the following
order:
(a) FIRST, subject always to the limitations contained in the
next paragraph of this SECTION 9, to the Pledgee for the benefit of the
Secured Creditors, on account of the Obligations of the Pledgor to the
Secured Creditors (whether or not such Obligations are then due and
payable, matured or unmatured, absolute or contingent, or otherwise);
and
(b) SECOND, to the extent that proceeds remain after the
application pursuant to the preceding CLAUSE (a), to the Pledgor or to
whomsoever else may be lawfully entitled to receive such surplus.
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NOTWITHSTANDING ANYTHING EXPRESS OR IMPLIED IN THE COLLATERAL DOCUMENTS
TO THE CONTRARY, THE MAXIMUM AGGREGATE AMOUNT OF ALL PROCEEDS OF COLLATERAL
(WHETHER RECEIVED OR REALIZED UPON PURSUANT TO THIS AGREEMENT OR THE SECURITY
AGREEMENT) WHICH MAY BE APPLIED BY THE PLEDGEE AND THE OTHER SECURED CREDITORS
TOWARDS PAYMENT OF THE OBLIGATIONS SHALL NOT EXCEED THE MAXIMUM PERMITTED
AMOUNT.
THE PLEDGOR SHALL REMAIN LIABLE FOR ANY DEFICIENCY.
10. PURCHASERS OF COLLATERAL. Upon any Sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of Sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such Sale of the purchase money paid as consideration pursuant to
such 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 all or any part of the purchase money paid over to the
Pledgee or such officer or be answerable in any way for the misapplication or
nonapplication thereof.
11. INDEMNITY. The Pledgor jointly and severally irrevocably
agrees (a) to indemnify and hold harmless the Pledgee, each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (individually, an "INDEMNITEE" and, collectively, the "INDEMNITEES") on
demand from and against any and all claims, demands, losses, judgments and
liabilities (including liabilities for penalties) of whatsoever kind or nature,
and (b) to reimburse each Indemnitee on demand for all reasonable costs and
expenses, including reasonable attorneys' fees, in each case arising out of or
resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Loan Document (but excluding
any claims, demands, losses, judgments and liabilities (including liabilities
for penalties) or expenses of whatsoever kind or nature to the extent incurred
or arising by reason of gross negligence or willful misconduct of such
Indemnitee). In no event shall any Indemnitee hereunder be liable, in the
absence of gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for moneys or
other Property actually received by it in accordance with the terms hereof. If
and to the extent that the obligations of the Pledgor under this SECTION 11 are
unenforceable for any reason, the Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law. The indemnity obligations of the Pledgor
contained in this SECTION 11 shall continue in full force and effect
notwithstanding the full payment of all of the Loans and other Credit Extensions
made under the Credit Agreement, the termination of all Letters of Credit, and
the payment of all of the other Obligations, and notwithstanding the discharge
thereof.
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12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) The Pledgor
agrees that it will join with the Pledgee in executing and, at the
Pledgor's own cost and expense, file and refile under the Uniform
Commercial Code such financing statements, continuation statements and
other documents in such offices as the Pledgee (acting on its own or on
the instructions of the Required Lenders) may reasonably deem necessary
or appropriate and wheresoever required or permitted by law in order to
perfect and preserve the Pledgee's security interest in the Collateral
hereunder and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of the
Collateral without the signature of the Pledgor where permitted by law,
and agrees to do such further acts and things and to execute and
deliver to the Pledgee such additional conveyances, assignments,
agreements and Instruments as the Pledgee may reasonably require or
deem advisable to carry into effect the purposes of this Agreement or
to further assure and confirm unto the Pledgee its rights, powers and
remedies hereunder or thereunder.
(b) The Pledgor hereby irrevocably appoints the Pledgee the
Pledgor's attorney-in-fact, with full authority in the place and stead
of the Pledgor and in the name of the Pledgor or otherwise, from time
to time during the continuance of an Event of Default, in the Pledgee's
discretion to take any action and to execute any Instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of
this Agreement, including any actions permitted under SECTION 7(d)
hereof.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee shall hold,
in accordance with this Agreement, all items of the Collateral at any time
received by the Pledgee under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
ARTICLE XI of the Credit Agreement.
14. TRANSFER BY THE PLEDGOR. The Pledgor will not sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber all or any part of the Collateral or any interest therein
(except, in each case, in accordance with or as otherwise permitted by the terms
of this Agreement and the other Loan Documents).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR.
