SUBORDINATED PLEDGE AGREEMENT
THIS SUBORDINATED PLEDGE AGREEMENT (this "Agreement") is made and
entered into as of October 8, 2003 by Advanced Cast Products, Inc., a Delaware
corporation, having an office at 2121 Brooks Avenue, Neenah, Wisconsin 54956
(the "Pledgor"), in favor of The Bank of New York, a New York banking
corporation, as Trustee (the "Trustee") for the noteholders (the "Noteholders")
under the Indenture (as defined below). The Trustee's address is 101 Barclay
Street, 8th Floor West, New York, New York 10286. Capitalized terms used and not
otherwise defined herein have the meanings assigned in the Indenture (as defined
below).
W I T N E S S E T H:
WHEREAS, that certain Indenture (as amended, supplemented or otherwise
modified from time to time, the "Indenture") dated as of the date hereof by and
among the Neenah Foundry Company, a Wisconsin corporation ("Neenah Foundry"),
the Subsidiary Guarantors party thereto and the Trustee has been entered into
pursuant to which Neenah Foundry has issued its 11% senior secured notes due
September 30, 2010 (the "Senior Secured Notes") in the aggregate principal
amount of $133,130,000;
WHEREAS, Pledgor is jointly and severally liable for all of the
Obligations of Neenah Foundry, itself and each other Subsidiary Guarantor under
the Indenture;
WHEREAS, Pledgor owns 100% of the issued and outstanding capital stock
of Belcher Corporation, a Delaware corporation, and Peerless Corporation, an
Ohio corporation, (collectively, the "Issuers"), all as described on Schedule I
hereto; and
WHEREAS, to secure repayment and performance of all of Pledgor's
obligations, liabilities and indebtedness under the Indenture (including the
Subsidiary Guarantee thereunder), Trustee and Noteholders have required that
Pledgor shall have made the pledge contemplated by this Agreement;
NOW, THEREFORE, in consideration of the premises, Pledgor hereby agrees
with Trustee as follows:
1. Pledge. Pledgor hereby pledges to Trustee, for its own benefit and
the benefit of the Noteholders, and grants to Trustee, for its own benefit and
the benefit of Noteholders, a security interest in:
(a) the shares of stock of each "Issuer" identified on Schedule I hereto
held by Pledgor (the "Pledged Shares") and the certificates representing
the Pledged Shares, and all stock dividends, cash dividends, cash,
instruments, chattel paper and other rights, property or proceeds and
products from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares;
(b) all additional shares of stock of each Issuer at any time acquired
by Pledgor in any manner, and the certificates representing such additional
shares (and any such additional shares shall constitute part of the Pledged
Shares under this Agreement), and all stock dividends, cash dividends, cash,
instruments, chattel paper and other rights, property or proceeds and
products from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares; and
(c) all proceeds of any of the foregoing (the assets described in this
Section 1 are collectively referred to as, the "Pledged Collateral").
(d) Notwithstanding anything in this Agreement to the contrary, the
liens securing this Mortgage are subordinate in the manner and to the extent
set forth in that certain Lien Subordination Agreement (the "Subordination
Agreement") dated as of the date hereof among Trustee, Neenah Foundry and
the other "Companies" (as defined therein) party thereto and Fleet Capital
Corporation ("Agent"), to the liens securing the indebtedness (including
interest) owed by the Companies pursuant to or in connection with that
certain Loan and Security Agreement dated as of the date hereof among Neenah
Foundry, certain of the other Companies, Agent and the lenders from time to
time party thereto, as such Loan and Security Agreement may be amended,
supplemented or otherwise modified from time to time and to indebtedness
refinancing the indebtedness under such Loan and Security Agreement; and the
Trustee (on behalf of itself and each Noteholder), by its acceptance hereof,
irrevocably agrees to be bound by the provisions of the Subordination
Agreement and each agreement made therein by the Trustee on its behalf.
