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EXHIBIT 4.9
AMENDED AND RESTATED SUBSIDIARIES PLEDGE AGREEMENT
PLEDGE AGREEMENT, (this "Agreement") dated as of March 24,
1992, amended and restated as of December 18, 1996 and further amended and
restated as of March 16, 1998, made by each of the undersigned (each a "Pledgor"
and collectively the "Pledgors"), to BANKERS TRUST COMPANY, as Collateral Agent
(the "Pledgee") for the benefit of the Secured Creditors (as defined below)
(except as otherwise defined herein, terms used herein and defined in the Credit
Agreement shall be used herein as therein defined).
W I T N E S S E T H :
WHEREAS, Coltec Industries Inc (the "Company"), Coltec
Aerospace Canada Ltd., the financial institutions (the "Banks") from time to
time party thereto, Bank of America National Trust and Savings Association, as
Documentation Agent (in such capacity, the "Documentation Agent"), The Chase
Manhattan Bank, as Syndication Agent (in such capacity, the "Syndication
Agent"), Bank of Montreal, as Canadian Paying Agent (in such capacity, the
"Canadian Paying Agent"), and Bankers Trust Company, as Administrative Agent
(together with any successor administrative agent, the "Administrative Agent"
and together with the Pledgee, the Documentation Agent, the Syndication Agent,
the Canadian Paying Agent and the Banks and their respective successors and
assigns, and together with any other financial institutions from time to time
party to the Credit Agreement hereinafter referred to, the "Bank Creditors"),
have entered into a Credit Agreement, dated as of March 24, 1992, and amended
and restated as of January 11, 1994, and further amended and restated as of
December 18, 1996, and as further amended, providing for the making of Loans to
the Borrowers and the issuance of, and participation in, Letters of Credit, all
as contemplated therein (as used herein, the term "Credit Agreement" means the
Credit Agreement described above in this paragraph, as the same has been, and
may from time to time in the future be, amended, modified, extended, renewed,
replaced, restated, supplemented or refinanced from time to time, and including
any agreement extending the maturity of, or refinancing or restructuring
(including, but not limited to, the inclusion of additional guarantors or
additional borrowers thereunder that are Subsidiaries of the Company and whose
obligations are guaranteed by the Company thereunder or any increase in the
amount borrowed) of all or any portion of, the Indebtedness under such agreement
or any successor agreements, whether or not with the same agent, trustee,
representative, financial institutions or holders; provided that, with respect
to any agreement providing for the refinancing or replacement of Indebtedness
under the Credit Agreement, such agreement shall only be treated as, or as part
of, the Credit Agreement hereunder if (i) either (A) all obligations under the
Credit Agreement being refinanced or replaced shall be paid in full at the time
of such refinancing or replacement, and all commitments and letters of credit
issued pursuant to the refinanced or replaced Credit Agreement shall have
terminated in accordance with their terms or (B) the Required Banks shall have
consented in writing to the refinancing or replacement Indebtedness being
treated, along with their Indebtedness, as Indebtedness pursuant to the Credit
Agreement, (ii) the refinancing Indebtedness shall be permitted to be incurred
under the Credit Agreement being refinanced (if such Credit Agreement is to
remain outstanding) and (iii) a notice to the effect that the refinancing or
replacement Indebtedness shall be treated as issued under the Credit Agreement
shall be delivered by the Company to the Pledgee);
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WHEREAS, the Company and its Subsidiaries may at any time and
from time to time enter into (or guarantee obligations under) one or more of the
following agreements: (i) interest rate protection agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements), (ii) foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements designed to protect against the fluctuations
in currency values and/or (iii) other types of hedging agreements from time to
time (collectively, the "Interest Rate Protection or Other Hedging Agreements")
with one or more Bank Creditors or affiliates of Bank Creditors (each such Bank
Creditor or affiliate, even if the respective Bank Creditor subsequently ceases
to be a Bank under the Credit Agreement for any reason, together with such Bank
Creditor's or affiliate's successors and assigns, collectively, the "Interest
