PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made and entered into as of
August 7, 1997 by All-American Bottling Corporation, a Delaware corporation,
having its principal office at 15 North Robinson, Oklahoma City, Oklahoma 73102
("Pledgor", or "Borrower"), in favor of Congress Financial Corporation
(Central), an Illinois corporation, having an office at 150 South Wacker Drive,
Suite 2200, Chicago, Illinois 60606, as Lender ("Lender") under the Loan
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Lender and All-American Bottling Corporation, a Delaware
corporation, have entered into that certain Loan and Security Agreement dated
as of August 7, 1997 (as the same has been and may hereafter be amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Loan Agreement"), providing for the extension of credit by Lender to Borrower.
When capitalized and used herein, terms defined in the Loan Agreement and not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement;
WHEREAS, Lender has required that Pledgor (i) pledge to Lender the
Pledged Collateral (as defined herein) and (ii) execute and deliver this
Agreement in order to secure the payment and performance of the Guaranteed
Obligations (as defined in that certain Guarantee entered into by All-American
Bottling Financial Corporation, Browne Bottling Company and Gold Medal Beverage
Corporation, dated as of the date hereof); and
WHEREAS, Pledgor has formed All-American Bottling Financial Corporation,
a Delaware corporation, as its wholly-owned Subsidiary; and
WHEREAS, Pledgor is the owner of the outstanding shares of stock (the
"Pledged Shares") set forth on Schedule I hereto, of each of the Subsidiaries
listed on Schedule I hereto (the "Issuers");
AGREEMENT
NOW THEREFORE, in consideration of the premises and in order to induce
Lender to extend credit to Borrower under the Loan Agreement, Pledgor hereby
agrees with Lender as follows:
SECTION 1. PLEDGE. Pledgor hereby pledges to Lender, and grants to
Lender a continuing first priority and perfected security interest in, the
following (the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, and all products and proceeds of any of the Pledged Shares
including, without limitation, all dividends, cash, instruments,
subscriptions, warrants and any other rights and options and other property
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the Pledged Shares; and
(b) all additional shares of stock of, or equity interest in, any of the
Issuers from time to time acquired by Pledgor in any manner, and the
certificates representing such additional shares (any such additional
shares shall constitute part of the Pledged Shares under and as defined in
this Agreement), and all products and proceeds of any of such additional
Pledged Shares, including, without limitation, all dividends, cash,
instruments, subscriptions, warrants and any other rights and options and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
Pledged Shares.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures the
payment and performance of all Guaranteed Obligations, whether for principal,
interest, fees, expenses or otherwise, and all obligations of Pledgor now or
hereafter existing under this Agreement or any other Financing Agreement (the
Guaranteed Obligations and all such obligations of Pledgor now or hereafter
existing under this Agreement being referred to herein as the "Liabilities").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or
instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Lender 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, all in form and
substance satisfactory to Lender.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants as follows:
(a) The Pledged Shares have been duly authorized and validly issued and
are fully paid and non-assessable.
(b) Pledgor is the legal and beneficial owner of the Pledged Collateral,
free and clear of any lien on the Pledged Collateral except as permitted in
the Loan Agreement.
(c) Upon the delivery to Lender of the Pledged Collateral, the pledge of
the Pledged Collateral pursuant to this Agreement creates a valid and
perfected first priority interest in such Pledged Collateral securing the
payment of the Liabilities for the benefit of Lender, provided the Pledged
Collateral is held in the possession of Lender.
(d) No authorization, approval, or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required
either (i) for the pledge by Pledgor of the Pledged Collateral pursuant to
this Agreement or for the execution, delivery or performance of this
Agreement by Pledgor or (ii) for the exercise by Lender of the voting or
other rights provided for in this Agreement or the remedies in respect of
the Pledged Collateral pursuant to this Agreement (except as may be
required in connection with such disposition by laws affecting the offering
and sale of securities).
(e) Pledgor has full power and authority to enter into this Agreement
and has the right to vote, pledge and grant a security interest in the
Pledged Shares.
(f) This Agreement has been duly authorized, executed and delivered by
Pledgor and constitutes a legal, valid and binding obligation of Pledgor,
enforceable against Pledgor in accordance with its terms, except as such
enforceability may be limited by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or general principles of equity.
(g) The Pledged Shares constitute 100% of the authorized, issued and
outstanding capital stock of the Issuers set forth on Schedule I hereto and
constitute all of the shares of capital stock and voting securities of each
of the Issuers beneficially owned by Pledgor.
