CANADIAN PLEDGE AGREEMENT
Exhibit 10.7
EXECUTION COPY
CANADIAN PLEDGE AGREEMENT, dated as of October 13, 2010 (this “Agreement”), among
GENTEK BUILDING PRODUCTS, INC., a Delaware company (the “Pledgor”), and UBS AG, STAMFORD
BRANCH, as US collateral agent for the Secured Parties (as defined below) (in such capacity,
together with its successors in such capacity, the “US Collateral Agent”).
W I T N E S S E T H:
WHEREAS, Holdings and the Borrowers have entered into a Revolving Credit Agreement, dated as
of October 13, 2010 (the “Credit Agreement”), with the banks, financial institutions and
other institutional lenders and investors from time to time parties thereto (each individually a
“Lender” and collectively, the “Lenders”), UBS AG, STAMFORD BRANCH, as US
Administrative Agent, US Collateral Agent, and a Letter of Credit Issuer, UBS AG, CANADA BRANCH, as
Canadian Administrative Agent and Canadian Collateral Agent, XXXXX FARGO CAPITAL FINANCE, LLC, as
Co-Collateral Agent and a Letter of Credit Issuer, DEUTSCHE BANK AG NEW YORK BRANCH, as a Letter of
Credit Issuer, DEUTSCHE BANK AG CANADA BRANCH, as a Letter of Credit Issuer and UBS LOAN FINANCE
LLC, as Swingline Lender, pursuant to which the Lenders have severally agreed to make loans to the
Borrowers and the Letter of Credit Issuers have agreed to issue letters of credit for the account
of the Borrowers upon the terms and subject to the conditions set forth therein, (2) one or more
Cash Management Banks may from time to time provide Cash Management Services pursuant to Secured
Cash Management Agreements to any Credit Party and (3) one or more Hedge Banks may from time to
time enter into Secured Hedging Agreements with any Credit Party (clauses (1), (2) and (3)
collectively, the “Extensions of Credit”);
WHEREAS, pursuant to the US Guarantee, dated as of October 13, 2010 (the “US
Guarantee”), the Pledgor and the other guarantor parties thereto (other than in respect of
their own obligations) have agreed to guarantee to the US Collateral Agent, for the benefit of the
Secured Parties, the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations;
WHEREAS, pursuant to the Canadian Guarantee, dated as of October 13, 2010 (the “Canadian
Guarantee”), each of the Canadian Borrowers (other than in respect of their own obligations)
and their subsidiaries party thereto have agreed to guarantee to the Canadian Collateral Agent, for
the benefit of the Secured Parties, the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the Canadian Obligations;
WHEREAS, the Pledgor acknowledges that it will derive substantial direct and indirect benefit
from the making of the Extensions of Credit and has agreed to secure its obligations with respect
thereto pursuant to this Agreement;
WHEREAS, it is a condition precedent to the obligations of the Lenders and the Letter of
Credit Issuers to make their respective Extensions of Credit to the Borrowers under the
Credit Agreement that the Pledgor shall have executed and delivered this Agreement to the US
Collateral Agent for the benefit of the Secured Parties; and
WHEREAS, the Pledgor is the legal and beneficial owner of the Capital Stock described in
Schedule 2 and issued by the entities named therein (such Capital Stock is collectively referred to
herein as the “Pledged Shares”).
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and to induce the Agents,
the Lenders and the Letter of Credit Issuers to enter into the Credit Agreement and to induce the
Lenders and the Letter of Credit Issuers to make their respective Extensions of Credit to the
Borrowers under the Credit Agreement, to induce one or more Cash Management Banks to provide Cash
Management Services pursuant to Secured Cash Management Agreements to any Credit Party and to
induce one or more Hedge Banks to enter into Secured Hedging Agreements with each Credit Party, the
Pledgor hereby agrees with the US Collateral Agent, for the benefit of the Secured Parties, as
follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
(including terms used in the preamble and the recitals) shall have the meanings given to them in
the Credit Agreement and all terms defined in the PPSA from time to time in effect or in the
Securities Transfer Act (Ontario) from time to time in effect (together with any regulations
thereunder, the “STA”) and not defined herein or in the Credit Agreement shall have the meanings
specified therein. References to sections of the PPSA or the STA shall be construed to also refer
to any successor sections.
(b) The rules of construction and other interpretive provisions specified in Sections 1.2,
1.5, 1.6 and 1.7 of the Credit Agreement shall apply to this Agreement, including terms defined in
the preamble and recitals hereto.
(c) The following terms shall have the following meanings:
“Agreement” shall have the meaning assigned to such term in the preamble hereto.
“Canadian Guarantee” shall have the meaning assigned to such term in the recitals
hereto.
“Collateral” shall have the meaning assigned to such term in Section 2 hereto.
“Company” shall have the meaning assigned to such term in the preamble hereto.
