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EXHIBIT 10.4
PLEDGE AGREEMENT
This Pledge Agreement (the "Agreement") is dated as of January 20,
1998, by and among the parties executing this Agreement under the heading
"Pledgors" (such parties, along with any parties who execute and deliver to the
Agent an agreement in the form attached hereto as Schedule E, being hereinafter
referred to collectively as the "Pledgors" and individually as a "Pledgor"),
each with its mailing address as set forth on the signature page hereto and
XXXXXX TRUST AND SAVINGS BANK, an Illinois banking corporation ("Xxxxxx"), with
its mailing address at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, acting
as agent hereunder for the Secured Creditors hereinafter identified and defined
(Xxxxxx acting as such agent and any successor or successors to Xxxxxx acting in
such capacity being hereinafter referred to as the "Agent");
PRELIMINARY STATEMENTS
X. Xxxxxx Industrial Group, Inc., a Georgia corporation (the
"Company"), certain Subsidiaries of the Company, Xxxxxx, individually and as
agent, and certain lenders have entered into a Credit Agreement dated as of even
date herewith (such Credit Agreement, as the same may be amended or modified
from time to time, including amendments and restatements thereof in its
entirety, being hereinafter referred to as the "Credit Agreement"), pursuant to
which Xxxxxx and other lenders from time to time party to the Credit Agreement
(Xxxxxx and the other lenders which are now or from time to time hereafter
become party to the Credit Agreement, being hereinafter referred to collectively
as the "Lenders" and individually as a "Lender") have agreed, subject to certain
terms and conditions, to extend credit and make certain other financial
accommodations available to the Borrowers identified therein.
B. As a condition precedent to extending credit or otherwise making
financial accommodations available to the Borrowers under the Credit Agreement,
the Lenders have required, among other things, that each Pledgor grant to the
Agent for the benefit of the Lenders a lien on and security interest in certain
personal property of such Pledgor pursuant to this Agreement.
C. The Company owns, directly or indirectly, all or substantially all
of the equity interests in each Borrower and provides each Borrower with
financial, management, administrative, and technical support which enables such
Borrower to conduct its business in an orderly and efficient manner in the
ordinary course.
D. Each Borrower will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Lenders to the Company.
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NOW, THEREFORE, for and in consideration of the execution and delivery
by the Lenders of the Credit Agreement, and other good and valuable
consideration, receipt whereof is hereby acknowledged, the parties hereto hereby
agree as follows:
Section 1. Terms Defined in Credit Agreement. All capitalized terms
used herein without definition shall have the same meanings herein as such terms
have in the Credit Agreement. The term "Pledgor" and "Pledgors" as used herein
shall mean and include the Pledgors collectively and also each individually,
with all grants, representations, warranties and covenants of and by the
Pledgors, or any of them, herein contained to constitute joint and several
grants, representations, warranties and covenants of and by the Pledgors;
provided, however, that unless the context in which the same is used shall
otherwise require, any grant, representation, warranty or covenant contained
herein related to the Collateral shall be made by each Pledgor only with respect
to the Collateral owned by it or represented by such Pledgor as owned by it.
Section 2. Grant of Security Interest in the Collateral. Each Pledgor
hereby grants to the Agent a security interest in, in each case for the ratable
benefit of the Lenders, and acknowledges and agrees that the Agent has and shall
continue to have for the ratable benefit of the Lenders a continuing security
interest in, any and all right, title and interest of each Pledgor, whether now
owned or existing or hereafter created, acquired or arising, in and to the
following (collectively, the "Collateral"):
(a) Stock Collateral. (i) All shares of the capital stock of each
of the issuers listed and described on Schedule A attached hereto owned
or held by such Pledgor, whether now owned or hereafter acquired (those
shares delivered to and deposited with the Agent on the date hereof
being listed and described on Schedule A attached hereto), and all
substitutions and additions to such shares (herein, the "Pledged
Securities"), (ii) all dividends, distributions and sums distributable
or payable from, upon or in respect of the Pledged Securities and
(iii) all other rights and privileges incident to the Pledged
Securities (all of the foregoing being hereinafter referred to
collectively as the "Stock Collateral");
(b) Partnership Interest Collateral. (i) Each partnership
identified on Schedule B attached hereto and made a part hereof (such
partnerships being hereinafter referred to collectively as the
"Partnerships" and individually as a "Partnership") and (ii) any and
all payments and distributions of whatever kind or character, whether
in cash or other property, at any time made, owing or payable to such
Pledgor in respect of or on account of its present or hereafter
acquired interests in the Partnerships, whether due or to become due
and whether representing profits, distributions pursuant to complete or
partial liquidation or dissolution of any such Partnership,
distributions representing the complete
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or partial redemption of such Pledgor's interest in any such
Partnership or the complete or partial withdrawal of such Pledgor
from any such Partnership, repayment of capital contributions,
payment of management fees or commissions, or otherwise, and the
right to receive, receipt for, use and enjoy all such payments and
distributions (all of the foregoing being hereinafter collectively
called the "Partnership Interest Collateral"); and
(c) Proceeds. All proceeds of the foregoing.