(a) The Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of,
and has good and marketable title to, all of the Limited
Liability Company
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Interests in Friday, the Friday Note, and all other Collateral
consisting of one or more Securities and it has sufficient
interest in all Collateral in which a security interest is
purported to be created hereunder for such security interest
to attach (subject, in each case, to no pledge, Lien,
mortgage, hypothecation, security interest, charge, option,
Adverse Claim or other encumbrance whatsoever, EXCEPT the
Liens and security interests created by this Agreement or
permitted by the terms of the Credit Agreement and EXCEPT for
restrictions and limitations (if any) imposed by Applicable
Law, applicable Governing Documents or any applicable
shareholder agreements);
(ii) it has full power, authority and legal right to
pledge all the Collateral pledged or to be pledged by it
pursuant to this Agreement;
(iii) this Agreement has been duly authorized,
executed and delivered by the Pledgor and constitutes a legal,
valid and binding obligation of the Pledgor enforceable
against the Pledgor in accordance with its terms, except to
the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement
is sought in equity or at law) and principles of good faith
and fair dealing;
(iv) except to the extent already obtained or made,
no consent of any other party (including, without limitation,
any stockholder, member, partner or creditor of the Pledgor or
of any of its Subsidiaries), and no consent, license, permit,
approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any
Governmental Authority is required to be obtained by the
Pledgor in connection with (A) the execution, delivery or
performance of this Agreement, (B) the validity or
enforceability of this Agreement (except as otherwise set
forth in CLAUSE (iii) above), (C) the perfection or
enforceability of the Pledgee's security interest in the
Collateral, (D) except for compliance with or as may be
required by applicable securities laws, the exercise by the
Pledgee of any of its rights or remedies provided herein, or
(E) except for compliance with or as may required by any
applicable partnership agreement, limited liability company
agreement or other Governing Document relating to any
partnership or limited liability company that is not a
Subsidiary of the Pledgor, the exercise by the Pledgee of any
of its rights or remedies provided herein with respect to the
Partnership Interests or Limited Liability Company Interests
relating to such partnership or limited liability company;
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(v) the execution, delivery and performance of this
Agreement will not violate any provision of any Applicable Law
or of any order, judgment, writ, award or decree of any court,
arbitrator or other Governmental Authority, domestic or
foreign, applicable to the Pledgor, or of the Governing
Documents of the Pledgor or of any Securities issued by the
Pledgor or by any of its Subsidiaries, or of any mortgage,
deed of trust, indenture, lease, loan agreement, credit
agreement or other contract, agreement or Instrument or
undertaking to which the Pledgor or any of its Subsidiaries is
a party or which purports to be binding upon the Pledgor or
any of its Subsidiaries or upon any of their respective
Property and will not result in the creation or imposition of
(or the obligation to create or impose) any Lien on any of the
Property of the Pledgor or of any of its Subsidiaries, EXCEPT
as contemplated by this Agreement (other than the Liens
created by the Collateral Documents);
(vi) (A) the Limited Liability Company Interests in
Friday have been duly and validly issued, are fully paid and
nonassessable and are subject to no options to purchase or
other similar rights; PROVIDED, HOWEVER, that such Limited
Liability Company Interests in Friday may require further
payments and/or assessments in respect thereof in accordance
with Applicable Law; (B) if the Collateral shall at any time
consist of Xxxxxxxx South Pacific Equity, such Xxxxxxxx South
Pacific Equity shall be duly and validly issued, fully paid
and nonassessable and shall be subject to no options to
purchase or other similar rights; (C) Friday is the legal and
beneficial and record owner of, and has good and marketable
title to, all of the Limited Liability Company Interests in
Xxxxxxxx Processed Foods; and (D) the Limited Liability
Company Interests in Xxxxxxxx Processed Foods have been duly
and validly issued, are fully paid and nonassessable and are
subject to no options to purchase or other similar rights;
PROVIDED, HOWEVER, that such Limited Liability Company
Interest in Xxxxxxxx Processed Foods may require further
payments and/or assessments in respect thereof in accordance
with Applicable Law.