“Credit Agreement” shall have the meaning assigned to such term in the recitals
hereto.
“Extensions of Credit” shall have the meaning assigned to such term in the recitals
hereto.
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“Holdings” shall have the meaning assigned to such term in the preamble hereto.
“Lenders” shall have the meaning assigned to such term in the recitals hereto.
“Pledged Shares” shall have the meaning assigned to such term in the recitals hereto.
“Pledgor” shall have the meaning assigned to such term in the preamble hereto.
“PPSA” shall mean the Personal Property Security Act (Ontario), the Civil Code of
Québec or any other applicable Canadian federal, provincial or territorial statute pertaining to
the granting, perfecting, priority or ranking of security interests, liens, hypothecs on personal
property, and any successor statutes, together with any regulations thereunder, in each case as in
effect from time to time. References to sections of the PPSA shall be construed to also refer to
any successor sections.
“Secured Debt Documents” shall mean, collectively, the Credit Documents, each Secured
Cash Management Agreement entered into with a Cash Management Bank and each Secured Hedging
Agreement entered into with a Hedge Bank.
“Securities Act” shall have the meaning assigned to such term in Section 12(e).
“Termination Date” shall mean the date on which all Obligations are paid in full in
cash (other than Cash Management Obligations under Secured Cash Management Agreements, Hedging
Obligations under Secured Hedging Agreements or contingent indemnification obligations not then due
and payable) and the Total Revolving Credit Commitments and all Letters of Credit are terminated
(other than Letters of Credit that have been Cash Collateralized in the manner set forth in Section
3.7 of the Credit Agreement following the termination of the Total Revolving Credit Commitments).
“US Collateral Agent” shall have the meaning assigned to such term in the preamble
hereto.
“US Guarantee” shall have the meaning assigned to such term in the recitals hereto.
(d) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to the Pledgor, shall refer to the Pledgor’s Collateral or the relevant part
thereof.
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2. Grant of Security. As security for the prompt and complete payment when due
(whether at the stated maturity, by acceleration or otherwise) of the Obligations, the Pledgor
hereby transfers, assigns and pledges to the US Collateral Agent, for the benefit of the Secured
Parties, and hereby grants to the US Collateral Agent, for the benefit of the Secured Parties, a
security interest in and continuing lien on all of the Pledgor’s right, title and interest in and
to all of the following, (collectively, the “Collateral”):
(a) the Pledged Shares held by the Pledgor and the certificates, if any, representing
such Pledged Shares and any interest of the Pledgor, including all interests documented in
the entries on the books of the issuer of the Pledged Shares or any financial intermediary
pertaining to the Pledged Shares and all dividends, cash, warrants, rights, instruments and
other property or proceeds from time to time received, receivable or otherwise distributed
in respect of, or in exchange for, any or all of the Pledged Shares; provided that
the Pledged Shares under this Agreement shall not include any Excluded Capital Stock and in
no event shall the US Obligations be secured or purported to be secured by Pledged Shares of
any Capital Stock of any Foreign Subsidiary or of any Domestic Subsidiary treated as a
disregarded entity for US federal income tax purposes if substantially all of its assets
consist of Capital Stock of one or more Foreign Subsidiaries that are controlled foreign
corporations within the meaning of Section 957 of the Code, that is Voting Stock of such
Subsidiary in excess of 65% of the outstanding Capital Stock of such class;
(b) subject to Section 8, all rights and privileges of the Pledgor with respect to the
securities and other property referred to in clause (a) above; and
(c) to the extent not covered by clauses (a) and (b) above, respectively, all proceeds
of any or all of the foregoing Collateral. For purposes of this Agreement, the term
“proceeds” includes whatever is receivable or received when Collateral or proceeds are sold,
exchanged, collected or otherwise disposed of, whether such disposition is voluntary or
involuntary, and includes proceeds of any indemnity or guarantee payable to the Pledgor or
the US Collateral Agent from time to time with respect to any of the Collateral.
TO HAVE AND TO HOLD the Collateral, together with all right, title, interest, powers,
privileges and preferences pertaining or incidental thereto, unto the US Collateral Agent, for the
benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions
hereinafter set forth.
3. Security for the Obligations. This Agreement secures the full and prompt payment
when due (whether at stated maturity, by acceleration or otherwise) of, and the performance of, all
the Obligations; provided that in no event shall the US Obligations be secured or purported
to be secured by Pledged Shares of any Capital Stock of any Foreign Subsidiary or of any Domestic
Subsidiary treated as a disregarded entity for US federal income tax purposes if substantially all
of its assets consist of Capital Stock of one or more Foreign Subsidiaries that are controlled
foreign corporations within the meaning of Section 957 of the Code, that is Voting Stock of such
Subsidiary in excess of 65% of the outstanding Capital Stock of such class. Without limiting the
generality of the foregoing, this Agreement secures the payment of all amounts that constitute part
of the Obligations and would be owed to the US Collateral Agent or the Secured Parties under the
Secured Debt Documents but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving the Pledgor;
provided that in no event shall the US Obligations be secured or purported to be secured by
Pledged Shares of any Capital Stock of any Foreign Subsidiary or of any Domestic Subsidiary treated
as a disregarded entity for US federal income tax purposes if substantially all of its assets
consist of Capital Stock of one or more Foreign
Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the
Code, that is Voting Stock of such Subsidiary in excess of 65% of the outstanding Capital Stock of
such class.