Rate Protection Creditors");
WHEREAS, the Company may issue New Senior Notes and New Senior
Exchange Notes as provided in the Credit Agreement that may be (to the extent
permitted pursuant to the Credit Agreement) (x) guaranteed by various of the
Pledgors pursuant to a subsidiary guarantee (the "Senior Note Subsidiaries
Guaranty") and (y) equally and ratably secured hereunder with the Credit
Agreement Obligations as hereinafter provided (with any holders of New Senior
Notes and New Senior Exchange Notes from time to time being herein collectively
called "Senior Noteholders" and with all documentation evidencing any New Senior
Notes or New Senior Exchange Notes, including without limitation the indenture
and any Senior Note Subsidiaries Guaranty to be entered into in connection with
the New Senior Notes, being herein called "Senior Note Documents");
WHEREAS, each Pledgor is a direct or indirect Subsidiary of
the Company and, as such, will receive benefits from the above-described
extensions of credit;
WHEREAS, each Pledgor has entered into a guaranty dated as of
March 24, 1992 and amended and restated as of December 18, 1996 (the
"Subsidiaries Guaranty") pursuant to which each Pledgor has unconditionally
guaranteed any and all obligations and liabilities of the Company under, or with
respect to, the Credit Documents and the Interest Rate Protection or Other
Hedging Agreements;
WHEREAS, certain of the Pledgors have heretofore entered into
a Pledge Agreement, dated as of March 24, 1992 (as amended, modified or
supplemented prior to the date hereof, the "Original Subsidiaries Pledge
Agreement");
WHEREAS, it is a condition to the extensions of credit under
the Credit Agreement and to the obligations of the initial purchasers of the New
Senior Notes under the purchase agreement to be entered into in connection with
the issuance by the Company of the New Senior Notes that each Pledgor shall have
executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to execute this Agreement to (i)
satisfy the conditions described in the preceding paragraph and (ii) amend and
restate the Original Subsidiaries Pledge Agreement.
NOW, THEREFORE, in consideration of the extensions of credit
to be made to each Pledgor under the Credit Agreement and to the obligations of
the initial purchasers of the New Senior Notes under the purchase agreement to
be entered into in connection with the issuance by the Company of the New Senior
Notes and other benefits accruing to each Pledgor, the receipt and
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sufficiency of which are hereby acknowledged, each Pledgor hereby makes the
following representations and warranties to the Pledgee for the ratable benefit
of the Secured Creditors and hereby covenants and agrees with the Pledgee for
the ratable benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS, ETC. This Agreement is made by
each Pledgor for the ratable benefit of the Bank Creditors, the Interest Rate
Protection Creditors and the Senior Noteholders, in each case to the extent from
time to time holding Obligations (as defined below) of such Pledgor secured
hereunder (collectively, and together with the Pledgee, the "Secured
Creditors"), to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness of such Pledgor whether now existing or hereafter incurred
under, arising out of or in connection with the Subsidiaries Guaranty
and the due performance and compliance by such Pledgor with all of the
terms, conditions and agreements contained in the Subsidiaries Guaranty
(all such obligations, liabilities and indebtedness described in this
clause (i) being herein collectively called the "Credit Agreement
Obligations");
(ii) without duplication of the obligations, liabilities and
indebtedness covered by the foregoing clause (i), the full and prompt
payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would
become due), liabilities and indebtedness of such Pledgor to the
Interest Rate Protection Creditors, now existing or hereafter incurred
under, arising out of or in connection with any Interest Rate
Protection or Other Hedging Agreement (including, without limitation,
all such obligations and liabilities of such Pledgor under any
guarantee by it of obligations pursuant to any Interest Rate Protection
or Other Hedging Agreement), and the due performance of, and compliance
with, all of the terms, conditions and agreements contained therein by
such Pledgor (all such obligations, liabilities and indebtedness
described in this clause (ii) being herein collectively called the
"Interest Rate Protection Obligations");