(vii) (A) the Xxxxxxxx South Pacific Loan Agreement
constitutes the legal, valid and binding obligation of
Xxxxxxxx South Pacific, enforceable in accordance with its
terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at
law) and principles of good faith and fair dealing; and (B)
the Friday Note constitutes the legal, valid and binding
obligation of Friday, enforceable in accordance with its
terms, except to the extent that the
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enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is
sought in equity or at law) and principles of good faith and
fair dealing;
(viii) the pledge, collateral assignment and delivery
to the Pledgee of the Collateral consisting of Certificated
Securities (together with Instruments of transfer therefor)
pursuant to this Agreement creates a valid and perfected
first-priority security interest in such Securities and the
Proceeds thereof, subject to no prior Liens or encumbrances or
to any agreement purporting to grant to any third party any
Lien or encumbrance on the Property of the Pledgor which would
include such Securities, and the Pledgee is entitled to all of
the rights, priorities and benefits afforded by the UCC or
other Applicable Law as enacted in any applicable jurisdiction
to perfected security interests in respect of such Collateral,
subject always to SECTION 3.6 hereof; and
(ix) subject always to SECTION 3.6, "control" (as
defined in Section 8-106 of the UCC) has been obtained by the
Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which
such "control" may be obtained pursuant to Section 8-106 of
the UCC; PROVIDED, HOWEVER, that, in the case of the Pledgee
obtaining "control" over Collateral consisting of a Security
Entitlement, the Pledgor shall have taken all steps in its
control so that the Pledgee obtains "control" over such
Security Entitlement.
(b) The Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities
and the Proceeds thereof against the claims and demands of all Persons
whomsoever; and the Pledgor covenants and agrees that it will have like
title to and right to pledge any other Property at any time hereafter
pledged to the Pledgee as Collateral hereunder and will likewise defend
the right thereto and security interest therein of the Pledgee and the
other Secured Creditors.
(c) The Pledgor shall not cause or otherwise agree to, and to
the extent it can control the same, shall not permit: (i) the amendment
or modification of the operating agreements, certificates of formation
or any other Governing Documents pertaining to, or the issuance of new
membership interests in, Friday or Xxxxxxxx Processed Foods, without
the prior written consent of the Pledgee; or (ii) the cancellation,
termination or recission of, or the forgiveness, release or waiver of
any of the Indebtedness or any other obligations under any of the
operating agreements or any
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Governing Documents of, or otherwise pertaining to, Friday or Xxxxxxxx
Processed Foods. The Pledgor shall not cease to own a 100% direct
membership interest in Friday, and shall not cause or permit Friday to
cease to own a 100% direct membership interest in Xxxxxxxx Processed
Foods.
(d) The Pledgor covenants and agrees that it shall make no
Investments in Equity Interests or Notes, which will become part of the
Collateral hereunder, if, after giving effect to such Investments, the
aggregate fair market value of all of the Equity Interests, Notes and
other Investments constituting Collateral at any given time hereunder
(but excluding for purposes of this calculation the fair market value
of the Property described in Section 3.6(a) hereof) shall exceed
$10,000,000. For purposes of the preceding sentence, "fair market
value" shall be determined on the basis of (i) the value of such
Investments on the date of this Agreement, if owned by Pledgor on the
date of this Agreement or (ii) the original cost of such Investments,
if acquired after the date of this Agreement (without giving effect to
any increase or decrease in value of such Investments after the date of
this Agreement or the date of acquisition, as the case may be).
(e) The Pledgor covenants and agrees that it shall not, and to
the extent it can control the same, it shall not cause or permit
Xxxxxxxx South Pacific to, do any of the following:
(i) take any action or omit to take any action that
will result in the cancellation, termination, compromise,
rescission, forgiveness, release or waiver of any of the
obligations of Xxxxxxxx South Pacific under the Xxxxxxxx South
Pacific Loan Agreement or the Xxxxxxxx South Pacific Note,
other than as a result and to the extent of any cash payments
made by Xxxxxxxx South Pacific to or for the account of the
Pledgor in respect of any of its obligations
under the Xxxxxxxx South Pacific Loan Agreement or the
Xxxxxxxx South Pacific Note, which payments shall be made
directly by Xxxxxxxx South Pacific to the Pledgee for the
benefit of the Secured Creditors, pursuant to SECTION 15(f)
hereof and SECTION 3.3.3(a) of the Credit Agreement; or
(ii) exercise any rights of setoff or counterclaim
with respect to any obligations owed by the Pledgor to
Xxxxxxxx South Pacific against any obligations owed by
Xxxxxxxx South Pacific to the Pledgor under the Xxxxxxxx South
Pacific Loan Agreement or the Xxxxxxxx South Pacific Note; or
(iii) amend any of the terms of payment or otherwise
modify any of the other provisions of the Xxxxxxxx South
Pacific Loan Agreement or the Xxxxxxxx South Pacific Note (or
the terms of any Xxxxxxxx South
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Pacific Equity issued upon conversion of or in exchange
therefor) in a manner which will reduce the value of, or
otherwise impair any of the material rights, remedies or other
benefits available to the Pledgor with respect to, any such
debt or equity, or otherwise adversely affect in any material
respect the validity or enforceability of the Xxxxxxxx South
Pacific Loan Agreement, the Xxxxxxxx South Pacific Note or the
Xxxxxxxx South Pacific Equity;
PROVIDED; HOWEVER that nothing in the foregoing CLAUSES (i) through
(iii) shall be construed to limit the rights of the Pledgor and
Xxxxxxxx South Pacific at any time to convert the debt outstanding
under the Xxxxxxxx South Pacific Loan Agreement (or the Xxxxxxxx South
Pacific Note) into Xxxxxxxx South Pacific Equity, to convert such debt
into convertible debt or to extend the maturity of such debt.