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4. Delivery of the Collateral and Filing.
(a) The Pledgor represents and warrants that all certificates or instruments, if any,
representing or evidencing the Collateral in existence on the date hereof have been delivered to
the US Collateral Agent (or its non-fiduciary agent or designee) in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or assignment in blank. All
certificates or instruments, if any, representing or evidencing the Collateral created after the
date hereof shall be promptly (but in any event within thirty days after creation thereof)
delivered to and held by or on behalf of the US Collateral Agent (or its non-fiduciary agent or
designee) pursuant hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank. The US Collateral
Agent shall have the right, at any time after the occurrence and during the continuation of an
Event of Default and without notice to the Pledgor (except as otherwise expressly provided herein),
to transfer to or to register in the name of the US Collateral Agent or any of its nominees any or
all of the Pledged Shares. After the occurrence and during the continuance of an Event of Default,
the Pledgor will promptly give to the US Collateral Agent copies of any notices or other
communications received by it with respect to Pledged Shares registered in the name of the Pledgor.
After the occurrence and during the continuance of an Event of Default, the US Collateral Agent
shall have the right to exchange the certificates representing Pledged Shares for certificates of
smaller or larger denominations for any purpose consistent with this Agreement. Each delivery of
Collateral shall be accompanied by a schedule describing the securities theretofore and then being
pledged hereunder, which shall be attached hereto as part of Schedule 2 and made a part hereof;
provided that the failure to attach any such schedule hereto shall not affect the validity
of such pledge of such securities. Each schedule so delivered shall supersede any prior schedules
so delivered.
(b) The Pledgor hereby irrevocably authorizes the US Collateral Agent at any time and from
time to time to file in any relevant jurisdiction any initial financing statements with respect to
the Collateral or any part thereof and amendments thereto and renewals thereof that contain the
information required by the PPSA for the filing of any financing statement or amendment or renewal.
Such financing statements may describe the Collateral in the same manner as described herein or
may contain an indication or description of collateral that describes such property in any other
manner such as “all assets” or “all personal property, whether now owned or hereafter acquired” of
the Pledgor or words of similar effect as being of an equal or lesser scope or with greater detail.
The Pledgor agrees to provide such information to the US Collateral Agent promptly after any such
request. The Pledgor agrees to furnish the US Collateral Agent with written notice as required by
Section 4.2 of the US Security Agreement.
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5. Representations and Warranties. The Pledgor represents and warrants to the US
Collateral Agent and each other Secured Party that:
(a) Schedule 2 hereto (i) correctly represents as of the date hereof the issuer, the
issuer’s jurisdiction of formation, the certificate number, if any, the Pledgor and the
record and beneficial owner, the number and class and the percentage of the issued and
outstanding Capital Stock of such class of all Pledged Shares and (ii) together with the
comparable schedule to each supplement hereto, includes, all Capital Stock, required to be
pledged pursuant to Section 9.11(a) of the Credit Agreement. Except as set forth on
Schedule 2 and except for Excluded Capital Stock, the Pledged Shares represent all of the
issued and outstanding Capital Stock of each class of Capital Stock in the issuer on the
date hereof.
(b) The Pledgor is the legal and beneficial owner of the Collateral pledged or assigned
by the Pledgor hereunder free and clear of any Lien, except for the Liens created by this
Agreement and the Credit Documents.
(c) As of the date of this Agreement, the Pledged Shares pledged by the Pledgor
hereunder have been duly authorized and validly issued and, in the case of Pledged Shares
issued by a corporation, are fully paid and non-assessable.
(d) Except for restrictions and limitations imposed by the Credit Documents or
securities laws generally and except as described in the Perfection Certificate, the
Collateral is freely transferable and assignable, and none of the Collateral is subject to
any option, right of first refusal, shareholders agreement, charter or by-law provisions or
contractual restriction of any nature that might prohibit, impair, delay or otherwise affect
the pledge of such Collateral hereunder, the sale or disposition thereof pursuant hereto or
the exercise by the US Collateral Agent of rights and remedies hereunder.
(e) No consent or approval of any Governmental Authority, any securities exchange or
any other Person was or is necessary to the validity of the pledge effected hereby (other
than such as have been obtained and are in full force and effect).