(iii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness of such Pledgor whether now existing or hereafter incurred
under, arising out of or in connection with the Senior Note
Subsidiaries Guaranty and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in
the Senior Note Subsidiaries Guaranty (all such obligations,
liabilities and indebtedness described in this clause (iii) being
herein collectively called the "Senior Note Obligations");
(iv) (x) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral in a manner not in violation of the
terms hereof and (y) any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against the Pledgee
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in performing its duties hereunder, or in any way relating to or
arising out of its actions as Pledgee in respect of the Pledge
Agreement except for those resulting solely from the Pledgee's own
gross negligence or willful misconduct;
(v) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of such
Pledgor referred to in clauses (i) through (iv) above, after an Event
of Default (such term, as used in this Agreement, shall mean any Event
of Default at any time under, and as defined in, any of the Credit
Agreement and the Senior Note Documents and any payment default (after
the expiration of any applicable grace period) on any of the
Obligations (as defined below) secured hereunder at such time) shall
have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of
or realizing on the Collateral, or of any exercise by the Pledgee of
its rights hereunder, together with reasonable attorneys' fees and
court costs; and
(vi) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of
this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (vi) of this Section 1 being herein collectively called the
"Obligations;" provided that it is acknowledged and agreed that the
"Obligations" shall include extensions of credit of the types described above,
whether outstanding on the date of this Agreement or extended from time to time
after the date of this Agreement.
2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used
herein, (i) the term "Stock" shall mean (x) with respect to corporations
incorporated under the laws of the United States or any State or territory
thereof (other than Garlock Bearings, Inc.) (each a "Domestic Corporation"), all
of the issued and outstanding shares of capital stock of any Domestic
Corporation at any time owned by any Pledgor and (y) with respect to
corporations that are not Domestic Corporations (each a "Foreign Corporation"),
all of the issued and outstanding shares of capital stock of any Foreign
Corporation at any time owned by any Pledgor, provided that, except as provided
in the last sentence of this Section 2, each Pledgor shall not be required to
pledge hereunder more than 66% of the total combined voting power of all classes
of capital stock of any Foreign Corporation entitled to vote and (ii) the term
"Notes" shall mean (x) all promissory notes at any time issued to any Pledgor by
any of its Subsidiaries or Affiliates and (y) all other promissory notes from
time to time issued to, or held by, any Pledgor, provided that, except as
provided in the last sentence of this Section 2, no Pledgor shall be required to
pledge hereunder any promissory notes issued to such Pledgor by any Subsidiary
of such Pledgor which is a Foreign Corporation. As used herein, the term
"Securities" shall mean all of the Stock and Notes. Each Pledgor represents and
warrants, as to the stock of corporations and promissory notes owned by such
Pledgor, that on the Fifth Amendment Effective Date (a) the Stock of such
Pledgor consists of the number and type of shares of the stock of the
corporations as described under the name of such Pledgor in Part I of Annex A
hereto; (b) such Stock constitutes that percentage of the issued and outstanding
capital stock of the issuing corporation as is set forth in Part I of Annex A
hereto; (c) the Notes of such Pledgor consist of the promissory notes described
in Part II of Annex A hereto where such Pledgor is listed as the "Lender"; and
(d) such Pledgor is the holder of record and sole beneficial owner of the Stock
so shown under its name and there exist no options or preemption rights in
respect of any such Stock. In the circumstances and only to the extent provided
in Section 8.11 of the Credit Agreement, the 66% limitation set forth in
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clause (i)(y) and the limitation set forth in the proviso contained in clause
(ii) of this Section 2 and the last sentence of Section 3.2 shall no longer be
applicable.