(h) Except for the Pledged Shares and the Senior Bonds, there are no
other instruments, certificates, securities or other writings, or any
chattel paper, evidencing or representing any interest in or claim against
Borrower or any Subsidiary of Borrower.
SECTION 5. FURTHER ASSISTANCE. Pledgor agrees that at any time and
from time to time, at the expense of Pledgor, Pledgor will promptly execute and
deliver, or cause to be executed and delivered, all stock powers, note powers,
proxies, assignments, instruments and documents and take all further action,
that is reasonably necessary, at Lender's request, in order to perfect any
security interest granted or purported to be granted hereby or to enable Lender
to exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral and to carry out the provisions and purposes hereof.
SECTION 6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) Until the occurrence of an Event of Default and delivery of notice
to Pledgor by Lender, Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Shares or any
part thereof for any purpose not inconsistent with the terms of this
Agreement, the Loan Agreement or the other Financing Agreements; provided,
however, that Pledgor shall not exercise or shall refrain from exercising
any such right if such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof or be inconsistent with
or violate any provisions of this Agreement, the Loan Agreement or any of
the other Financing Agreements.
(b) So long as no Event of Default shall have occurred and be
continuing, Pledgor shall be entitled to receive all cash dividends paid
from time to time in respect of the Pledged Shares.
(c) Any and all (i) dividends or other distributions and interest or
principal paid or payable in the form of instruments and other property
(other than cash interest and principal payments permitted under Section
6(b) hereof and cash dividends permitted under Section 6(c) hereof)
received, receivable or otherwise distributed in respect of, or in exchange
for, any Pledged Collateral, (ii) dividends and other distributions paid or
payable in cash received, receivable or otherwise distributed in respect of
any Pledged Shares in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus
or paid-in-surplus, and (iii) cash paid, payable or otherwise distributed
in redemption of, or in exchange for or upon the sale of, any Pledged
Shares, shall in each case be delivered forthwith to Lender to hold as
Pledged Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Lender, be segregated from the other property or funds
of Pledgor, and be forthwith delivered to Lender as Pledged Collateral in
the same form as so received (with any necessary endorsement).
(d) Lender shall execute and deliver (or cause to be executed and
delivered) to Pledgor all such proxies and other instruments as Pledgor may
reasonably request for the purpose of enabling Pledgor to exercise the
voting and other rights which it is entitled to exercise pursuant to
Section 6(a) above.
(e) All dividends or other distributions and all interest and principal
payments which are received by Pledgor contrary to the provisions of this
Section 6 shall be received in trust for the benefit of Lender, shall be
segregated from other funds of Pledgor and shall be forthwith paid over to
Lender as Pledged Collateral in the same form as so received (with any
necessary endorsement).
(f) Upon the occurrence and during the continuance of an Event of
Default and notice from Lender to Pledgor, all rights of Pledgor to
exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 6(a) hereof shall cease, and all
such rights shall become vested in Lender which shall thereupon have the
sole right to exercise such voting and other consensual rights.
(h) Upon the occurrence and during the continuance of an Event of
Default, all cash dividends or other distributions payable in respect of
the Pledged Shares shall be paid directly to Lender and, if received by
Pledgor, shall be received in trust for the benefit of Lender, shall be
segregated from other funds of Pledgor, and shall be forthwith paid over to
Lender as Pledged Collateral in the same form as so received (with any
necessary endorsements) and Pledgor's right to receive such cash payments
pursuant to Sections 6(b) and 6(c) hereof shall immediately cease.
SECTION 7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES.
(a) Pledgor agrees that it will not (i) sell or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral without the
prior written consent of Lender, (ii) create or permit to exist any lien upon
or with respect to any of the Pledged Collateral, except for the security
interest granted under this Agreement or (iii) enter into any agreement or
understanding that purports to or may restrict or inhibit Lender's rights or
remedies hereunder, including, without limitation, Lender's right to sell or
otherwise dispose of the Pledged Collateral.
(b) Pledgor agrees that it will pledge and deliver to Lender hereunder,
immediately upon its acquisition (directly or indirectly) thereof, any and all
additional shares of stock or other securities of the Issuers of which Pledgor
may become the beneficial owner after the date hereof.
SECTION 8. LENDER APPOINTED ATTORNEY-IN-FACT. Pledgor hereby appoints
Lender as Pledgor's attorney-in-fact, with full authority in the place and
stead of Pledgor and in the name of Pledgor or otherwise, from time to time in
Lender's discretion to take any action and to execute any instrument which
Lender may deem necessary or advisable to further perfect and protect the
security interest granted hereby, including, without limitation, to receive,
endorse and collect all instruments made payable to Pledgor representing any
dividend, interest or principal payment or other distribution in respect of the
Pledged Collateral or any part thereof and to give full discharge for the same.