(f) The execution and delivery by the Pledgor of this Agreement and the pledge of the
Collateral pledged by the Pledgor hereunder pursuant hereto create a valid and enforceable
security interest in such Collateral and (i) in the case of certificates or instruments
representing or evidencing the Collateral, upon the earlier of (x) delivery of such
Collateral and any necessary endorsements to the extent necessary to the US Collateral Agent
(or its non-fiduciary agent or designee) in accordance with this Agreement and (y) the
filing of financing statements naming the Pledgor as “debtor” and the US Collateral Agent as
“secured party” in the applicable filing offices, and (ii) in the case of all other
Collateral which is capable of being perfected by the filing of financing statements upon
the filing of financing statements naming the Pledgor as “debtor” and the US Collateral
Agent as “secured party” and describing the Collateral in the applicable filing offices,
shall create a perfected security interest in such Collateral, securing the payment of the
Obligations, in favor of the US Collateral Agent, for the benefit of the Secured Parties,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors’ rights generally and general
principles of equity (whether considered in a proceeding in equity or law).
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(g) The pledge effected hereby is effective to vest in the US Collateral Agent, for the
benefit of the Secured Parties, the rights of the US Collateral Agent in the Collateral as
set forth herein.
(h) The Pledgor has full power, authority and legal right to pledge all the Collateral
pledged by the Pledgor pursuant to this Agreement and this Agreement constitutes a legal,
valid and binding obligation of the Pledgor (in the case of the Capital Stock of Foreign
Subsidiaries, to the extent the creation of such security interest in the Capital Stock of
Foreign Subsidiaries other than a Subsidiary that is organized under the Applicable Laws of
a jurisdiction in Canada is governed by the PPSA), enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors’ rights generally and general
principles of equity (whether considered in a proceeding in equity or law).
(i) The issuers listed on Schedule 2 are the only Subsidiaries of the Pledgor as of the
Closing Date.
6. [Reserved]
7. Further Assurances. Subject to any limitations set forth in the Credit Documents,
the Pledgor agrees that at any time and from time to time, at the expense of the Pledgor, it will
execute or otherwise authorize the filing of any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the filing and recording
of financing statements, deeds of trust and other documents), which may be required under any
Applicable Law, or which the US Collateral Agent may reasonably request, in order (x) to perfect
and protect any pledge, assignment or security interest granted or purported to be granted hereby
(including the priority thereof) or (y) to enable the US Collateral Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral.
8. Voting Rights; Dividends and Distributions; Etc.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral or any part thereof for any purpose not prohibited by
the terms of this Agreement or the other Secured Debt Documents; provided that such
voting and other rights shall not be exercised in any manner that could materially and
adversely affect the rights inuring to a holder of any Pledged Shares or the rights and
remedies of any of the US Collateral Agent or the other Secured Parties under this
Agreement, the Credit Agreement or any other Credit Document or the ability of the Secured
Parties to exercise the same.
(ii) The US Collateral Agent shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as the Pledgor may
reasonably request for the purpose of enabling the Pledgor to exercise the voting and other
rights that it is entitled to exercise pursuant to paragraph (i) above.
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(b) Subject to paragraph (c) below, the Pledgor shall be entitled to receive and retain and
use, free and clear of the Lien of this Agreement, any and all dividends, distributions,
redemptions, principal and interest made or paid in respect of the Collateral to the extent not
prohibited by any Secured Debt Document; provided, however, that any and all
noncash dividends, interest, principal or other distributions that would constitute Pledged Shares,
whether resulting from a subdivision, combination or reclassification of the outstanding Capital
Stock of the issuer of any Pledged Shares or received in exchange for Pledged Shares or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation, amalgamation,
acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be,
and shall be forthwith delivered to the US Collateral Agent to hold as, Collateral and shall, if
received by the Pledgor, be received in trust for the benefit of the US Collateral Agent, be
segregated from the other property or funds of the Pledgor and be forthwith delivered to the US
Collateral Agent as Collateral in the same form as so received (with any necessary endorsement).