All terms which are used in this Agreement which are defined in the Uniform
Commercial Code of the State of Illinois ("UCC") shall have the same meanings
herein as such terms are defined in the UCC, unless this Agreement shall
otherwise specifically provide.
Section 3. Obligations Hereby Secured. This Agreement is made and given
to secure, and shall secure, the payment and performance of (i)(x) any and all
indebtedness, obligations and liabilities of the Borrowers to the Agent, the
Lenders, or any of them individually, evidenced by or otherwise arising out of
or relating to the Credit Agreement or any promissory note of any of the
Borrowers issued at any time under the Credit Agreement (including all notes
issued in extension or renewal thereof or in substitution or replacement
therefor) and (y) any liability of the Pledgors, or any of them individually,
arising out of the Credit Agreement, as well as for any and all other
indebtedness, obligations and liabilities of the Pledgors, or any of them
individually, to the Agent, the Lenders, or any of them individually, evidenced
by or otherwise arising out of or relating to this Agreement or any other Loan
Document, in each case, whether now existing or hereafter arising (and whether
arising before or after the filing of a petition in bankruptcy), due or to
become due, direct or indirect, absolute or contingent, and howsoever evidenced,
held or acquired, and (ii) any and all expenses and charges, legal or otherwise,
suffered or incurred by the Agent, the Lenders, or any of them individually, in
collecting or enforcing any of such indebtedness, obligations or liabilities or
in realizing on or protecting or preserving any security therefor, including,
without limitation, the lien and security interest granted hereby (all of the
foregoing being hereinafter referred to as the "Obligations"). Notwithstanding
anything in this Agreement to the contrary, the right of recovery against any
Pledgor (other than the Borrowers to which this limitation shall not apply)
under this Agreement shall not exceed $1 less than the amount which would render
such Pledgor's obligations under this Agreement void or voidable under
applicable law, including fraudulent conveyance law.
Section 4. Covenants, Agreements, Representations and Warranties. Each
Pledgor hereby covenants and agrees with, and represents and warrants to, the
Agent and the Lenders that:
(a) Each Pledgor is and shall be the sole and lawful legal, record
and beneficial owner of its Collateral. Each Pledgor's chief executive
office or place of business at the
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address listed under such Pledgor's name on Schedule A and Schedule B
hereto, as applicable. Each Pledgor agrees that it will not change any
location set forth on the applicable Schedule hereto without prior
written notice to the Agent, unless such location shall be outside the
United States, in which event, the Agent's prior written consent shall
be required, which consent shall not be unreasonably withheld. No
Pledgor shall, without the Agent's prior written consent, sell, assign,
or otherwise dispose of the Collateral or any interest therein. The
Collateral, and every part thereof, is and shall be free and clear of
all security interests, liens, rights, claims, attachments, levies and
encumbrances of every kind, nature and description and whether
voluntary or involuntary, except for the security interest of the Agent
hereunder and for other Liens which are expressly permitted by the
Credit Agreement. Each Pledgor shall warrant and defend the Collateral
against any claims and demands of all persons at any time claiming the
same or any interest in the Collateral adverse to the Agent and the
Lenders.
(b) Each Pledgor agrees to execute and deliver to the Agent such
further agreements, assignments, instruments and documents and to do
all such other things as the Agent may deem necessary or appropriate to
assure the Agent its lien and security interest hereunder, including
such assignments, acknowledgments (including acknowledgments of
assignment in the form attached hereto as Schedule C) stock powers,
financing statements, instruments and documents as the Agent may from
time to time require in order to comply with the Uniform Commercial
Code as enacted in the State of Illinois and any successor statute(s)
thereto (the "UCC"). Each Pledgor hereby agrees that a carbon,
photographic or other reproduction of this Agreement or any such
financing statement is sufficient for filing as a financing statement
by the Agent without notice thereof to such Pledgor wherever the Agent
in its discretion desires to file the same. In the event for any reason
the law of any jurisdiction other than Illinois becomes or is
applicable to the Collateral or any part thereof, or to any of the
Obligations, each Pledgor agrees to execute and deliver all such
agreements, assignments, instruments and documents and to do all such
other things as the Agent in its sole discretion deems necessary or
appropriate to preserve, protect and enforce the lien and security
interest of the Agent under the law of such other jurisdiction to at
least the same extent as such security interests would be protected
under the UCC.