2. Security for Obligations. This Agreement and all of the Pledged
Collateral secure the payment and performance of the Obligations (as such term
is defined in the Indenture), together with all reasonable costs and expenses,
including, without limitation, all court costs and reasonable attorneys' and
paralegals' fees and expenses paid or incurred by Trustee or any Noteholder in
endeavoring to collect all or any part of the Obligations from, or in
prosecuting any action against Neenah Foundry, Pledgor or any other guarantor of
all or any part of the Obligations (all such indebtedness, obligations and
liabilities described in this Section 2 being collectively called the "Secured
Obligations").
3. Delivery of Pledged Collateral. Subject to the Subordination
Agreement and the payment in full of the Senior Indebtedness (the "Loan
Agreement Termination"), all certificates or instruments representing or
evidencing the Pledged Collateral shall be delivered to and held by or on behalf
of Trustee pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed undated instruments of
transfer or assignment in blank, all in form and substance reasonably
satisfactory to Trustee. Prior to the Loan Agreement Termination, the Agent, and
after the Loan Agreement Termination, the Trustee, shall have the right, at any
time in its discretion and without notice to Pledgor following the occurrence
and during the continuance of an Event of Default, to transfer to or to register
in the name of Trustee or any of its nominees
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any or all of the Pledged Collateral. In addition, prior to the Loan Agreement
Termination, the Agent, and after the Loan Agreement Termination, the Trustee,
shall have the right to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
4. Representations and Warranties. In order to induce Trustee to enter
into this Agreement and the Indenture, Pledgor represents and warrants that the
following statements are true, correct and complete:
(a) Schedule I hereto completely and accurately sets forth all of the
issued and outstanding stock of each Issuer as of the date hereof. All
shares of such stock are owned legally and beneficially by Pledgor and have
been duly authorized and validly issued and are fully paid and
nonassessable. There are no outstanding warrants, options, subscriptions or
other contractual arrangements for the purchase of any other shares of stock
or any securities convertible into shares of stock of any Issuer, and there
are no preemptive rights with respect to the shares of stock of any Issuer.
(b) Assuming that Agent or Trustee has taken and is retaining possession
of the Pledged Shares in the State of Illinois, in the case of Agent, or in
the State of New York, in the case of Trustee, as required in Section 3
above and further assuming that Agent or Trustee, as the case may be
pursuant to Section 3 above, has taken possession of the Pledged Shares
without notice (actual or constructive) of any adverse claims in respect of
the Pledged Shares, the delivery of the Pledged Shares to the Agent or
Trustee, as the case may be pursuant to Section 3 above, is effective to
create a valid and perfected first priority security interest in the Pledged
Collateral, free of any adverse claim, securing the payment of the Priority
Lien Obligations and, on a subordinated basis pursuant to the Subordination
Agreement, the Secured Obligations.
(c) Subject to the Subordination Agreement, no consent of any other
party (including, without limitation, any creditor of Pledgor) and no
consent, 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 Trustee 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 has already
been obtained or taken and except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally).
(d) None of the Pledged Shares constitutes margin stock, as defined in
Regulation U of the Board of Governors of the Federal Reserve System.
(e) This Agreement is the legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms, except as
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limited by applicable bankruptcy, reorganization, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
(f) All information herein or hereafter supplied to Trustee by or on
behalf of Pledgor with respect to the Pledged Collateral is and will be
accurate and complete in all material respects.
5. Further Assurances.
(a) Subject to the Subordination Agreement, Pledgor will, from time to
time, at Pledgor's expense, promptly execute and deliver all further
instruments and documents and take all further action that is necessary, or
that Trustee may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby, to enable
Trustee to exercise and enforce the rights and remedies of Trustee hereunder
with respect to any Pledged Collateral or to carry out the provisions and
purposes hereof. Without limiting the generality of the foregoing, Pledgor
will: (i) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as is necessary,
or as Trustee may reasonably request, in order to perfect and preserve the
security interests granted or purported to be granted hereby under the laws
of any applicable jurisdiction or (ii) appear in and defend any action or
proceeding that may affect Pledgor's title to or Trustee's security interest
in the Pledged Collateral.