(f) The Pledgor shall cause Xxxxxxxx South Pacific to make and
remit directly to the Pledgee, for the benefit of the Secured
Creditors, all cash payments and other cash distributions payable by
Xxxxxxxx South Pacific for or on account of the Xxxxxxxx South Pacific
Loan Agreement, the Xxxxxxxx South Pacific Note or any Xxxxxxxx South
Pacific Equity. So long as no Event of Default is continuing, the
Pledgee shall apply any and all cash payments or distributions received
under this SECTION 15(f) in accordance with SECTION 3.3.3(a) of the
Credit Agreement, and any amounts so received by the Pledgee in excess
of the aggregate principal amount of Revolving Loans then outstanding
shall be remitted by the Pledgee to the Pledgor. If any Event of
Default shall be continuing, the Pledgee shall apply any and all cash
payments or distributions received under this SECTION 15(f) to pay
Obligations under the Credit Agreement, and any amounts so received by
the Pledgee in excess of the aggregate principal amount of Revolving
Loans shall be held by the Pledgee as Collateral in which the Pledgee
will have a perfected first-priority security interest pursuant to
SECTIONS 3.2, 3.3 and 3.6(a), and which shall be subject to the other
terms and conditions of this Agreement. The Pledgor shall cause
Xxxxxxxx South Pacific to remit directly to the Pledgee all non-cash
payments or distributions payable by Xxxxxxxx South Pacific for or on
account of the Xxxxxxxx South Pacific Loan Agreement, the Xxxxxxxx
South Pacific Note or any Xxxxxxxx South Pacific Equity, which non-cash
payments or distributions shall be held by the Pledgee as Collateral in
which the Pledgee will have a perfected first-priority security
interest pursuant to SECTIONS 3.2, 3.3 and 3.6(a), and which shall be
subject to the other terms and conditions of this Agreement. The
Pledgor shall, and shall cause Xxxxxxxx South Pacific to, enter into a
consent to assignment in substantially the form of ANNEX D hereto (the
"CONSENT TO ASSIGNMENT"), and shall deliver the same to the Pledgee
within twenty (20) Business Days after the date hereof.
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(g) The Pledgor covenants and agrees that it shall not, and to
the extent it can control the same, it shall not cause or permit Friday
to, do any of the following:
(i) take any action or omit to take any action that
will result in the cancellation, termination, compromise,
rescission, forgiveness, release or waiver of any of the
obligations of Friday under the Friday Note, other than as a
result and to the extent of any cash payments made by Friday
to or for the account of the Pledgor in respect of any of its
obligations under the Friday Note, which payments shall be
made directly by Friday to the Pledgee, for the benefit of the
Secured Creditors, pursuant to SECTION 15(h) hereof; or
(ii) exercise any rights of setoff or counterclaim
with respect to any obligations owed by the Pledgor to Friday
against any obligations owed by Friday to the Pledgor under
the Friday Note; or
(iii) amend any of the terms of payment or otherwise
modify any of the other provisions of the Friday Note, in a
manner which will reduce the value of or otherwise impair any
of the material rights, remedies or other benefits available
to the Pledgor with respect to the Friday Note, or otherwise
adversely affect in any material respect the validity or
enforceability of the Friday Note.