(c) If, as and when any Pledgor (x) delivers any securities for
pledge hereunder in addition to those listed on Schedule A hereto or
(y) pledges interests in any Partnership in addition to those listed on
Schedule B hereto, the Pledgors shall furnish to the Agent a duly
completed and executed amendment to such Schedule in substantially the
form (with appropriate insertions) of Schedule D hereto reflecting the
securities pledged hereunder after giving effect to such addition.
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(d) None of the Collateral constitutes margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System).
(e) On failure of any Pledgor to perform any of the agreements and
covenants herein contained, the Agent may, at its option, perform the
same and in so doing may expend such sums as the Agent may deem
advisable in the performance thereof, including, without limitation,
the payment of any taxes, liens and encumbrances, expenditures made in
defending against any adverse claim, and all other expenditures which
the Agent may be compelled to make by operation of law or which Agent
may make by agreement or otherwise for the protection of the security
hereof. All such sums and amounts so expended shall be repayable by the
Pledgors immediately without notice or demand, shall constitute
additional Obligations secured hereunder and shall bear interest from
the date said amounts are expended at the rate per annum (computed on
the basis of a 365-day or 366-day year, as the case may be, for the
actual number of days elapsed) determined by adding 2% to the Base Rate
(such rate per annum as so determined being hereinafter referred to as
the "Default Rate"). No such performance of any covenant or agreement
by the Agent on behalf of such Pledgor, and no such advancement or
expenditure therefor, shall relieve such Pledgor of any default under
the terms of this Agreement or in any way obligate the Agent or any
Lender to take any further or future action with respect thereto. The
Agent, in making any payment hereby authorized, may do so according to
any xxxx, statement or estimate procured from the appropriate public
office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, statement or estimate, or into the validity of
any tax assessment, sale, forfeiture, tax lien or title or claim. The
Agent, in performing any act hereunder, shall be the sole judge of
whether the relevant Pledgor is required to perform the same under the
terms of this Agreement. The Agent is hereby authorized to charge any
depository or other account of any Pledgor maintained with the Agent
for the amount of such sums and amounts so expended.
Section 5. Special Provisions Re: Stock Collateral.
(a) Each Pledgor has the right to vote the Pledged Securities and
there are no restrictions upon the voting rights associated with, or
the transfer of, any of the Pledged Securities, except as provided by
federal and state laws applicable to the sale of securities generally.
(b) The certificates for all shares of the Pledged Securities shall
be delivered by the relevant Pledgor to the Agent or any bailee of the
Agent duly endorsed in blank for transfer or accompanied by an
appropriate assignment or assignments or an appropriate undated stock
power or powers, in every case sufficient to transfer title thereto.
Each Pledgor acknowledges and agrees that National City Bank,
Cleveland, Ohio ("NatCity")
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currently acts and shall continue to act as the Agent's bailee
until such time as NatCity delivers the Pledged Securities and such
stock powers to the Agent or any other bailee of the Agent. The Agent
may at any time after the occurrence of an Event of Default cause to be
transferred into its name or into the name of its nominee or nominees
any and all of the Pledged Securities. The Agent shall at all times
have the right to exchange the certificates representing the Pledged
Securities for certificates of smaller or larger denominations.
(c) The Pledged Securities have been validly issued and are fully
paid and non-assessable. There are no outstanding commitments or other
obligations of the issuers of any of the Pledged Securities to issue,
and no options, warrants or other rights of any individual or entity to
acquire, any share of any class or series of capital stock of such
issuers. The Pledged Securities listed and described on Schedule A
attached hereto and delivered concurrently herewith to NatCity as the
Agent's bailee constitute the percentage of the issued and outstanding
capital stock of each series and class of the issuers thereof as set
forth thereon owned by the relevant Pledgor. Each Pledgor further
agrees that in the event any such issuer shall issue any additional
capital stock of any series or class (whether or not entitled to vote)
to such Pledgor or otherwise on account of its ownership interest
therein, each Pledgor will forthwith pledge and deposit hereunder, or
cause to be pledged and deposited hereunder, all such additional shares
of such capital stock.
Section 6. Special Provisions Re: Partnership Interest Collateral.
(a) Each Pledgor further warrants to and agrees with the Agent
and the Lenders as follows:
(i) that said Partnerships are valid and existing entities of
the type listed on Schedule B and are duly organized and existing
under applicable law;
(ii) that the Partnership Interest Collateral listed and
described on Schedule B attached hereto constitutes the percentage of
the equity interest in each Partnership set forth thereon owned by the
relevant Pledgor;
(iii) that the copies of the partnership agreements (each such
agreement being hereinafter referred to as "Organizational Agreement")
for the Partnerships heretofore delivered to the Agent are true and
correct copies thereof and have not been amended or modified in any
respect, except for such amendments or modifications as are attached
to the copies thereof delivered to the Agent; and
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(iv) that the Partnerships have no loans outstanding to the
Pledgors, and no Pledgor will borrow money from the Partnerships.