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. To secure the Obligations and for the purposes
set forth in Section 1, each Pledgor hereby (i) grants to the Pledgee a security
interest in all of the Collateral, (ii) pledges and deposits as security with
the Pledgee the Securities owned by such Pledgor on the date hereof, and
delivers to the Pledgee certificates therefor, duly endorsed in blank in the
case of promissory notes and accompanied by undated stock powers duly executed
in blank by such Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such securities, with signatures appropriately
guaranteed) in the case of capital stock or such other instruments of transfer
as are acceptable to the Pledgee and (iii) assigns, transfers, hypothecates,
mortgages, charges and sets over to the Pledgee all of such Pledgor's right,
title and interest in and to such Securities (and in and to the certificates or
instruments evidencing such Securities), to be held by the Pledgee, upon the
terms and conditions set forth in this Agreement.
3.2. Subsequently Acquired Securities. If any Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional Securities at
any time or from time to time after the date hereof, such Pledgor will promptly
thereafter pledge and deposit such Securities (or certificates or instruments
representing Securities) as security with the Pledgee and deliver to the Pledgee
certificates or instruments therefor, duly endorsed in blank in the case of
promissory notes and accompanied by undated stock powers duly executed in blank
by such Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such securities, with signatures appropriately
guaranteed) in the case of capital stock, or such other instruments of transfer
as are acceptable to the Pledgee, and will promptly thereafter deliver to the
Pledgee a certificate executed by a principal executive officer of such Pledgor
describing such Securities and certifying that the same have been duly pledged
with the Pledgee hereunder. Subject to the last sentence of Section 2, no
Pledgor shall be required at any time to pledge hereunder any promissory notes
issued to such Pledgor by a Subsidiary of such Pledgor which is a Foreign
Corporation or more than 66% of the total combined voting power of all classes
of capital stock of any Foreign Corporation entitled to vote.
3.3. Uncertificated Securities. Notwithstanding anything to
the contrary contained in Sections 3.1 and 3.2, if any Securities (whether not
owned or hereafter acquired) are uncertificated securities, the respective
Pledgor shall promptly notify the Pledgee thereof, and shall promptly take all
actions required to perfect the security interest of the Pledgee under
applicable law. Each Pledgor further agrees to take such actions as the Pledgee
deems necessary or desirable to effect the foregoing and to permit the Pledgee
to exercise any of its rights and remedies hereunder, and agrees to provide an
opinion of counsel reasonably satisfactory to the Pledgee with respect to any
such pledge of uncertificated Securities promptly upon request of the Pledgee.
3.4. Definitions of Pledged Stock; Pledged Notes; Pledged
Securities and Collateral. (a) All Stock at any time pledged or required to be
pledged hereunder is hereinafter called the "Pledged Stock"; all Notes at any
time pledged or required to be pledged hereunder are hereinafter called the
"Pledged Notes"; all Pledged Stock and Pledged Notes together are called the
"Pledged Securities"; and the Pledged Securities together with all proceeds
thereof, including any securities and moneys received and at the time held by
the Pledgee hereunder, are hereinafter called the "Collateral."
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(b) If (i) a Bankruptcy Default or Notified Acceleration Event
(as each such term is defined in the Subsidiaries Security Agreement, provided,
however, references therein to "Assignor" and the "Collateral Agent" shall be
references to each Pledgor and the Pledgee, respectively) has occurred and is
continuing, or (ii) any other Event of Default or Acceleration Event (as each
such term is defined in the Subsidiaries Security Agreement, provided, however,
references therein to "Assignor" and the "Collateral Agent" shall be references
to each Pledgor and the Pledgee, respectively) has occurred and is continuing,
but in the case of this clause (b) only if, and to the extent that, the Pledgee
(acting at the direction of the Required Secured Creditors (as defined in Annex
B hereto)) has given notice to any Pledgor to take the actions specified below
in this sentence, then in either such case all cash proceeds of, and cash
payments received in respect of, Collateral shall be paid by such Pledgor (or
the respective payor) as directed by the Pledgee. At any time while the
circumstances described in the immediately preceding sentence do not exist, all
cash payments received in respect of the Collateral, but excluding cash proceeds
of sales of Collateral unless the respective sale and release of Collateral is
permitted pursuant to this Agreement and the Credit Agreement, shall be paid to
such Pledgor.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Securities, which may be held (in
the discretion of the Pledgee) in the name of the respective Pledgor, endorsed
or assigned in blank or in favor of the Pledgee or any nominee or nominees of
the Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO SPECIFIED EVENT OF DEFAULT. Unless
and until there shall have occurred and be continuing (i) a Bankruptcy Default
or Notified Acceleration Event or (ii) any other Event of Default or