(h) The Pledgor shall cause Friday to make and remit directly
to the Pledgee, for the benefit of the Secured Creditors, all cash
payments and other cash distributions payable by Friday for or on
account of the Friday Note. So long as no Event of Default is
continuing, the Pledgee shall apply any and all cash payments or
distributions received under this SECTION 15(h) to pay down Revolving
Loans then outstanding, and any amounts so received by the Pledgee in
excess of the aggregate principal amount of Revolving Loans then
outstanding shall be remitted by the Pledgee to the Pledgor. If any
Event of Default shall be continuing, the Pledgee shall apply any and
all cash payments or distributions received under this SECTION 15(h),
to pay Obligations under the Credit Agreement, and any amounts so
received by the Pledgee in excess of the aggregate principal amount of
Revolving Loans shall be held by the Pledgee as Collateral in which the
Pledgee will have a perfected first-priority security interest pursuant
to SECTIONS 3.2, 3.3 and 3.6(a), and which shall be subject to the
other terms and conditions of this Agreement. The Pledgor shall cause
Friday to remit directly to the Pledgee all non-cash payments or
distributions payable by Friday for or on account of the Friday Note,
which non-cash payments or distributions shall be held by the Pledgee
as Collateral in which the Pledgee will have a perfected security
interest pursuant to SECTIONS 3.2, 3.3 and 3.6(a), and which shall be
subject to the other terms and conditions of this Agreement. The
Pledgor shall, and
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shall cause Friday to, enter into a Consent to Assignment in
substantially the form of ANNEX D hereto, and shall deliver the same to
the Pledgee within ten (10) Business Days after the date hereof. As
shall be provided by such Consent to Assignment, so long as any Event
of Default shall be continuing, the Pledgee shall be entitled to
accelerate the payment of all Indebtedness of Friday under the Friday
Note.
16. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of the Pledgor is located at the address specified in ANNEX B hereto. The
Pledgor agrees that it will not move its chief executive office except to such
new location as the Pledgor may establish in accordance with the provisions of
this SECTION 16. The originals of all documents in the possession of the Pledgor
evidencing all Collateral, including, but not limited to, all Limited Liability
Company Interests and Partnership Interests, and the only original books of
account and records of the Pledgor relating thereto are, and will continue to
be, kept at its chief executive office at the location specified in ANNEX B
hereto, or at such new locations as the Pledgor may establish in accordance with
the provisions of this SECTION 16. All Limited Liability Company Interests and
Partnership Interests are, and will continue to be, maintained at, and
controlled and directed (including, without limitation, for general accounting
purposes) from, such chief executive office location specified in ANNEX B
hereto, or such new locations as the Pledgor may establish in accordance with
the provisions of this SECTION 16. The Pledgor shall not establish a new
location for such offices until (a) it shall have given to the Pledgee not less
than 30 days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Pledgee may reasonably request, and (b) with respect to such new
location, it shall have taken all action, satisfactory to the Pledgee, to
maintain the security interest of the Pledgee in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect.
Promptly after establishing a new location for such offices in accordance with
the immediately preceding sentence, the Pledgor shall deliver to the Pledgee a
supplement to ANNEX B hereto so as to cause such ANNEX B hereto to be complete
and accurate.
17. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. (a) The Obligations
of the Pledgor under this Agreement shall be absolute, unconditional
and irrevocable and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated
or otherwise impaired or affected by, any circumstance or occurrence
whatsoever (other than termination of this Agreement pursuant to
SECTION 19 hereof), including, without limitation:
(i) the dissolution, termination of existence,
winding up, bankruptcy, liquidation, insolvency, appointment
of a receiver for all or any part of the Property of,
assignment for the benefit of creditors by,
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or the commencement of any Bankruptcy or Insolvency Proceeding
by or against, the Pledgor or any of the Subsidiaries of the
Pledgor;
(ii) the absorption, merger or consolidation of, or
the effectuation of any other change whatsoever in the name,
ownership, membership, constitution or place of organization
or formation of, the Pledgor or any of its Subsidiaries;
(iii) any extension or postponement of the time for
the payment of any of the Obligations, the acceptance of any
partial payment thereon, any and all other indulgences
whatsoever by any of the Secured Creditors in respect of any
of the Obligations, the taking, addition, substitution or
release, in whole or in part, at any time or times, of any
collateral or Liens securing any of the Obligations, or the
addition, substitution or release, in whole or in part, of any
Person or Persons primarily or secondarily liable in respect
of any of the Obligations of the Pledgor;
(iv) any action or delay in acting or failure to act
on the part of any Secured Creditor under any Loan Documents
or in respect of any Obligations of the Pledgor or any
collateral or Liens securing any Obligations of the Pledgor or
otherwise, including (A) any action by any Secured Creditor to
enforce any of its rights, remedies or claims in respect of
any collateral or Liens securing any Obligations of the
Pledgor, (B) any failure by any Secured Creditor strictly or
diligently to assert any rights or to pursue any remedies or