(c) Upon written notice to the Pledgor by the US Collateral Agent following the occurrence and
during the continuation of an Event of Default:
(i) all rights of the Pledgor to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise pursuant to Section
8(a)(i) shall cease, and all such rights shall thereupon become vested in the US Collateral
Agent, which shall thereupon have the sole right to exercise or refrain from exercising such
voting and other consensual rights during the continuation of such Event of Default;
provided that, unless otherwise directed by the Required Lenders, the US Collateral
Agent shall have the right from time to time following the occurrence and during the
continuation of an Event of Default to permit the Pledgor to exercise such rights. After
all Events of Default have been cured or waived or otherwise cease to be continuing and the
Company has delivered to the US Collateral Agent a certificate to that effect, the Pledgor
will have the right to exercise the voting and consensual rights that the Pledgor would
otherwise be entitled to exercise pursuant to the terms of Section 8(a)(i) (and the
obligations of the US Collateral Agent under Section 8(a)(ii) shall be reinstated);
(ii) all rights of the Pledgor to receive the dividends, distributions and principal
and interest payments that the Pledgor would otherwise be authorized to receive and retain
pursuant to Section 8(b) shall cease, and all such rights shall thereupon become vested in
the US Collateral Agent, which shall thereupon have the sole right to receive and hold as
Collateral such dividends, distributions and principal and interest payments during the
continuation of such Event of Default. After all Events of Default have been cured or
waived or otherwise cease to be continuing and the Company has delivered to the US
Collateral Agent a certificate to that effect, the US Collateral Agent shall repay to the
Pledgor (without interest) and the Pledgor shall be entitled to receive, retain and use all
dividends, distributions and principal and interest payments that the Pledgor would
otherwise be permitted to receive, retain and use pursuant to the terms of Section 8(b);
(iii) all dividends, distributions and principal and interest payments that are
received by the Pledgor contrary to the provisions of Section 8(b) shall be received in
trust for the benefit of the US Collateral Agent, shall be segregated from other property or
funds of the Pledgor and shall forthwith be delivered to the US Collateral Agent as
Collateral in the same form as so received (with any necessary endorsements); and
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(iv) in order to permit the US Collateral Agent to receive all dividends, distributions
and principal and interest payments to which it may be entitled under Section 8(b) above, to
exercise the voting and other consensual rights that it may be entitled to exercise pursuant
to Section 8(c)(i), and to receive all dividends, distributions and principal and interest
payments that it may be entitled to under Sections 8(c)(ii) and (c)(iii), the Pledgor shall
from time to time execute and deliver to the US Collateral Agent, appropriate proxies,
dividend payment orders and other instruments as the US Collateral Agent may reasonably
request.
(d) Any notice given by the US Collateral Agent to the Pledgor suspending their rights under
paragraph (c) of this Section 8 (i) may be given by telephone if promptly confirmed in writing,
(ii) may be given to the Pledgor at the same or different times and (iii) may suspend the rights of
the Pledgor under paragraph (a)(i) or paragraph (b) of this Section 8 in part without suspending
all such rights (as specified by the US Collateral Agent in its sole and absolute discretion) and
without waiving or otherwise affecting the US Collateral Agent’s rights to give additional notices
from time to time suspending other rights so long as an Event of Default has occurred and is
continuing.
9. Transfers and Other Liens; Additional Collateral; Etc. The Pledgor shall:
(a) not (i) except as expressly permitted by the Credit Agreement (including pursuant
to waivers and consents thereunder), sell or otherwise Dispose of, or grant any option or
warrant with respect to, any of the Collateral or (ii) create or suffer to exist any
consensual Lien upon or with respect to any of the Collateral, except for the Lien created
by this Agreement and the other Security Documents; provided that in the event the
Pledgor sells or otherwise disposes of assets as permitted by the Credit Agreement
(including pursuant to waivers and consents thereunder) and such assets are or include any
of the Collateral, the US Collateral Agent shall release such Collateral to the Pledgor free
and clear of the Lien created by this Agreement concurrently with the consummation of such
sale in accordance with Section 13.17 of the Credit Agreement and with Section 14 hereof;
and
(b) defend its and the US Collateral Agent’s title or interest in and to all the
Collateral (and in the Proceeds thereof) against any and all Liens (other than the Lien
created by this Agreement), however arising, and any and all Persons whomsoever and, subject
to Section 13.17 of the Credit Agreement and Section 14 hereof, to maintain and preserve
the Lien and security interest created by this Agreement until the Termination Date.
10. US Collateral Agent Appointed Attorney-in-Fact. The Pledgor hereby appoints,
which appointment is irrevocable and coupled with an interest, the US Collateral Agent as 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, to take any action and to execute any instrument, in each case
after the occurrence and during the continuation of an Event of Default, that the US
Collateral Agent may deem reasonably necessary or advisable to accomplish the purposes of this
Agreement, including to receive, endorse and collect all instruments made payable to the Pledgor
representing any dividend, distribution or principal or interest payment in respect of the
Collateral or any part thereof and to give full discharge for the same.
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11. The US Collateral Agent’s Duties. The powers conferred on the US Collateral Agent
hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon
it to exercise any such powers. Except for the safe custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder, the US Collateral Agent shall have
no duty as to any Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any Pledged Shares,
whether or not the US Collateral Agent or any other Secured Party has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. The US Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any Collateral in its
possession if such Collateral is accorded treatment substantially equal to that which the US
Collateral Agent accords its own property.