SECTION 9. LENDER MAY PERFORM. If Pledgor fails to perform any
agreement contained herein, Lender may itself perform, or cause performance of,
such agreement, and the reasonable expenses of Lender incurred in connection
therewith shall be payable by Pledgor under Section 13 hereof.
SECTION 10. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights and
powers granted to Lender hereunder are being granted in order to preserve and
protect Lender's security interest in and to the Pledged Collateral granted
hereby and shall not be interpreted to, and shall not, impose any duties on
Lender in connection therewith. Lender shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in
its possession if the Pledged Collateral is accorded treatment substantially
equal to that which Lender accords its own property, it being understood that
Lender shall not have any responsibility for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Pledged Collateral, whether or not Lender has or is
deemed to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Pledged Collateral.
SECTION 11. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. Pledgor
represents to Lender that Pledgor has made its own arrangements for keeping
informed of changes or potential changes affecting the Pledged Collateral
(including, but not limited to, rights to convert, rights to subscribe, payment
of dividends, payments of interest and/or principal, reorganization or other
exchanges, tender offers and voting rights), and Pledgor agrees that Lender
shall have no responsibility or liability for informing Pledgor of any such
changes or potential changes or for taking any action or omitting to take any
action with respect thereto. Pledgor covenants that it will not, without the
prior written consent of Lender, sell or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral or create or permit to
exist any lien upon or with respect to any of the Pledged Collateral, except
for liens permitted under the Loan Agreement.
SECTION 12. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing, Lender shall, in addition to all other rights given
by law or by this Agreement, the Loan Agreement, the other Financing
Agreements, or otherwise, have all of the rights and remedies with respect to
the Pledged Collateral of a secured party under the Uniform Commercial Code
("Code") in effect in the State of Illinois at that time and Lender may,
without notice and at its option, transfer or register, and Pledgor shall
register or cause to be registered upon request therefor by Lender, the Pledged
Collateral or any part thereof on the books of the Issuers into the name of
Lender or Lender's nominee(s), indicating that such Pledged Collateral is
subject to the security interest hereunder. In addition, with respect to any
Pledged Collateral which shall then be in or shall thereafter come into the
possession or custody of Lender, Lender may sell or cause the same to be sold
at any broker's board or at any public or private sale, in one or more sales or
lots, at such price or prices as Lender may deem best, for cash or on credit or
for future delivery, without assumption of any credit risk, all in accordance
with the terms and provisions of the Loan Agreement and this Agreement. The
purchaser of any or all Pledged Collateral so sold shall thereafter hold the
same absolutely, free from any claim, encumbrance or right of any kind
whatsoever. Unless any of the Pledged Collateral threatens to decline speedily
in value or is or becomes of a type sold on a recognized market, Lender will
give Pledgor reasonable notice of the time and place of any public sale
thereof, or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Pledged Collateral conducted in
conformity with reasonable commercial practices of banks, insurance companies,
commercial finance companies, or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Any requirements of reasonable notice shall be met if such notice
is mailed to Pledgor as provided in Section 15.1 below, at least ten (10) days
before the time of the sale or disposition. Any other requirement of notice,
demand or advertisement for sale is, to the extent permitted by law, waived.
Lender may, in its own name or in the name of a designee or nominee, buy any of
the Pledged Collateral at any public sale and, if permitted by applicable law,
at any private sale. All expenses (including court costs and reasonable
attorneys' fees, expenses and disbursements) of, or incident to, the
enforcement of any of the provisions hereof shall be recoverable from the
proceeds of the sale or other disposition of the Pledged Collateral. In view
of the fact that federal and state securities laws may impose certain
restrictions on the method by which a sale of the Pledged Collateral may be
effected after an Event of Default, Pledgor agrees that upon the occurrence or
existence of any Event of Default, Lender may, from time to time, attempt to
sell all or any part of the Pledged Collateral by means of a private placement,
restricting the prospective purchasers to those who will represent and agree
that they are purchasing for investment only and not for distribution. In so
doing, Lender may solicit offers to buy the Pledged Collateral, or any part of
it, for cash, from a limited number of investors who might be interested in
purchasing the Pledged Collateral, and if Lender solicits such offers from not
less than two (2) such investors that are not affiliated with Lender, then the
acceptance by Lender of the highest offer obtained therefrom shall be deemed to
be a commercially reasonable method of disposition of the Pledged Collateral.