claims against the Pledgor or any other Person or Persons
under any of the Loan Documents or provided by statute
or at law or in equity, (C) any failure by the Pledgee or by
any other Secured Creditor to perfect or to preserve the
perfection or priority of any of its Liens securing any of the
Obligations of the Pledgor, or (D) any failure or refusal by
the Pledgee or by any other Secured Creditor to foreclose or
to realize upon any collateral or Liens securing any of the
Obligations of the Pledgor, or to take any action to enforce
any of its rights, remedies or claims under any Loan
Documents;
(v) any modification or amendment of, or any
supplement or addition to, any of the Loan Documents;
(vi) any waiver, consent or other action or
acquiescence by the Pledgee or by any other Secured Creditor
in respect of any default by the Pledgor in its performance or
observance of or compliance with any term, covenant or
condition contained in any of the Loan Documents;
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(vii) the existence or creation at any time or times
on or after the date of this Agreement of any claim, defense,
right of set-off or counterclaim of any nature whatsoever of
the Pledgor against any of its Subsidiaries or against any of
the Secured Creditors;
(viii) any incapacity or lack of authority of the
Pledgor;
(ix) any of the Obligations of the Pledgor or any of
the Loan Documents or any provision of any thereof or any of
the Liens securing any of the Obligations of the Pledgor shall
at any time and for any reason whatsoever cease to be in full
force or effect with respect to the Pledgor or shall be
declared null and void or illegal, invalid, unenforceable or
inadmissible in evidence in relation to the Pledgor, or any of
the Obligations of the Pledgor or any Liens securing any of
the Obligations of the Pledgor shall be subject to avoidance,
or shall be avoided, as a fraudulent transfer or fraudulent
conveyance, whether prior to or after the commencement of any
Insolvency Proceedings; or
(x) the existence of any other condition or
circumstance or the occurrence of any other event or condition
that might otherwise constitute a legal or equitable discharge
of or a suretyship defense to performance by the Pledgor of
any of its Obligations to any of the Secured Creditors.
(b) THE PLEDGOR HEREBY ABSOLUTELY, UNCONDITIONALLY AND
IRREVOCABLY WAIVES ALL SURETYSHIP AND OTHER SIMILAR DEFENSES TO
PERFORMANCE BY THE PLEDGOR OF ANY OF ITS OBLIGATIONS TO THE PLEDGEE OR
TO ANY OF THE OTHER SECURED CREDITORS.
(c) This Agreement shall be effective as to and shall be
enforceable by the Pledgee against the Pledgor from and after the
execution and delivery by the Pledgor of a counterpart of this
Agreement.
(d) The Pledgor hereby absolutely, unconditionally and
irrevocably assents to and waives notice of, and waives any defenses
that it may otherwise have as a result of, any and all circumstances,
occurrences and other matters specified in CLAUSES (i) through (x) of
PARAGRAPH (a) of this SECTION 17.
18. SALE OF COLLATERAL WITHOUT REGISTRATION. If at any time
when the Pledgee shall determine to exercise its right to sell all or any part
of the Collateral consisting of Securities, Limited Liability Company Interests
or Partnership Interests pursuant to SECTION 7, and such Collateral or the part
thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the Pledgee may,
in its sole and absolute discretion, sell such Collateral or part thereof by
private Sale in such
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manner and under such circumstances as the Pledgee may deem necessary or
advisable in order that such Sale may legally be effected without such
registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion: (a) may proceed to make
such private Sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act; (b) may approach and negotiate with a single possible purchaser
to effect such Sale; and (c) may restrict such Sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or Sale of such Collateral
or part thereof. In the event of any such Sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, may in good xxxxx
xxxx reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the Sale were deferred until the
registration as aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as
defined below), this Agreement shall terminate (provided that all
indemnities set forth herein including, without limitation, in SECTION
11 hereof shall survive any such termination), and the Pledgee, at the
request and expense of the Pledgor, will execute and deliver to the
Pledgor a proper Instrument or Instruments acknowledging the
satisfaction and termination of this Agreement (including, without
limitation, UCC termination statements and Instruments of satisfaction,
discharge and/or reconveyance), and will duly assign, transfer and
deliver to the Pledgor (without recourse, and without any
representation or warranty) such of the Collateral as may be in the
possession of the Pledgee and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement, together with
any moneys at the time held by the Pledgee or any of its sub-agents
hereunder, and, with respect to any Collateral consisting of an
Uncertificated Security (other than an Uncertificated Security credited
on the books of a Clearing Corporation), a Partnership Interest or a
Limited Liability Company Interest, a termination of the agreement
relating thereto executed and delivered by the issuer of such
Uncertificated Security pursuant to SECTION 3.2(a)(ii) or by the
respective partnership or limited liability company pursuant to SECTION
3.2(a)(iv). As used in this Agreement, the term "TERMINATION DATE"
shall mean the date upon which all of the Commitments have been
terminated and no Letters of Credit are outstanding and all Revolving
Loans have been paid in full and all other Obligations have been paid
in full (other than any indemnity, not then due and payable, which by
its terms shall survive such termination and payment).