(b) Pledgor will, promptly (and in any event within three Business Days)
upon the purchase or acquisition of any additional shares of stock of each
Issuer, deliver such Pledged Shares to the Agent or the Trustee, as the case
may be pursuant to Section 3 above, together with a proxy substantially in
the form attached hereto as Exhibit A, and a pledge amendment, duly executed
by Pledgor, in substantially the form of Exhibit B hereto (a "Pledge
Amendment"), in respect of the additional shares which are to be pledged
pursuant to this Agreement. Pledgor hereby authorizes Trustee to attach each
Pledge Amendment to this Agreement and agrees that all shares listed on any
Pledge Amendment delivered to Trustee shall for all purposes hereunder be
considered Pledged Collateral.
6. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default shall have occurred and be continuing
and Trustee shall not have delivered to Pledgor notice of its election to
exercise the rights set forth in subsection (b) below:
(i) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this
Agreement or the Indenture.
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(ii) Except as otherwise expressly permitted in the Indenture, any
and all instruments, chattel paper and other rights, property or
proceeds and products (other than cash or checks) received, receivable
or otherwise distributed in respect of, or in exchange for, any Pledged
Collateral, shall be and shall be forthwith delivered to, prior to the
Loan Agreement Termination, the Agent, and after the Loan Agreement
Termination, the Trustee, to hold as Pledged Collateral, and shall, if
received by Pledgor, be received in trust for the benefit of Trustee, be
segregated from the other property or funds of Pledgor, and be forthwith
delivered to, prior to the Loan Agreement Termination, the Agent, and
after the Loan Agreement Termination, the Trustee, as Pledged Collateral
in the same form as so received (with any necessary endorsement).
(iii) Trustee shall promptly upon request 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 Pledgor
is entitled to exercise pursuant to paragraph (i) above, and to receive
the dividends which Pledgor is authorized to receive and retain pursuant
to paragraph (ii) above.
(b) Subject to the Subordination Agreement, upon the occurrence and
during the continuance of an Event of Default:
(i) Except as otherwise expressly permitted in the Indenture, all
rights of Pledgor to receive and retain any cash dividends and
distributions pursuant to subsection 6(a)(ii), and to exercise the
voting and other consensual rights which Pledgor would otherwise be
entitled to exercise pursuant to subsection 6(a)(i), shall cease to be
effective upon written notice by Trustee to Pledgor of Trustee's intent
to exercise its rights hereunder, and upon delivery of such notice shall
become vested in Trustee who shall thereupon have the sole right to
exercise such voting and other consensual rights and the sole right to
receive and hold as Pledged Collateral such dividends (and, to the
extent permissible, apply them to payment of the Secured Obligations).
In order to effect such transfer of rights, Trustee shall have the
right, upon such notice, to date and present to the applicable Issuer an
irrevocable proxy executed by Pledgor substantially in the form attached
hereto as Exhibit A (a "Proxy").
(ii) Except as expressly permitted in the Indenture, all dividends
which are received by Pledgor contrary to the provisions of this
subsection 6(b) shall be received in trust for the benefit of Trustee
(for the benefit of Noteholders), shall be segregated from other funds
of Pledgor and shall be forthwith paid over to, prior to the Loan
Agreement Termination, the Agent, and after the Loan Agreement
Termination, the Trustee, as Pledged Collateral in the same form as so
received (with any necessary endorsement).
7. Transfers and Other Liens; Additional Shares.
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(a) Other than for Priority Liens and Priority Lien Documents prior to
the Loan Agreement Termination, Pledgor agrees that Pledgor will not (i)
encumber, sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Pledged
Collateral or (ii) enter into any other contractual obligations which could
reasonably be expected to restrict or inhibit the right or ability of
Trustee to sell or otherwise dispose of the Pledged Collateral or any part
thereof after the occurrence and during the continuance of an Event of
Default.