(b) The Pledgors shall not, without the prior written consent of
the Agent, consent to any amendment or modification to any of the
Organizational Agreements which would in any manner adversely affect or
impair the Partnership Interest Collateral or reduce or dilute the rights
of the Pledgor with respect to any of the Partnerships, any of such done
without such prior written consent to be null and void. The Pledgors shall
promptly send to the Agent copies of all notices and communications with
respect to each Partnership alleging the existence of a default by an
Pledgor in the performance of any of its obligations under any
Organizational Agreement. Each Pledgor agrees that it will promptly notify
the Agent of any litigation which might adversely affect such Pledgor or a
Partnership or any of their respective properties and of any material
adverse change in the operations, business properties, assets or
conditions, financial or otherwise, of any Pledgor or any Partnership.
Each Pledgor shall promptly perform all of its obligations under each
Organizational Agreement. In the event any Pledgor fails to pay or perform
any obligation arising under any Organizational Agreement or otherwise
related to any Partnership, the Agent may, but need not, pay or perform
such obligation at the expense and for the account of the Pledgors and all
funds expended for such purposes shall constitute Obligations secured
hereby which the Pledgors promise to pay to the Agent together with
interest thereon at the Default Rate.
Section 7. Voting Rights and Dividends. Unless and until an Event of
Default hereunder has occurred and thereafter until notified by the Agent
pursuant to Section 9(b) hereof:
(a) Each Pledgor shall be entitled to exercise all voting and/or
consensual powers pertaining to the Collateral of such Pledgor, or any
part thereof, for all purposes not inconsistent with the terms of this
Agreement or any other document evidencing or otherwise relating to any of
the Obligations.
(b) Each Pledgor shall be entitled to receive and retain all
dividends and distributions in respect of the Collateral which are paid in
cash of whatsoever nature; provided, however, that such dividends and
distributions representing:
(i) stock or liquidating dividends or a distribution or return
of capital upon or in respect of the Pledged Securities or any part
thereof or resulting from a split-up, revision or reclassification of
the Pledged Securities or any part thereof or received in addition to,
in substitution of or in exchange for the Pledged Securities or any part
thereof as a result of a merger, consolidation or otherwise, or
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(ii) distributions in complete or partial liquidation of any
Partnership or the interest of such Pledgor therein,
in each case, shall be paid, delivered or transferred, as appropriate,
directly to the Agent immediately upon the receipt thereof by such
Pledgor and shall, in the case of cash, be applied by the Agent to the
satisfaction of Obligations in accordance with the provisions of Section
10 hereof, whether or not the same may then be due or otherwise
adequately secured and shall, in the case of all other property,
together with any cash received by the Agent and not applied as
aforesaid, be held by the Agent pursuant hereto as part of the Pledged
Securities as additional Pledged Securities pledged under and subject to
the terms of this Agreement; or
(c) In order to permit each Pledgor to exercise such voting
and/or consensual powers which it is entitled to exercise under
subsection (a) above and to receive such distributions which such
Pledgor is entitled to receive and retain under subsection (b) above,
the Agent will, if necessary, upon the written request of such Pledgor,
from time to time execute and deliver to such Pledgor appropriate
proxies and dividend orders.
Section 8. Power of Attorney. Each Pledgor hereby appoints the Agent,
and each of its nominees, officers, agents, attorneys, and any other person whom
the Agent may designate, as such Pledgor's attorney-in-fact, with full power and
authority to ask, demand, collect, receive, receipt for, xxx for, compound and
give acquittance for any and all sums or properties which may be or become due,
payable or distributable in respect of the Collateral or any part thereof, with
full power to settle, adjust or compromise any claim thereunder or therefor as
fully as such Pledgor could itself do, to endorse or sign the Pledgor's name on
any assignments, stock powers, or other instruments of transfer and on any
checks, notes, acceptances, money orders, drafts, and any other forms of payment
or security that may come into the Agent's possession and on all documents of
satisfaction, discharge or receipt required or requested in connection
therewith, and, in its discretion, to file any claim or take any other action or
proceeding, either in its own name or in the name of such Pledgor, or otherwise,
which the Agent may deem necessary or appropriate to collect or otherwise
realize upon all or any part of the Collateral, or effect a transfer thereof, or
which may be necessary or appropriate to protect and preserve the right, title
and interest of the Agent in and to such Collateral and the security intended to
be afforded hereby. Each Pledgor hereby ratifies and approves all acts of any
such attorney and agrees that neither the Agent nor any such attorney will be
liable for any such acts or omissions nor for any error of judgment or mistake
of fact or law other than such person's gross negligence or willful misconduct.