SECTION 13. EXPENSES. Pledgor will, upon demand, pay to Lender the
amount of any and all reasonable expenses, including, without limitation, the
reasonable fees, expenses and disbursements of its counsel (including allocated
costs of inside counsel), of any investment banking firm, business broker or
other selling agent and of any other experts and agents retained by Lender,
which Lender may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, (iii) the
exercise or enforcement of any of the rights of Lender hereunder or (iv) the
failure by Pledgor to perform or observe any of the provisions hereof.
SECTION 14. SECURITY INTEREST ABSOLUTE. All rights of Lender and
security interests hereunder, and all obligations of Pledgor hereunder, shall
be absolute and unconditional irrespective of, and unaffected by:
(a) any lack of validity or enforceability of any Financing Agreement;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Liabilities, or any other amendment or
waiver of or any consent to any departure of any Financing Agreement;
(c) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the Liabilities; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor in respect of the Liabilities or
of this Agreement.
SECTION 15. MISCELLANEOUS PROVISIONS.
SECTION 15.1 Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the form
and manner, and delivered to each of the parties hereto at their respective
addresses, set forth on the signature page of the Loan Agreement.
SECTION 15.2 Headings. The headings in this Agreement are for
purposes of reference only and shall not affect the meaning or construction of
any provision of this Agreement.
SECTION 15.3 Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
SECTION 15.4 Amendments, Waivers and Consents. Any amendment or
waiver of any provision of this Agreement and any consent to any departure by
Pledgor from any provision of this Agreement shall be effective only if made or
given in compliance with all of the terms and provisions of Section 11.3 of the
Loan Agreement.
SECTION 15.5 Interpretation of Agreement. Time is of the essence
in each provision of this Agreement of which time is an element. All terms not
defined herein or in the Loan Agreement shall have the meaning set forth in the
applicable Uniform Commercial Code, except where the context otherwise
requires. To the extent a term or provision of this Agreement conflicts with
the Loan Agreement and is not dealt with herein with more specificity, the Loan
Agreement shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance rendered
under this Agreement shall not be relevant in determining the meaning of this
Agreement even though the accepting or acquiescing party had knowledge of the
nature of the performance and opportunity for objection.
SECTION 15.6 Continuing Security Interest; Transfer of Revolving
Notes. This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until payment
in full (including after the termination of the Loan Agreement) of the
Liabilities and termination of Lender's Revolving Loan commitments, (ii) be
binding upon Pledgor, its successors and assigns, and (iii) inure, together
with the rights and remedies of Lender hereunder, to the benefit of Lender, and
its successors, transferees and assigns. Without limiting the generality of
clause (iii), above, any Lender may, except as limited by the express terms of
the Loan Agreement, assign or otherwise transfer any Revolving Loan held by it
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.
SECTION 15.7 Reinstatement. To the extent permitted by law, this
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time any amount received by Lender in respect of the Obligations is
rescinded or must otherwise be restored or returned by Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Pledgor
or upon the appointment of any receiver, intervenor, conservator, trustee or
similar official for Pledgor or any substantial part of its assets, or
otherwise, all as though such payments had not been made.
SECTION 15.8 Survival of Provisions. All representations,
warranties and covenants of Pledgor contained herein shall survive the
execution and delivery of this Agreement, and shall terminate only upon the
full and final payment and performance by Pledgor of the Obligations secured
hereby and termination of Lender's Revolving Loan commitments.
SECTION 15.9 Setoff. Lender shall have the rights of setoff set
forth in Section 10.2(b) of the Loan Agreement.
SECTION 15.10 Waivers. Pledgor waives presentment and demand for
payment of any of the Liabilities, protest and notice of dishonor or default
with respect to any of the Liabilities, and all other notices to which Pledgor
might otherwise be entitled, except as otherwise expressly provided herein.
SECTION 15.11 Authority of Lender. Lender shall have and be
entitled to exercise all powers hereunder which are specifically granted to
Lender by the terms hereof, together with such powers as are reasonably
incident thereto. Lender may perform any of its duties hereunder or in
connection with the Pledged Collateral by or through agents or employees and
shall be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Neither Lender nor any director, officer,
employee, attorney or agent of Lender shall be liable to Pledgor for any action
taken or omitted to be taken by it or them hereunder, except for its or their
own gross negligence or willful misconduct, nor shall Lender be responsible for
the validity, effectiveness or sufficiency of this Agreement or of any document
or security furnished pursuant hereto. Lender and its directors, officers,
employees, attorneys and agents shall be entitled to rely on any communication,
instrument or document reasonably believed by it or them to be genuine and
correct and to have been signed or sent by the proper person or persons.