(b) Pledgor agrees that if any Issuer issues any stock or other
securities (including any warrants, options, subscriptions or other
contractual arrangements for the purchase of stock or securities convertible
into stock) in addition to or in substitution for the Pledged Shares,
Pledgor will deliver, promptly (and in any event within three Business Days)
upon its acquisition (directly or indirectly) thereof, any and all writings
evidencing any additional Pledged Collateral to, prior to the Loan Agreement
Termination, the Agent, and after the Loan Agreement Termination, the
Trustee. Pledgor hereby authorizes Trustee to modify this Agreement by
unilaterally amending Schedule I to include such shares of stock or other
securities.
8. Trustee Appointed Attorney-in-Fact. Subject to the Subordination
Agreement, Pledgor hereby irrevocably appoints Trustee as Pledgor's
attorney-in-fact effective upon the occurrence and during the continuance of an
Event of Default, with full authority in the place and stead of Pledgor and in
the name of Pledgor, Trustee or otherwise, from time to time in the discretion
of Trustee to take any action (including completion and presentation of any
proxy) and to execute any instrument that is necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to (i)
receive, endorse and collect all instruments made payable to Pledgor
representing any dividend or other distribution in respect of the Pledged
Collateral or any part thereof; (ii) exercise the voting and other consensual
rights pertaining to the Pledged Collateral; and (iii) sell, transfer, pledge,
make any agreement with respect to or otherwise deal with any of the Pledged
Collateral as fully and completely as though Trustee was the absolute owner
thereof for all purposes, and to do, at the option of Trustee and at Pledgor's
expense, at any time or from time to time, all acts and things that are
necessary or that the Trustee deems necessary to protect, preserve or realize
upon the Pledged Collateral. Pledgor hereby ratifies and approves all acts of
Trustee made or taken in accordance with the terms of this Section 8. Except as
specifically set forth in Section 10 hereof or in the event of the gross
negligence or willful misconduct of Trustee, neither Trustee nor any person
designated by Trustee shall be liable for any acts or omissions or for any error
of judgment or mistake of fact or law. This power of attorney, being coupled
with an interest, shall be irrevocable until all Secured Obligations (other than
unasserted contingent indemnity obligations) shall have been paid in full and
the Indenture Documents shall have been terminated.
9. Trustee May Perform. If Pledgor fails to perform any agreement
contained herein, Trustee may itself perform, or cause performance of, such
agreement, and the expenses of Trustee incurred in connection therewith shall be
a part of the Secured Obligations.
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10. Limitation on Duty of Trustee with Respect to the Pledged
Collateral. The powers conferred on Trustee hereunder are solely to protect its
interest in the Pledged Collateral and shall not impose any duty on it to
exercise any such powers. Except for the safe custody of any Pledged Collateral
in its possession and the accounting for monies actually received by it
hereunder, Trustee shall have no duty with respect to any Pledged Collateral.
Trustee 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 that is substantially equivalent to that which
a reasonably prudent person in the industry accords to such property, it being
expressly agreed that Trustee shall have no 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
Trustee 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, but Trustee may do so and all expenses incurred in
connection therewith shall be payable by and for the sole account of Pledgor.
11. Remedies upon Event of Default. Subject to the Subordination
Agreement, if any Event of Default shall have occurred and be continuing:
(a) Trustee may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all of the rights and remedies of a secured party under the
Uniform Commercial Code (the "UCC") in the State of New York, whether or not
the UCC applies to the affected Pledged Collateral, and Trustee may also,
without notice except as specified below, sell the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any office of Trustee or elsewhere, for cash,
on credit, or for future delivery, at such price or prices and upon such
other terms as Trustee deems commercially reasonable. Pledgor acknowledges
and agrees that such a private sale may result in prices and other terms
which may be less favorable to the seller than if such sale were a public
sale. Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten (10) days' notice to 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. At any sale of the Pledged Collateral,
if permitted by law, Trustee, on behalf of Noteholders, may bid (which bid
may be, in whole or in part, in the form of cancellation of indebtedness)
for the purchase of the Pledged Collateral or any portion thereof. Trustee
shall not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given. Trustee 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. Trustee shall be under no obligation to delay a
sale of any of the Pledged Collateral for the period of time necessary to
permit the issuing corporation of such securities to register such
securities for public sale under the Securities Act of 1933, as from time to
time amended (the "Securities Act"), or under applicable state securities
laws,
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even if the issuing corporation would agree to do so. To the extent
permitted by law, Pledgor hereby specifically waives all rights of
redemption, stay or appraisal which Pledgor has or may have under any law
now existing or hereafter enacted.