The Agent may file one or more financing statements disclosing its security
interest in all or any part of the Collateral without any Pledgor's signature
appearing thereon, and each Pledgor also hereby grants the Agent a power of
attorney to execute any such financing
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statements, and any amendments or supplements thereto, on behalf of
such Pledgor without notice thereof to such Pledgor. The foregoing powers of
attorney, being coupled with an interest, are irrevocable until the Obligations
have been fully satisfied and any commitment of the Lenders to extend credit
constituting Obligations to any of the Borrowers has terminated; provided,
however, that the Agent agrees, as a personal covenant to the relevant Pledgor,
not to exercise the powers of attorney set forth in this Section unless an Event
of Default exists.
Section 9. Defaults and Remedies. (a) The occurrence of any event or
the existence of any condition which is specified as an "Event of Default" under
the Credit Agreement shall constitute an "Event of Default" hereunder.
(b) Upon the occurrence of any Event of Default, all rights of the
Pledgors to receive and retain the distributions which they are entitled to
receive and retain pursuant to Section 7(b) hereof shall, at the option of the
Agent cease and thereupon become vested in the Agent which, in addition to all
other rights provided herein or by law, shall then be entitled solely and
exclusively to receive and retain the distributions which the Pledgors would
otherwise have been authorized to retain pursuant to Section 7(b) hereof and all
rights of the Pledgors to exercise the voting and/or consensual powers which
they are entitled to exercise pursuant to Section 7(a) hereof shall, at the
option of the Agent, cease and thereupon become vested in the Agent which, in
addition to all other rights provided herein or by law, shall then be entitled
solely and exclusively to exercise all voting and other consensual powers
pertaining to the Collateral and to exercise any and all rights of conversion,
exchange or subscription and any other rights, privileges or options pertaining
thereto as if the Agent were the absolute owner thereof including, without
limitation, the right to exchange, at its discretion, the Collateral or any part
thereof upon the merger, consolidation, reorganization, recapitalization or
other readjustment of the respective issuer thereof or upon the exercise by or
on behalf of any such issuer or the Agent of any right, privilege or option
pertaining to the Collateral or any part thereof and, in connection therewith,
to deposit and deliver the Collateral or any part thereof with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Agent may determine. In the event the Agent in good faith
believes any of the Collateral constitutes restricted securities within the
meaning of any applicable securities law, any disposition thereof in compliance
with such laws shall not render the disposition commercially unreasonable.
(c) Upon the occurrence of any Event of Default, the Agent shall have,
in addition to all other rights provided herein or by law, the rights and
remedies of a secured party under the UCC (regardless of whether the UCC is the
law of the jurisdiction where the rights or remedies are asserted and regardless
of whether the UCC applies to the affected Collateral), and further the Agent
may, without demand and without advertisement, notice, hearing or process of
law, all of which each Pledgor hereby waives to the extent permitted by law, at
any time or times, sell and deliver any or all of the Collateral held by or for
it at public or private sale, at any securities
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exchange or broker's board or at any of the Agent's offices or elsewhere, for
cash, upon credit or otherwise, at such prices and upon such terms as the Agent
deems advisable, in its sole discretion. In the exercise of any such remedies,
the Agent may sell the Collateral as a unit even though the sales price thereof
may be in excess of the amount remaining unpaid on the Obligations. Also, if
less than all the Collateral is sold, the Agent shall have no duty to marshal or
apportion the part of the Collateral so sold as between the Pledgors, or any of
them, but may sell and deliver any or all of the Collateral without regard to
which of the Pledgors are the owners thereof. In addition to all other sums due
the Agent or any Lender hereunder, each Pledgor shall pay the Agent and the
Lenders all costs and expenses incurred by the Agent and such Lenders, including
reasonable attorneys' fees and court costs, in obtaining, liquidating or
enforcing payment of Collateral or the Obligations or in the prosecution or
defense of any action or proceeding by or against the Agent, such Lenders or any
Pledgor concerning any matter arising out of or connected with this Agreement or
the Collateral or the Obligations including, without limitation, any of the
foregoing arising in, arising under or related to a case under the United States
Bankruptcy Code (or any successor statute). Any requirement of reasonable notice
shall be met if such notice is personally served on or mailed, postage prepaid,
to the Pledgors in accordance with Section 14(b) hereof at least ten days before
the time of sale or other event giving rise to the requirement of such notice;
provided, however, no notification need be given to a Pledgor if such Pledgor
has signed, after an Event of Default has occurred, a statement renouncing any
right to notification of sale or other intended disposition. The Agent shall not
be obligated to make any sale or other disposition of the Collateral regardless
of notice having been given. The Agent or any Lender may be the purchaser at any
sale or other disposition of the Collateral or any part thereof. Each Pledgor
hereby waives all of its rights of redemption from any sale or other disposition
of the Collateral or any part thereof. The Agent may postpone or cause the
postponement of the sale of all or any portion of the Collateral by announcement
at the time and place of such sale, and such sale may, without further notice,
be made at the time and place to which the sale was postponed or the Agent may
further postpone such sale by announcement made at such time and place.