12. Remedies. If any Event of Default shall have occurred and be continuing and:
(a) The US Collateral Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all the rights
and remedies of a secured party upon default under the PPSA, any other statute or otherwise
at law or in equity and also may without notice, except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale, at any
exchange broker’s board or at any of the US Collateral Agent’s offices or elsewhere, for
cash, on credit or for future delivery, at such price or prices and upon such other terms as
the US Collateral Agent may deem commercially reasonable irrespective of the impact of any
such sales on the market price of the Collateral. The US Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers of Collateral to Persons who will represent and agree that they are
purchasing the Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and, upon consummation of any such sale, the US Collateral
Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of the Pledgor, and the Pledgor
hereby waives (to the extent permitted by Applicable Law) all rights of redemption, stay
and/or appraisal that it now has or may at any time in the future have under any rule of law
or statute now existing or hereafter enacted. The US Collateral Agent or any other Secured
Party shall have the right upon any such public sale, and, to the extent permitted by
Applicable Law, upon any such private sale, to purchase all or any part of the Collateral so
sold, and the US Collateral Agent or such other Secured Party may, subject to (x) the
satisfaction in full of all payments due pursuant to Section 12(b)(i) and (y) the
satisfaction of the Obligations in accordance with the priorities set forth in Section
12(b), pay the purchase price by crediting the amount thereof against the Obligations;
provided that in no event shall there be applied towards the satisfaction of the US
Obligations
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proceeds of any such sale of the Capital Stock of any Foreign Subsidiary, or of any
Domestic Subsidiary treated as a disregarded entity for US federal income tax purposes if
substantially all of its assets consist of Capital Stock of one or more Foreign Subsidiaries
that are controlled foreign corporations within the meaning of Section 957 of the Code (in
either case securing or purporting to secure the US Obligations), derived from Voting Stock
of such Subsidiary in excess of 65% of the outstanding Capital Stock of such class. The
Pledgor agrees that, to the extent notice of sale shall be required by law, at least ten
days’ notice to the Pledgor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The US Collateral
Agent shall not be obligated to make any sale of Collateral regardless of notice of sale
having been given. The US Collateral Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. To the extent
permitted by Applicable Law, the Pledgor hereby waives any claim against the US Collateral
Agent arising by reason of the fact that the price at which any Collateral may have been
sold at such a private sale was less than the price that might have been obtained at a
public sale, even if the US Collateral Agent accepts the first offer received and does not
offer such Collateral to more than one offeree. As an alternative to exercising the power
of sale herein conferred upon it, the US Collateral Agent may proceed by a suit or suits at
law or in equity to foreclose this Agreement and to sell the Collateral or any portion
thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction
or pursuant to a proceeding by a court-appointed receiver.
(b) The US Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral at any time after receipt in accordance with the priority set forth in Section
5.4 of the US Security Agreement; provided that in no event shall there be applied
towards the satisfaction of the US Obligations proceeds of any such collection or sale of
the Capital Stock of any Foreign Subsidiary, or of any Domestic Subsidiary treated as a
disregarded entity for US federal income tax purposes if substantially all of its assets
consist of Capital Stock of one or more Foreign Subsidiaries that are controlled foreign
corporations within the meaning of Section 957 of the Code (in either case securing or
purporting to secure the US Obligations), derived from Voting Stock of such Subsidiary in
excess of 65% of the outstanding Capital Stock of such class.
Upon any sale of the Collateral by the US Collateral Agent (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt of the US
Collateral Agent or of the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid over to the US
Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(c) The US Collateral Agent may exercise any and all rights and remedies of the Pledgor
in respect of the Collateral.
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(d) All payments received by the Pledgor after the occurrence and during the
continuation of an Event of Default in respect of the Collateral shall be received in trust
for the benefit of the US Collateral Agent, shall be segregated from other property or
funds of the Pledgor and shall be forthwith delivered to the US Collateral Agent (or its
non-fiduciary agent or designee) as Collateral in the same form as so received (with any
necessary endorsement).
(e) If the US Collateral Agent shall determine to exercise its right to sell all or any
of the Pledged Shares pursuant to this Section 12, the Pledgor recognizes that the US
Collateral Agent may be unable to effect a public sale of any or all of the Pledged Shares,
by reason of certain prohibitions contained in the Securities Act of any applicable Canadian
jurisdiction, as from time to time amended (a “Securities Act”) or otherwise, and may be
compelled to resort to one or more private sales thereof to a restricted group of purchasers
which will be obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices and other
terms less favorable than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The US Collateral Agent shall be under no obligation to
delay a sale of any of the Pledged Shares for the period of time necessary to permit the
issuer thereof to register such securities for public sale under any such Securities Act, or
under other applicable laws, even if such issuer would agree to do so.
(f) If the US Collateral Agent determines to exercise its right to sell any or all of
the Collateral, upon written request, the Pledgor shall, from time to time, furnish to the
US Collateral Agent all such information as the US Collateral Agent may reasonably request
in order to determine the number of shares and other instruments included in the Collateral
which may be sold by the US Collateral Agent as exempt transactions under the Securities Act
and rules of the SEC, as the same are from time to time in effect.