(b) Except as expressly permitted in the Indenture and in this
Agreement, all cash proceeds received by Trustee in accordance with the
terms hereof in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of Trustee, be held by Trustee as collateral for, and/or then or
at any time thereafter applied (after payment of any amounts payable to
Trustee pursuant to the terms of the Indenture) in whole or in part by
Trustee against all or any part of the Secured Obligations in accordance
with the provisions of Section 13. Any surplus of such cash or cash proceeds
held by Trustee and remaining after payment in full of all the Secured
Obligations shall be paid over to Pledgor or to whomsoever may be lawfully
entitled to receive such surplus or as a court of competent jurisdiction may
direct; provided, that in the event that all of the conditions to the
termination of this Agreement pursuant to Section 14 shall not have been
fulfilled, such balance shall be held and applied from time to time as
provided in this subsection 11(b) until all such conditions shall have been
fulfilled.
(c) Pledgor recognizes that Trustee may be unable to effect a public
sale of all or part of the Pledged Collateral and may be compelled to resort
to one or more private sales to a restricted group of purchasers who will be
obligated to agree, among other things, to acquire such Pledged Collateral
for their own account, for investment and not with a view to the
distribution or resale thereof. Pledgor acknowledges that any such private
sales may be at prices and on terms less favorable to the seller than if
sold at public sales and agrees that such private sales shall be deemed to
have been made in a commercially reasonable manner, and that Trustee has no
obligation to delay sale of any such Pledged Collateral for the period of
time necessary to permit each issuer of such Pledged Collateral to register
such Pledged Collateral for public sale under the Securities Act.
12. Remedies Cumulative. No failure on the part of Trustee to exercise,
and no delay in exercising and no course of dealing with respect to, any power,
privilege or right under the Indenture, the other Collateral Documents or this
Agreement (collectively, the "Indenture Documents") shall operate as a waiver
thereof; nor shall any single or partial exercise by Trustee of any power,
privilege or right under any of the other Indenture Documents or this Agreement
preclude any other or further exercise thereof or the exercise of any other such
power, privilege or right. The powers, privileges and rights in this Agreement
and the other Indenture Documents are cumulative and are not exclusive of any
other remedies provided by law.
13. Application of Proceeds. Subject to the Subordination Agreement,
upon the occurrence and during the continuance of an Event of Default, the
proceeds of any
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sale of, or other realization upon, all or any part of the
Pledged Collateral shall be applied in the manner set forth in the Indenture.
14. Termination of Security Interests; Release of Collateral. Upon
payment and performance in full of all Secured Obligations (other than
unasserted contingent indemnity obligations) and termination of the Indenture in
accordance with its terms, the security interests granted herein shall terminate
and all rights to the Pledged Collateral shall revert to Pledgor. Upon such
termination of the security interests or release of any Pledged Collateral,
Trustee will, at the expense of Pledgor, and subject to Section 20 herein,
promptly execute and deliver to Pledgor such documents as Pledgor shall
reasonably request to evidence the termination of the security interests or the
release of such Pledged Collateral which has not yet theretofore been sold or
otherwise applied or released. Such release shall be without recourse or
warranty to Trustee, except as to the absence of any prior assignments by
Trustee of its interest in the Pledged Collateral.
15. Amendments, Waivers and Consents. No amendment, modification,
termination or waiver of any provision of this Agreement, or consent to any
departure by Pledgor therefrom, shall in any event be effective without the
written concurrence of Trustee and Pledgor.