Acceleration Event, but in the case of this clause (ii) only to the extent the
Pledgee (acting at the direction of the Required Secured Creditors) has so
notified each Pledgor, each Pledgor shall be entitled to vote any and all
Pledged Securities owned by it and to give consents, waivers or ratifications in
respect thereof, provided that no vote shall be cast or any consent, waiver or
ratification given or any action taken which would violate, result in a breach
of any covenant contained in, or be inconsistent with, any of the terms of this
Agreement, the Credit Agreement, any other Credit Document, any Interest Rate
Protection or Other Hedging Agreement or any Senior Note Document, or which
would have the effect of impairing the value of the Collateral (other than any
impairment in the form of a decline in the market value of a Pledged Security
which occurred solely as a result of any vote relating to the manner in which
the business of the corporation issuing such Pledged Security is to be conducted
to the extent such Pledgor shall have voted the Pledged Securities owned by it
in good faith and in accordance with its prudent business judgment) or any part
thereof or the rights, priorities, remedies, position or interests of the
Pledgee or any Secured Creditor. All such rights of each Pledgor to vote and to
give consents, waivers and ratifications shall cease in case either (i) a
Bankruptcy Default or Notified Acceleration Event shall occur and be continuing
or (ii) any other Event of Default or Acceleration Event has occurred and is
continuing but in the case of this clause (ii) only to the extent the Pledgee
(acting at the direction of the Required Secured Creditors) has so notified the
respective Pledgor, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing (i) a Bankruptcy Default or Notified
Acceleration Event or (ii) any other Event of Default or Acceleration Event, but
in the case of this clause (ii) only to the extent the Pledgee
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(acting at the direction of the Required Secured Creditors) has so notified the
respective Pledgor, all dividends and distributions payable in respect of the
Pledged Stock and all payments in respect of the Pledged Notes shall be paid to
the respective Pledgor. The Pledgee also shall be entitled to receive directly,
and to retain as part of the Collateral:
(a) all other or additional stock or securities paid or
distributed by way of dividend or otherwise, as the case may be, in
respect of the Pledged Stock;
(b) all other or additional stock or other securities paid or
distributed in respect of the Pledged Stock by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(c) all other or additional stock or other securities or
property (excluding cash) which may be paid in respect of the
Collateral by reason of any consolidation, merger, exchange of stock,
conveyance of assets, liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
and Section 7 shall be received in trust for the benefit of the Pledgee, shall
be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. REMEDIES IN CASE OF SPECIFIED EVENTS OF DEFAULT. If there
shall have occurred and be continuing (i) a Bankruptcy Default or Notified
Acceleration Event or (ii) any other Event of Default or Acceleration Event, but
in the case of this clause (ii) only to the extent the Required Secured
Creditors have so directed, then, and in every such case, the Pledgee shall be
entitled to exercise all of the rights, powers and remedies (whether vested in
it by this Agreement or any other Credit Document, any Interest Rate Protection
or Other Hedging Agreement or any Senior Note Documents, in each case to the
extent then in effect and secured hereby (with all of the documents listed above
being herein collectively called the "Secured Debt Documents") or by law) for
the protection and enforcement of its rights in respect of the Collateral, and
the Pledgee shall be entitled to exercise all the rights and remedies of a
secured party under the Uniform Commercial Code and also shall be entitled,
without limitation, to exercise the following rights, which each Pledgor hereby
agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 to any Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note;
(d) to vote all or any part of the Pledged Stock (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the
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Collateral and otherwise act with respect thereto as though it were the
outright owner thereof (each Pledgor hereby irrevocably constituting
and appointing the Pledgee the proxy and attorney-in-fact of such
Pledgor, with full power of substitution to do so); and
(e) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' notice of the time and place
of any such sale shall be given to such Pledgor. The Pledgee shall not
be obligated to make any such sale of Collateral regardless of whether
any such notice of sale has theretofore been given. Each Pledgor hereby
waives and releases to the fullest extent permitted by law any right or
equity of redemption with respect to the Collateral, whether before or
after sale hereunder, and all rights, if any, of marshalling the
Collateral and any other security for the Obligations or otherwise. At
any such sale, unless prohibited by applicable law, the Pledgee on
behalf of the Secured Creditors may bid for and purchase all or any
part of the Collateral so sold free from any such right or equity of
redemption. Neither the Pledgee nor any Secured Creditor shall be
liable for failure to collect or realize upon any or all of the