EACH PLEDGOR AGREES THAT IF ANY PART OF THE COLLATERAL IS SOLD AT ANY
PUBLIC OR PRIVATE SALE, THE AGENT MAY ELECT TO SELL ONLY TO A BUYER WHO WILL
GIVE FURTHER ASSURANCES, SATISFACTORY IN FORM AND SUBSTANCE TO THE AGENT,
RESPECTING COMPLIANCE WITH THE REQUIREMENTS OF THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, AND A SALE SUBJECT TO SUCH CONDITION SHALL BE DEEMED
COMMERCIALLY REASONABLE.
EACH PLEDGOR FURTHER AGREES THAT IN ANY SALE OF ANY PART OF THE COLLATERAL,
THE AGENT IS HEREBY AUTHORIZED TO COMPLY WITH ANY LIMITATION OR RESTRICTION IN
CONNECTION WITH SUCH SALE AS IT MAY BE ADVISED BY COUNSEL IS NECESSARY IN ORDER
TO AVOID ANY VIOLATION OF APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION,
COMPLIANCE WITH SUCH PROCEDURES AS MAY RESTRICT THE NUMBER OF PROSPECTIVE
BIDDERS AND
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PURCHASERS AND/OR FURTHER RESTRICT SUCH PROSPECTIVE BIDDERS OR PURCHASERS TO
PERSONS WHO WILL REPRESENT AND AGREE THAT THEY ARE PURCHASING FOR THEIR OWN
ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION OR RESALE OF SUCH
COLLATERAL ), OR IN ORDER TO OBTAIN ANY REQUIRED APPROVAL OF THE SALE OR OF THE
PURCHASER BY ANY GOVERNMENTAL REGULATORY AUTHORITY OR OFFICIAL, AND EACH PLEDGOR
FURTHER AGREES THAT SUCH COMPLIANCE SHALL NOT RESULT IN SUCH SALE BEING
CONSIDERED OR DEEMED NOT TO HAVE BEEN MADE IN A COMMERCIALLY REASONABLE MANNER,
NOR SHALL THE AGENT BE LIABLE OR ACCOUNTABLE TO ANY PLEDGOR FOR ANY DISCOUNT
ALLOWED BY REASON OF THE FACT THAT SUCH COLLATERAL IS SOLD IN COMPLIANCE WITH
ANY SUCH LIMITATION OR RESTRICTION.
(d) In the event the Agent shall sell any part of the Partnership
Interest Collateral at a foreclosure sale, each Pledgor hereby grants the
purchaser of such portion of the Partnership Interest Collateral to the fullest
extent of its capacity, the ability (but not the obligation) to become a partner
in the relevant Partnership (subject to the approval of the general partner of
the relevant Partnership, in the exercise of its sole discretion), in the place
and stead of such Pledgor. To exercise such right, the purchaser shall give
written notice to the relevant Partnership of its election to become a partner
in such Partnership. Following such election and giving of consent by all
necessary partners of the relevant Partnership as to the purchaser becoming a
partner, the purchaser shall have the right and powers and be subject to the
liabilities of a partner under the relevant Organizational Agreement and the
partnership act governing the Partnership.
(e) Upon the occurrence and during the continuation of any Event of
Default, in addition to all other rights provided herein or by law, the Agent
shall have the right to cause all or any part of the Partnership Interest
Collateral of any of the Pledgors in any one or more of the Partnerships to be
redeemed and to cause a withdrawal, in whole or in part, of any Pledgor from any
Partnership or any of its Partnership Interest Collateral therein.
(f) The powers conferred upon the Agent hereunder are solely to protect
its interest in the Collateral and shall not impose on it any duties to exercise
such powers. The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equivalent to that which the Agent accords
its own property, consisting of similar types securities, it being understood,
however, that the Agent shall have no responsibility for (i) ascertaining or
taking any action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relating to any Collateral, whether or not the Agent
has or is deemed to have knowledge of such matters, (ii) taking any necessary
steps to preserve rights against any parties with respect to any Collateral, or
(iii) initiating any action to protect the Collateral or any part thereof
against the possibility of a decline in market value. This Agreement constitutes
an assignment of rights only and not an assignment of any duties or obligations
of the Pledgors in any way related to the Collateral, and the Agent shall have
no duty
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or obligation to discharge any such duty or obligation. By its
acceptance hereof, the Agent does not undertake to perform or discharge and
shall not be responsible or liable for the performance or discharge of any such
duties or responsibilities and shall not in any event become a "Substituted
Limited Partner" or words of like import (as defined in the relevant
Organizational Agreement) in the relevant Partnership. Neither the Agent or any
Lender, nor any party acting as attorney for the Agent or any Lender, shall be
liable hereunder for any acts or omissions or for any error of judgment or
mistake of fact or law other than such person's gross negligence or willful
misconduct.