16. Notices. Any notice, approval, request, demand, consent or other
communication hereunder, including any notice of default or notice of sale,
shall be given to Pledgor or Trustee at the applicable address set forth above
(or to such other address previously designated by written notice to the serving
party) in accordance with the notice provision of the Indenture.
17. Continuing Security Interest; Successors and Assigns. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until payment and performance in
full of all Secured Obligations (other than unasserted contingent indemnity
obligations) and termination of the Indenture, (ii) be binding upon Pledgor, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Trustee hereunder, to the benefit of Trustee and its successors and assigns.
Pledgor may not assign or transfer any of its interests or obligations hereunder
without the prior consent of Trustee.
18. Waiver.
(a) In addition to any other waivers herein, Pledgor waives to the
greatest extent it may lawfully do so, and agrees that it shall not at any
time insist upon, plead or in any manner whatever claim or take the benefit
or advantage of, any appraisal, valuation, stay, extension, marshalling of
assets, redemption or similar law, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the
performance by Pledgor of its obligations under, or the enforcement by
Trustee of, this Agreement. Pledgor hereby waives diligence, presentment and
demand (whether for nonpayment or protest or of acceptance, maturity,
extension of time, change in nature or form of the Secured Obligations,
acceptance of
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further security, release of further security, composition or agreement
arrived at as to the amount of, or the terms of the Secured Obligations,
notice of adverse change in any Issuer's or any other Person's financial
condition or any other fact which might materially increase the risk to
Pledgor) with respect to any of the Secured Obligations or all other demands
whatsoever and, to the fullest extent permitted by law, waives the benefit
of all provisions of law which are or might be in conflict with the terms of
this Agreement.
(b) If Trustee may, under applicable law, proceed to realize its
benefits under any of the Indenture Documents giving Trustee a Lien upon any
Collateral, whether owned by any Issuer or by any other Person, either by
judicial foreclosure or by non-judicial sale or enforcement, Trustee may, at
its sole option, determine which of its remedies or rights it may pursue
without affecting any of the rights and remedies of Trustee under this
Agreement.
19. Subrogation. Subject to, and solely effective following, the
payment in full in cash of all Obligations (other than unasserted contingent
indemnity obligations), Pledgor shall be subrogated to the rights of the
Noteholders to receive payments and distributions of cash, property and
securities applicable to such Obligations. For purposes of such subrogation, no
payments or distributions to the Noteholders of any cash, property or securities
to which the Noteholders would be entitled except for this provision, and no
payments over pursuant to the provisions of this paragraph to the Noteholders by
Pledgor shall, as among each Issuer (as defined in the Indenture) or any
Subsidiary Guarantor, their respective creditors (other than holders of such
Obligations) and Pledgor be deemed to be a payment or distribution by such
Issuer (as defined in the Indenture) or any Subsidiary Guarantor to or on
account of such Obligations.
20. Reinstatement. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by Trustee or
any Noteholder in respect of the Secured Obligations is rescinded or must
otherwise be restored or returned by Trustee or any Noteholder upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Pledgor or
any Issuer or upon the appointment of any intervenor or conservator of, or
trustee or similar official for, Pledgor or any Issuer or any substantial part
of its assets, or otherwise, all as though such payments had not been made.
21. Severability. The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction 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.
22. Interpretation. Time is of the essence of each provision of this
Agreement of which time is an element. All terms not defined herein or in the
Indenture shall have the meanings set forth in the UCC, except where the context
otherwise requires. To the extent any term or provision of this Agreement
conflicts with the provisions of the
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Indenture and is not dealt with more specifically herein, the Indenture shall
control with respect to such term or provision.
23. Survival of Provisions. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement and the Indenture, the issuance of Notes thereunder and the execution
and delivery of the Notes. Notwithstanding anything in this Agreement or implied
by law to the contrary, the agreements, representations and warranties of
Pledgor set forth herein shall terminate only upon payment of the Secured
Obligations and the termination of this Agreement in accordance with its terms.
24. Statute of Limitations. Pledgor hereby waives the right to plead
any statute of limitations as a defense to any indebtedness or obligation
hereunder or secured hereby to the full extent permitted by law.