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (i) at any time prior to the time at which all of
the Obligations have been paid in full and all of the Commitments and
Letters of Credit
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under the Credit Agreement have been terminated, in connection with a
Sale or disposition permitted by the Credit Agreement or any of the
other Loan Documents or is otherwise released at the direction of the
Required Lenders, or (ii) at any time thereafter, to the extent
permitted by the other Loan Documents, and in the case of CLAUSES (i)
and (ii), the proceeds of such Sale or disposition (or from such
release) are applied in accordance with the terms of the Credit
Agreement or such other Loan Document, as the case may be, to the
extent required to be so applied, the Pledgee, at the request and
expense of the Pledgor, will duly assign, transfer and deliver to the
Pledgor (without recourse, and without any representation or warranty)
such of the Collateral as is then being (or has been) so sold or
released and as may be in possession of the Pledgee and has not
theretofore been released pursuant to this Agreement.
(c) At any time that the Pledgor desires that Collateral be
released as provided in the foregoing SECTION 19(a) or (b), it shall
deliver to the Pledgee a certificate signed by a principal executive
officer of the Pledgor stating that the release of the respective
Collateral is permitted pursuant to SECTION 19(a) or (b). If reasonably
requested by the Pledgee (although the Pledgee shall have no obligation
to make any such request), the relevant Pledgor shall furnish
appropriate legal opinions (from counsel reasonably acceptable to the
Pledgee) to the effect set forth in the immediately preceding sentence.
The Pledgee shall have no liability whatsoever to any Secured Creditor
as the result of any release of Collateral by it as permitted by this
SECTION 19.
20. NOTICES, ETC. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by first-class
mail, postage prepaid, addressed:
(a) if to the Pledgor, at:
Xxxxxxxx Brands International, Inc.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Vice-President and Treasurer
Tel: (000) 000-0000
Fax: (000) 000-0000
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(b) if to the Pledgee, at:
BankBoston, N.A.
One Federal Street, Mail Stop: MA OF D03D
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Managing Director
Tel: (000) 000-0000
Fax: (000) 000-0000
(c) if to any Lender (other than the Pledgee), at such address
as such Lender shall have specified in the Credit Agreement;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
21. THE PLEDGEE. The Pledgee will hold, directly or indirectly
in accordance with this Agreement, all items of the Collateral at any time
received by it under this Agreement. It is expressly understood and agreed that
the obligations of the Pledgee with respect to the Collateral, interests therein
and the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in the UCC and in this Agreement.
22. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, discharged or terminated in any manner
whatsoever unless such change, waiver, discharge or termination is in writing
duly signed by the Pledgor and by the Pledgee.
23. MISCELLANEOUS. This Agreement shall create a continuing
security interest in the Collateral and shall (a) remain in full force and
effect, subject to release and/or termination as set forth in SECTION 19, (b) be
binding upon the Pledgor, its successors and assigns; PROVIDED, HOWEVER, that
Pledgor shall not assign any of its rights or obligations hereunder without the
prior written consent of the Pledgee, and (c) inure, together with the rights
and remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Parties and their respective successors, transferees and assigns. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
EXCEPT FOR SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK. The headings of the several sections and subsections in this Agreement are
for purposes of reference only and shall not limit or define the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute but one
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instrument. In the event that any provision of this Agreement shall prove to be
invalid or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all of the
parties hereto.
24. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
25. FULL RECOURSE. This Agreement is made with full recourse
to the Pledgor and pursuant to and upon all of the representations, warranties,
covenants and agreements on the part of the Pledgor contained herein and in the
other Loan Documents and otherwise in writing in connection herewith or
therewith.
26. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or any other
Secured Creditor liable as a member of any limited liability company or
partnership, and neither the Pledgee nor any other Secured Creditor by
virtue of this Agreement or otherwise (except as referred to in the
following sentence) shall have any of the duties, obligations or
liabilities of a member of any limited liability company or
partnership. The parties hereto expressly agree that, unless the
Pledgee shall become the absolute owner of Collateral consisting of a
Limited Liability Company Interest or Partnership Interest pursuant
hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor and/or
the Pledgor.