Collateral or for any delay in so doing nor shall any of them be under
any obligation to take any action whatsoever with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or any other Secured Debt
Document or now or hereafter existing at law or in equity or by statute shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Document or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. No notice to or demand
on any Pledgor in any case shall entitle such Pledgor to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Pledgee or any other Secured Creditor to any other or
further action in any circumstances without notice or demand. The Secured
Creditors agree that this Agreement may be enforced only by the action of the
Pledgee acting upon the instructions of the Required Secured Creditors and that
no other Secured Creditor shall have any right individually or as a group,
directly or indirectly, to seek to enforce or to enforce this Agreement or to
realize upon the security to be granted hereby or to cause the Pledgee or the
Required Secured Creditors to take or cause to be taken any action in respect of
this Agreement (except as expressly contemplated hereby), it being understood
and agreed that such rights and remedies may be exercised only by the Pledgee
for the ratable benefit of all Secured Creditors upon the terms and conditions
of this Agreement, it being further understood and agreed that nothing in this
Agreement shall affect the rights of the Secured Creditors to accelerate their
respective Obligations in accordance with their respective Secured Debt
Documents.
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9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent upon any sale or other disposition of the Collateral, together
with all other moneys received by the Collateral Agent hereunder, shall be
applied as follows:
(i) first, to the payment of all Obligations owing to the
Collateral Agent of the type provided in clauses (iv) and (v) of the
definition of Obligations;
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Primary Obligations shall be paid to the Secured
Creditors as provided in Section 9(e), with each Secured Creditor
receiving an amount equal to its outstanding Primary Obligations or, if
the proceeds are insufficient to pay in full all such Primary
Obligations, its Pro Rata Share of the amount remaining to be
distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an amount
equal to the outstanding Secondary Obligations shall be paid to the
Secured Creditors as provided in Section 9(e), with each Secured
Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement pursuant to
Section 18, to the respective Pledgor or to whomever may be lawfully
entitled to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount, without duplication, of such
Secured Creditor's Primary Obligations or Secondary Obligations, as the case may
be, of the respective Pledgor and the denominator of which is the then
outstanding amount of all Primary Obligations or Secondary Obligations, as the
case may be, of the respective Pledgor, (y) "Primary Obligations" shall mean (i)
in the case of the Subsidiaries Guaranty, all obligations and liabilities of
each Pledgor arising out of or in connection with the principal of, and interest
on, all Loans, all Unpaid Drawings theretofore made (together with all interest
accrued thereon), and the aggregate Stated Amounts of all Letters of Credit
issued (or deemed issued) under the Credit Agreement and outstanding, and all
Fees outstanding and unpaid at the relevant time, (ii) in the case of the Senior
Note Subsidiaries Guaranty, all obligations and liabilities of each Pledgor
arising out of or in connection with the principal of, and interest on, the New
Senior Notes and the New Senior Exchange Notes and (iii) in the case of the
Interest Rate Protection or Other Hedging Agreements, all amounts due under the
Interest Rate Protection or Other Hedging Agreements (other than indemnities,
fees (including, without limitation, attorneys' fees) and similar obligations
and liabilities), and (z) "Secondary Obligations" shall mean all Obligations
secured hereby other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes
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of making determinations under this Section 9 only) (i) first, to the Primary
Obligations and (ii) second, to the Secondary Obligations. If any payment to any
Secured Creditor of its Pro Rata Share of any distribution would result in
overpayment to such Secured Creditor, such excess amount shall instead be
distributed in respect of the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of the other Secured Creditors, with each
Secured Creditor whose Primary Obligations or Secondary Obligations, as the case
may be, have not been paid in full to receive an amount equal to such excess
amount multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured
Creditor and the denominator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of all Secured Creditors entitled to
such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Bank Creditors are to receive a distribution on account of undrawn
amounts with respect to Letters of Credit issued under the Credit Agreement,
such amounts shall be paid to the Paying Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Bank Creditors as such. If
any amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Bank Creditors after giving effect to the termination
of all such Letters of Credit, if there remains any excess cash, such excess
cash shall be returned by the Paying Agent to the Collateral Agent for
distribution in accordance with Section 9(a).