25. Headings Descriptive. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
27. GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
28. WAIVER OF JURY TRIAL; JURISDICTION. PLEDGOR HEREBY CONSENTS TO THE
JURISDICTION OF STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK COUNTY, NEW YORK
AND WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON
CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND CONSENTS THAT
ALL SERVICE OF PROCESS UPON PLEDGOR BE MADE BY REGISTERED MAIL OR MESSENGER
DIRECTED TO PLEDGOR AT THE ADDRESS SET FORTH ABOVE AND THAT SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. PLEDGOR AND TRUSTEE
EACH HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY. NOTHING
CONTAINED HEREIN SHALL AFFECT THE RIGHT OF TRUSTEE TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF TRUSTEE TO BRING ANY ACTION
OR PROCEEDING AGAINST PLEDGOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
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29. Incorporation By Reference. In connection with its appointment and
acting hereunder the Trustee is entitled to all rights, privileges, benefits,
protections, immunities and indemnities provided to it under the Indenture.
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IN WITNESS WHEREOF, Pledgor has caused this Pledge Agreement to be duly
executed and delivered as of the day and year first above written.
ADVANCED CAST PRODUCTS, INC.
By: /s/ Gary LaChey
------------------------------------------
Title: VP-Finance, Treasurer, Secty. & CFO
---------------------------------------
By acceptance hereof as of this 8th day of October, 2003, Trustee
agrees to be bound by the provisions hereof.
BANK OF NEW YORK, as Trustee
By: /s/ Patricia Gallagher
------------------------------------------
Title: Vice President
---------------------------------------
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SCHEDULE I
TO PLEDGE AGREEMENT
STOCK
TYPE AND CERTIFICATE NUMBER
ISSUER OF PLEDGED STOCK CLASS OF STOCK NUMBERS PAR VALUE OF SHARES PERCENTAGE
- ----------------------- --------------- ------------ ---------- --------- ----------
Belcher Corporation. 100%
Peerless Corporation 100%
EXHIBIT A
Irrevocable Proxy
The undersigned hereby appoints Bank of New York, as Trustee
("Trustee") as proxy with full power of substitution, and hereby authorizes
Trustee to represent and vote all of the shares of the capital stock of
__________________________, held of record by the undersigned on the date of
exercise hereof or at any meeting or at any other time chosen by Trustee in its
sole discretion, but only at the times provided in that certain Pledge Agreement
dated as of October 8, 2003, executed by the undersigned in favor of Trustee.
Dated: ___________ __, 2003
ADVANCED CAST PRODUCTS, INC.
By______________________________________
Title___________________________________
EXHIBIT B
Pledge Amendment
This Pledge Amendment, dated ___________________ is delivered pursuant
to Section 5(c) of the Pledge Agreement referred to below. The undersigned
hereby agrees that this Pledge Amendment may be attached to the Pledge
Agreement, dated as of October 8, 2003, between the undersigned and Bank of New
York, as trustee (the "Pledge Agreement"; capitalized terms defined therein
being used herein as therein defined) and that the shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Collateral and shall secure
all Secured Obligations.
Dated: __________, 200__
ADVANCED CAST PRODUCTS, INC.
By______________________________________
Title___________________________________
STOCK ISSUER CLASS OF STOCK STOCK CERTIFICATE NO(S). PAR VALUE NUMBER OF SHARES
------------ -------------- ------------------------ --------- -----------------
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _________________, a _______________ corporation,
hereby sells, assigns and transfers unto Bank of New York, as trustee
_____________ (_____) Shares of the common stock of _____________________, a
_____________ corporation (the "Corporation"), standing in its name on the books
of the Corporation represented by Certificate(s) No. ____________________
herewith and does hereby irrevocably constitute and appoint ____________________
attorney to transfer the said stock on the books of the Corporation with full
power of substitution in the premises.
Dated: _____________
ADVANCED CAST PRODUCTS, INC.
By______________________________________
Title___________________________________