(g) The US Collateral Agent may seek the appointment of a receiver, receiver-manager or
keeper (a “Receiver”) under the laws of Canada or any Province thereof to take possession of
all or any portion of the Collateral of the Pledgor or to operate same and, to the maximum
extent permitted by law, may seek the appointment of such a receiver without the requirement
of prior notice or a hearing. Any such Receiver shall, so far as concerns responsibility
for his/her acts, be deemed agent of the Pledgor and not the US Collateral Agent and the
Secured Parties, and the US Collateral Agent and the Secured Parties shall not be in any way
responsible for any misconduct, negligence or non-feasance on the part of any such Receiver,
his/her servants or employees other than for gross negligence or wilful misconduct. Subject
to the provisions of the instrument appointing him/her, any such Receiver shall have power
to take possession of Collateral of the Pledgor, to preserve Collateral of the Pledgor or
its value, to carry on or concur in carrying on all or any part of the business of the
Pledgor and to sell, lease, license or otherwise dispose of or concur in selling, leasing,
licensing or otherwise disposing of Collateral of the Pledgor. To facilitate the forgoing
powers, any such Receiver may, to the exclusion of all others, including the Pledgor, enter
upon, use and occupy all premises owned or occupied by the Pledgor wherein Collateral of the
Pledgor may be situated, maintain Collateral of the Pledgor upon such premises, borrow money
on its own behalf
or on behalf of the Secured Parties on a secured or unsecured basis and use Collateral
of the Pledgor directly in carrying on the Pledgor’s business or as security for loans or
advances to enable the Receiver to carry on the Pledgor’s business or otherwise, as such
Receiver shall, in its discretion, determine. Except as may be otherwise directed by US
Collateral Agent, all money received from time to time by such Receiver in carrying out
his/her appointment shall be received in trust for and paid over to US Collateral Agent.
Every such Receiver may, in the discretion of the US Collateral Agent, be vested with all or
any of the rights and powers of the US Collateral Agent and the Secured Parties. The US
Collateral Agent may, either directly or through its nominees, exercise any or all powers
and rights given to a receiver by virtue of the foregoing provisions of this paragraph.
-12-
13. Amendments, etc. with Respect to the Obligations; Waiver of Rights. Except for
the termination of the Pledgor’s Obligations hereunder as expressly provided in Section 14, the
Pledgor shall remain obligated hereunder notwithstanding that, without any reservation of rights
against the Pledgor and without notice to or further assent by the Pledgor, (a) any demand for
payment of any of the Obligations made by the US Collateral Agent or any other Secured Party may be
rescinded by such party and any of the Obligations continued, (b) the Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or released by the US
Collateral Agent or any other Secured Party, (c) the Secured Debt Documents and any other documents
executed and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the terms of the applicable Secured Debt
Document, and (d) any collateral security, guarantee or right of offset at any time held by the US
Collateral Agent or any other Secured Party for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. Neither the US Collateral Agent nor any other Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Obligations or for this Agreement or any property subject thereto. When
making any demand hereunder against the Pledgor, the US Collateral Agent or any other Secured Party
may, but shall be under no obligation to, make a similar demand on the US Borrowers (to the extent
such demand is in respect of any Obligations owing by the US Borrowers) or any US Pledgor (as
defined in the US Pledge Agreement), and any failure by the US Collateral Agent or any other
Secured Party to make any such demand or to collect any payments from the US Borrowers or any US
Pledgor or any release of the US Borrowers or any US Pledgor shall not relieve the Pledgor in
respect of which a demand or collection is not made or the Pledgor not so released of its several
obligations or liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the US Collateral Agent or any other Secured Party
against the Pledgor. For the purposes hereof “demand” shall include the commencement and
continuation of any legal proceedings.
14. Continuing Security Interest; Assignments Under the Secured Debt Documents;
Release.
(a) This Agreement and the security interest granted hereunder shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Pledgor and the successors and assigns thereof, and shall inure to the benefit of the US
Collateral Agent and the other Secured Parties and their respective successors, indorsees,
transferees and assigns, until the Termination Date, notwithstanding the from time to time prior to
the Termination Date the Pledgor may be free from any Obligations.
-13-
(b) The Pledgor shall automatically be released from its obligations hereunder and the pledge
of the Pledgor shall be automatically released upon the consummation of any transaction permitted
by the Credit Agreement as a result of which the Pledgor ceases to be a Restricted Subsidiary of
the Company or otherwise becomes an Excluded Subsidiary; provided that the Required Lenders shall
have consented to such transaction (to the extent such consent is required by the Credit Agreement)
and the terms of such consent did not provide otherwise.