(g) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any Pledgor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not operate
as a waiver; and no waiver shall be effective unless it is in writing, signed by
the party against whom such waiver is sought to be enforced and then only to the
extent specifically stated. The rights and remedies of the Agent and the Lenders
under this Agreement shall be cumulative and not exclusive of any other right or
remedy which the Agent or the Lenders may have. For purposes of this Agreement,
an Event of Default shall be construed as continuing after its occurrence until
the same is waived in writing by the Lenders or the Required Lenders, as the
case may be, in accordance with the Credit Agreement.
Section 10. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent during the existence of any Event
of Default shall, when received by the Agent in cash or its equivalent, be
applied by the Agent in reduction of, or as collateral security for, the
Obligations in accordance with the terms of the Credit Agreement. The Pledgors
shall remain liable to the Agent and the Lenders for any deficiency. Any surplus
remaining after the full payment and satisfaction of the Obligations shall be
returned to the Pledgors, or to whomsoever the Agent reasonably determines is
lawfully entitled thereto.
Section 11. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and any commitment to extend constituting Obligations to and of the
Borrowers shall have terminated. Upon such termination of this Agreement, the
Agent shall, upon the request and at the expense of the Pledgors, forthwith
release all its liens and security interests hereunder.
Section 12. Primary Security; Obligations Absolute. The lien and
security herein created and provided for stand as direct and primary security
for the Obligations. No application of any sums received by the Agent in respect
of the Collateral or any disposition thereof to the reduction of the Obligations
or any portion thereof shall in any manner entitle any Pledgor to any right,
title or interest in or to the Obligations or any collateral security therefor,
whether by
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subrogation or otherwise, unless and until all Obligations have been fully paid
and satisfied and any commitments to extend credit constituting Obligations to
any of the Borrowers shall have terminated. Each Pledgor acknowledges and agrees
that the lien and security hereby created and provided for are absolute and
unconditional and shall not in any manner be affected or impaired by any acts or
omissions whatsoever of the Agent, any Lender or any other holder of any of the
Obligations, and without limiting the generality of the foregoing, the lien and
security hereof shall not be impaired by any acceptance by the Agent, any Lender
or any other holder of any of the Obligations of any other security for or
guarantors upon any Obligations or by any failure, neglect or omission on the
part of the Agent, any Lender or any other holder of any of the Obligations to
realize upon or protect any of the Obligations or any collateral security
therefor. The lien and security hereof shall not in any manner be impaired or
affected by (and the Agent and the Lenders, without notice to anyone, are hereby
authorized to make from time to time) any sale, pledge, surrender, compromise,
settlement, release, renewal, extension, indulgence, alteration, substitution,
exchange, change in, modification or disposition of any of the Obligations, or
of any collateral security therefor, or of any guaranty thereof, or of any
instrument or agreement setting forth the terms and conditions pertaining to any
of the foregoing. The Lenders may at their discretion at any time grant credit
to any of the Borrowers without notice to any Pledgor in such amounts and on
such terms as the Lenders may elect without in any manner impairing the lien and
security hereby created and provided for. In order to realize hereon and to
exercise the rights granted the Agent hereunder and under applicable law as
against any Pledgor or any portion of the Collateral in which any such Pledgor
has rights, there shall be no obligation on the part of the Agent, any Lender or
any other holder of any of the Obligations at any time to first resort for
payment to any of the Borrowers or any other Pledgor or any other Person, its
property or estate or to any guaranty of the Obligations or any portion thereof
or to resort to any other collateral security, property, liens or any other
rights or remedies whatsoever, and the Agent shall have the right to enforce
this Agreement as against any Pledgor or any portion of the Collateral in which
any such Pledgor has rights, irrespective of whether or not other proceedings or
steps are pending seeking resort to or realization upon or from any of the
foregoing.
Section 13. The Agent. In acting under or by virtue of this Agreement,
Agent shall be entitled to all the rights, authority, privileges and immunities
provided in Section 10 of the Credit Agreement, all of which provisions of said
Section 10 are incorporated by reference herein with the same force and effect
as if set forth herein in their entirety. The Agent hereby disclaims any
representation or warranty to the Lenders or any other holders of the
Obligations concerning the perfection of the liens and security interests
granted hereunder or in the value of the Collateral.
Section 14. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and security
interest in the Collateral and shall be binding upon each Pledgor, its
successors and assigns, and shall inure, together with the
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rights and remedies of the Agent and the Lenders hereunder, to the benefit of
the Agent and the Lenders, and their successors and assigns; provided, however,
that no Pledgor may assign its rights or delegate its duties hereunder without
the Agent's prior written consent. Without limiting the generality of the
foregoing, and subject to the provisions of the Credit Agreement, any Lender may
assign or otherwise transfer any indebtedness held by it secured by this
Agreement to any other person, and such other person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender herein or
otherwise.