Pledgor agrees to indemnify and hold harmless Lender and any other Person from
and against any and all costs, expenses (including reasonable fees, expenses
and disbursements of attorneys and paralegals (including, without duplication,
reasonable charges of inside counsel)), claims and liabilities incurred by
Lender or such Person hereunder, unless such claim or liability shall be due to
willful misconduct or gross negligence on the part of the Person seeking
indemnification.
SECTION 15.12 Release; Termination of Agreement. Subject to the
provisions of Section 15.7 hereof, this Agreement shall terminate upon full and
final payment and performance of all the Obligations and termination of
Lender's Revolving Loan commitments. At such time, Lender shall, at the
request and expense of Pledgor, reassign and redeliver to Pledgor all of the
Pledged Collateral hereunder which has not been sold, disposed of, retained or
applied by Lender in accordance with the terms hereof. Such reassignment and
redelivery shall be without warranty by or recourse to Lender, except as to the
absence of any prior assignments by Lender of its interest in the Pledged
Collateral, and shall be at the expense of Pledgor.
SECTION 15.13 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be deemed an
original but all of which shall together constitute one and the same agreement.
SECTION 15.14 SUBMISSION TO JURISDICTION; WAIVERS. 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 FINANCING AGREEMENTS TO WHICH IT IS A
PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF,
TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
ILLINOIS, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT
OF ILLINOIS AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS AND WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, IN CONNECTION WITH
ANY SUCH ACTION OR PROCEEDING (1) 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, (2) THE RIGHT TO ASSERT OR IMPOSE ANY NON-
COMPULSORY SETOFF, COUNTERCLAIM OR CROSS-CLAIM IN RESPECT THEREOF IN SUCH
PROCEEDING (BUT NOT ANY RIGHT PURSUANT TO A SEPARATE PROCEEDING) AND (3) ALL
STATUTES OF LIMITATIONS WHICH MAY BE RELEVANT THERETO;
(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 PLEDGOR AT ITS ADDRESS
SET FORTH ABOVE OR AT SUCH OTHER ADDRESS OF WHICH LENDER SHALL HAVE BEEN
NOTIFIED PURSUANT HERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER
TO COMMENCE LEGAL PROCEEDINGS AGAINST PLEDGOR OR ITS PROPERTY IN ANY OTHER
JURISDICTION;
(e) WAIVES ALL RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE
EXERCISE BY LENDER OF ITS RIGHTS FROM AND AFTER AN EVENT OF DEFAULT TO
REPOSSESS THE PLEDGED COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR
LEVY UPON THE PLEDGED COLLATERAL. PLEDGOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF LENDER IN CONNECTION WITH ANY JUDICIAL PROCESS OR
PROCEEDING TO OBTAIN POSSESSION OF, REPLEVY, ATTACH OR LEVY UPON PLEDGED
COLLATERAL, TO ENFORCE ANY JUDGMENT OR OTHER SECURITY FOR THE LIABILITIES, TO
ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR
PERMANENT INJUNCTION, THIS AGREEMENT, OR ANY OTHER AGREEMENT OR DOCUMENT
BETWEEN PLEDGOR AND ANY SUCH PARTY.
(f) WAIVES THE RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM IN
RESPECT OF, AND ALL STATUTES OF LIMITATIONS WHICH MAY BE RELEVANT TO, SUCH
ACTION OR PROCEEDING; AND
(g) WAIVES DUE DILIGENCE, DEMAND, PRESENTMENT AND PROTEST AND ANY NOTICES
THEREOF AS WELL AS NOTICE OF NONPAYMENT.
SECTION 5.15 JURY TRIAL. PLEDGOR AND LENDER EACH HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM)
ARISING OUT OF THIS AGREEMENT, THE OTHER FINANCING AGREEMENTS OR ANY OTHER
AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
SECTION 5.16 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, Pledgor and Lender have each caused this Agreement
to be duly executed and delivered as of the date first above written.
PLEDGOR:
ALL-AMERICAN BOTTLING CORPORATION, a Delaware
corporation
By: STEPHEN R. KERR
Name: Stephen R. Kerr
Title: Vice President and Chief Financial
Officer
PLEDGEE:
CONGRESS FINANCIAL CORPORATION (CENTRAL), as
Lender
By: RICHARD A. DICKARD
Name: Richard A. Dickard
Title: Senior Vice President
SCHEDULE I
PLEDGED SHARES
PLEDGOR ISSUER ISSUE NUMBER OF SHARES CERTIFICATE NO.
All-American All-American 12/12/94 100 1
Bottling Bottling Financial
Corporation Corporation
All-American Gold Medal Beverage 3/6/91 1000 2
Bottling Corporation
Corporation