(c) The obligations created hereby of the Pledgor with respect to Collateral shall be
automatically released and such Collateral sold free and clear of the Lien and security interests
created hereby (i) upon any Disposition by the Pledgor of any Collateral that is (i) permitted
under the Credit Agreement (other than to the Company or any US Subsidiary Pledgor) or (ii) upon
the effectiveness of any written consent to the release of the security interests granted hereby in
any Collateral pursuant to Section 13.1 of the Credit Agreement.
(d) In connection with any termination or release pursuant to paragraph (a), (b), or (c), the
US Collateral Agent shall execute and deliver to the Pledgor or authorize the filing of, at the
Pledgor’s expense, all documents that the Pledgor shall reasonably request to evidence such
termination or release provided, however, that with respect to the release of any
item of Collateral pursuant to Section 14(c)(i) in connection with any request of evidence of
termination or release made of the US Collateral Agent, the US Collateral Agent may request that
the Pledgor deliver a certificate of an Authorized Officer to the effect that the sale or transfer
transaction is in compliance with the Credit Documents. Any execution and delivery of documents
pursuant to this Section 14 shall be without recourse to or warranty by the US Collateral Agent.
15. Reinstatement. This Agreement shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the US Collateral Agent or any other Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the US
Borrowers, any US Pledgor, or the Pledgor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the US Borrowers, any US Pledgor,
the Pledgor or any substantial part of its property, or otherwise, all as though such payments had
not been made.
16. Notices. All notices, requests and demands pursuant hereto shall be made in
accordance with Section 13.2 of the Credit Agreement. All communications and notices hereunder to
the Pledgor shall be given to it in care of the Company at the Company’s address set forth in
Section 13.2 of the Credit Agreement.
17. Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by facsimile or other electronic
transmission (i.e., a “pdf” or “tif”)), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the US Collateral Agent and the Company.
-14-
18. Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
19. Integration. This Agreement represents the agreement of the Pledgor with respect
to the subject matter hereof and there are no promises, undertakings, representations or warranties
by the US Collateral Agent or any other Secured Party relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Secured Debt Documents.
20. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Pledgor and the US Collateral
Agent in accordance with Section 13.1 of the Credit Agreement.
(b) Neither the US Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument pursuant to Section 20(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event
of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the US Collateral Agent or any other Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the US Collateral
Agent or any other Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that the US Collateral Agent or such other Secured Party
would otherwise have on any future occasion.
(c) The rights, remedies, powers and privileges herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.
21. Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
22. Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, except
that the Pledgor may not assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the US Collateral Agent,
except pursuant to a transaction expressly permitted by the Credit Agreement.
-15-
23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. Submission to Jurisdiction; Waivers. The Pledgor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement, and the other Credit Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive jurisdiction of a
court of competent jurisdiction in the Province of Ontario;
(b) consents that any such action or proceeding shall be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Pledgor at its address referred to in Section 16 or at such
other address of which the US Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right of the US Collateral Agent or any
other Secured Party to effect service of process in any other manner permitted by Applicable
Law or shall limit the right of the US Collateral Agent or any other Secured Party to xxx in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section 24 any special,
exemplary, punitive or consequential damages.
25. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
[Signature Pages Follow]
-16-
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
| GENTEK BUILDING PRODUCTS, INC., as a Pledgor |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | XXXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
[Gentek Building Products, Inc. — Canadian Pledge Agreement]
| UBS AG, STAMFORD BRANCH, as US Collateral Agent |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director Banking Products Services. US | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director Banking Products Services. US | |||
[Gentek Building Products, Inc. — Canadian Pledge Agreement]
SCHEDULE 1
TO THE CANADIAN
PLEDGE AGREEMENT
TO THE CANADIAN
PLEDGE AGREEMENT
PLEDGED SHARES1
| Percentage | ||||||||||||||||
| of Issued | ||||||||||||||||
| Issuer’s | Class of | Certificate | and | |||||||||||||
| jurisdiction | Equity | No(s), if | Number of | Outstanding | ||||||||||||
| Pledgor | Issuer | of formation | Interest | any | Units | Units | ||||||||||
Gentek Building Products, Inc. |
Associated Materials Canada Limited | Ontario | Common Shares | C 009 | 65 | 65 | % | |||||||||
Gentek Building Products, Inc. |
Associated Materials Canada Limited | Ontario | Common Shares | C 010 | 35 | 35 | % | |||||||||
Gentek Building Products, Inc. |
Gentek Canada Holdings Limited | Ontario | Common Shares | X-0 | 000 | 00 | % | |||||||||
Gentek Building Products, Inc. |
Gentek Canada Holdings Limited | Ontario | Common Shares | C-2 | 350 | 35 | % | |||||||||
| 1 | The Pledged Shares of the Pledgor included in this Schedule 1 represent share certificates outstanding as of the date hereof. However, immediately after the Closing (as defined in the Credit Agreement) these outstanding share certificates will be cancelled (on account of being lost) and subsequently reissued with replacement share certificates within the time period required by Schedule 9.17 to the Credit Agreement. |