(b) All communications provided for herein shall be in writing, except
as otherwise specifically provided for hereinabove, and shall be deemed to have
been given or made, if to any Pledgor when given to any of the Borrowers in
accordance with Section 12.8 of the Credit Agreement, or if to the Agent or any
Lender, when given to such party in accordance with Section 12.8 of the Credit
Agreement.
(c) No Lender shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization upon any
Collateral subject to this Agreement or for the execution of any trust or power
hereof or for the appointment of a receiver, or for the enforcement of any other
remedy under or upon this Agreement; it being understood and intended that no
one or more of the Lenders shall have any right in any manner whatsoever to
affect, disturb or prejudice the lien and security interest of this Agreement by
its or their action or to enforce any right hereunder, and that all proceedings
at law or in equity shall be instituted, had and maintained by the Agent in the
manner herein provided for the benefit of the Lenders.
(d) In the event that any provision hereof shall be deemed to be
invalid by reason of the operation of any law or by reason of the interpretation
placed thereon by any court, this Agreement shall be construed as not containing
such provision, but only as to such locations where such law or interpretation
is operative, and the invalidity of such provision shall not affect the validity
of any remaining provision hereof, and any and all other provisions hereof which
are otherwise lawful and valid shall remain in full force and effect. Without
limiting the generality of the foregoing, in the event that this Agreement shall
be deemed to be invalid or otherwise unenforceable with respect to any Pledgor,
such invalidity or unenforceability shall not affect the validity of this
Agreement with respect to the other Pledgors.
(e) This Agreement shall be deemed to have been made in the State of
Illinois and shall be governed by, and construed in accordance with, the laws of
the State of Illinois. All terms which are used in this Agreement which are
defined in the UCC shall have the same meanings herein as said terms do in the
UCC unless this Agreement shall otherwise specifically provide. The headings in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning of any provision hereof.
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(f) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same instrument. Each
Pledgor acknowledges that this Agreement is and shall be effective upon its
execution and delivery by such Pledgor to the Agent, and it shall not be
necessary for the Agent to execute this Agreement or any other acceptance hereof
or otherwise to signify or express its acceptance hereof.
(g) In the event the Agent and the Lenders shall at any time in their
discretion permit a substitution of Pledgors hereunder or a party shall wish to
become a Pledgor hereunder, such substituted or additional Pledgor shall, upon
executing an agreement in the form attached hereto as Schedule E, become a party
hereto and be bound by all the terms and conditions hereof to the same extent as
though such Pledgor had originally executed this Agreement and, in the case of a
substitution, in lieu of the Pledgor being replaced. No such substitution shall
be effective absent the written consent of Agent and the Lenders nor shall it in
any manner affect the obligations of the other Pledgors hereunder.
(h) THE AGENT AND THE PLEDGORS AGREE THAT ALL DISPUTES AMONG THEM
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL
COURTS LOCATED IN XXXX COUNTY, ILLINOIS, BUT EACH OF THE AGENT AND THE PLEDGORS
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF XXXX COUNTY, ILLINOIS. EACH OF THE PLEDGORS WAIVES IN ALL
DISPUTES ANY OBJECTION THAT SUCH PLEDGOR MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE OR ANY OBJECTION THAT SUCH PLEDGOR MAY HAVE THAT ANY
OTHER PARTY HAS NOT BEEN JOINED IN SUCH PROCEEDING. EACH OF THE PLEDGORS AGREES
THAT THE AGENT SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH AND ANY OF THE
PLEDGORS OR THEIR COLLATERAL IN A COURT IN ANY LOCATION TO ENABLE THE AGENT TO
REALIZE ON THE COLLATERAL, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF THE AGENT, WHETHER OR NOT PROCEEDING SEPARATELY AGAINST ANY PLEDGOR
AND ITS PROPERTY OR JOINTLY AGAINST THE BORROWERS AND ANY ONE OR MORE OF THE
PLEDGORS AND THEIR PROPERTY. EACH OF THE PLEDGORS WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE AGENT HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS PARAGRAPH.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered as of the date first above written.
PLEDGORS:
XXXXXX INDUSTRIAL GROUP, INC.
By
Its____________________________________
XXXXXX METALCRAFT CO.
By
Its___________________________________
XXXXXX METALCRAFT CO. OF NORTH
CAROLINA
By
Its____________________________________
Acknowledged and agreed to as of the date first above written.
XXXXXX TRUST AND SAVINGS BANK, as
Agent as aforesaid for the Lenders
By
Its:___________________________________
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