(b) Except as provided in the last sentence of PARAGRAPH (a)
of this SECTION 26, the Pledgee, by becoming a party to this Agreement,
did not intend to become a member of any limited liability company or
partnership or otherwise be deemed to be a co-venturer with respect to
the Pledgor or any limited liability company or partnership either
before or after an Event of Default shall have occurred. The Pledgee
shall have only those powers set forth herein, and the Secured
Creditors shall assume none of the duties, obligations or liabilities
of a member of any limited liability company or partnership or the
Pledgor, EXCEPT as provided in the last sentence of PARAGRAPH (a) of
this SECTION 26.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of the Pledgor as a
result of any of the pledges hereby effected.
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(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at
any time or in any event obligate the Pledgee or any other Secured
Creditor to appear in or defend any action or proceeding relating to
the Collateral, or to take any action hereunder or thereunder, or to
expend any money or incur any expenses or perform or discharge any
obligation, duty or liability under the Collateral.
27. ACTIONS REQUIRING APPROVAL UNDER THE LIMITED LIABILITY
COMPANY AGREEMENT.
(a) If an Event of Default shall be continuing, the Pledgor
shall take any action which the Pledgee may request in the exercise of
its rights and remedies under this Agreement in order to transfer or
assign the Collateral to the Pledgee or to such one or more third
parties as the Pledgee may designate, or to a combination of the
foregoing. To enforce the provisions of this SECTION 27, the Pledgee is
empowered to seek from any Governmental Authority, to the extent
required, consent to or approval of any involuntary transfer of control
of any entity whose Collateral is subject to this Agreement for the
purpose of seeking a BONA FIDE purchaser to whom control will
ultimately be transferred. The Pledgor agrees to cooperate with any
such purchaser and with the Pledgee in the preparation, execution and
filing of any forms and providing any information that may be necessary
or helpful in obtaining the consent to the assignment to such purchaser
of the Collateral. The Pledgor hereby agrees to consent to any such
involuntary transfer of control upon the request of the Pledgee during
the continuation of an Event of Default, and, without limiting any
rights of the Pledgee under this Agreement, to authorize the Pledgee to
nominate a trustee or receiver to assume control of the Collateral,
subject only to required judicial, or other consent required by
Governmental Authorities, in order to effectuate the transactions
contemplated in this SECTION 27. Such trustee or receiver shall have
all the rights and powers as provided to it by law or court order, or
to the Pledgee under this Agreement. The Pledgor shall cooperate fully
in obtaining the approval or consent of, and in making the required
filings with each Governmental Authority required to effectuate the
foregoing.
(b) The Pledgor shall use its best efforts to assist in
obtaining the consent or approval of any Governmental Authority or to
make any other filing, if required, for any action or transactions
contemplated by this Agreement. Anything herein to the contrary
notwithstanding, Pledgor shall not be obligated to sign any such
document which the Pledgor has reasonable cause to believe contains any
inaccuracy or to make any statements concerning the qualifications of
any transferee or assignee.
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(c) Without limiting the obligations of the Pledgor hereunder
in any respect, the Pledgor further agrees that if the Pledgor, upon or
after the occurrence of an Event of Default, should fail or refuse for
any reason whatsoever, without limitation, including any refusal
pursuant to SECTION 27(b) to execute any application necessary or
appropriate to obtain any governmental consent necessary or appropriate
for the exercise of any right of the Pledgee hereunder, the Pledgor
agrees that such application may be executed on the Pledgor's behalf by
the clerk of any competent jurisdiction without notice to the Pledgor
pursuant to court order.
28. SPECIFIC PERFORMANCE. For the avoidance of doubt, the
parties hereto hereby acknowledge that the Pledgor's covenants in SECTION 15
hereof are of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Pledgee shall be
entitled to a decree requiring specific performance by the Pledgor of such
covenants.
29. EFFECTIVENESS. This Agreement shall become effective on
and as of the date hereof when the Pledgee and the Pledgor shall have signed
counterparts hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the Pledgee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this PLEDGE
AGREEMENT to be duly executed and delivered by their respective officers
thereunto duly authorized on and as of the date first above written.
THE PLEDGOR:
[SEAL] XXXXXXXX BRANDS
INTERNATIONAL, INC.
Attest: /s/ By: /s/
-------------------------------------- -----------------------------
Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Assistant Secretary Title: Vice President and
Treasurer
THE COLLATERAL AGENT:
BANKBOSTON, N.A.,
as Collateral Agent
for the Lenders
By: /s/
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director