(e) Except as set forth in Section 9(d), all payments required
to be made here under shall be made (i) if to the Bank Creditors, to the Paying
Agent under the Credit Agreement for the account of the Bank Creditors, and (ii)
if to any other Secured Creditors (other than the Collateral Agent), to the
trustee, paying agent or other similar representative (each a "Representative")
for such Secured Creditors or, in the absence of such a Representative, directly
to the other Secured Creditors.
(f) For purposes of applying payments received in accordance
with this Section 9, the Collateral Agent shall be entitled to rely upon (i) the
Paying Agent under the Credit Agreement and (ii) the Representative for any
other Secured Creditors or, in the absence of such a Representative, upon the
respective Secured Creditors for a determination (which the Paying Agent, each
Representative for any other Secured Creditors and the Secured Creditors agree
(or shall agree) to provide upon request of the Collateral Agent) of the
outstanding Primary Obligations and Secondary Obligations owed to the Secured
Creditors. Unless it has actual knowledge (including by way of written notice
from a Representative for any Secured Creditor or directly from a Secured
Creditor) to the contrary, the Collateral Agent, in acting hereunder, shall be
entitled to assume that no Interest Rate Protection or Other Hedging Agreements
are in existence.
(g) It is understood and agreed that each Pledgor shall remain
liable to the extent of any deficiency between the amount of the proceeds of the
Collateral pledged by it hereunder and the aggregate amount of the Obligations
of such Pledgor.
Notwithstanding anything to the contrary in this Agreement (including Annex B),
(i) all actions required or permitted to be taken under this Agreement by the
Senior Noteholders shall be so taken only by the trustee under the indenture
under which the Senior Notes were issued on behalf of the Senior Noteholders
(the "Senior Notes Trustee") as directed by the Senior Noteholders and (ii) all
payments required to be made with respect to the Senior Note Obligations shall
be paid to the Senior
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Notes Trustee, and the Pledgee shall be entitled (but not required) to
conclusively rely upon and act in accordance with any instructions from the
Senior Notes Trustee subject to the terms and conditions of this Agreement and
to assume that such instructions are being given in accordance with such
indenture.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of sale proceeds by the
Pledgee or 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 Pledgee or such officer or be answerable in any
way for the misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees to
indemnify and hold harmless the Pledgee and each other Secured Creditor (other
than the Senior Noteholders) and their respective successors, assigns,
employees, agents, servants and Representatives (including the Administrative
Agent) hereunder (individually an "Indemnitee," and collectively the
"Indemnitees") from and against any and all claims, demands, losses, judgments
and liabilities (including liabilities for penalties) of whatsoever kind or
nature, and to reimburse each Indemnitee for all costs and expenses, including
reasonable attorneys' fees, in each case growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under the other Credit Documents or the Interest Rate Protection
and Other Hedging Agreements, provided that the Pledgors shall not be required
to indemnify any Indemnitee in respect of any claims, demands, losses,
judgments, liabilities, costs or expenses to the extent arising from the gross
negligence or willful misconduct of such Indemnitee. In no event shall any
Indemnitee be liable, in the absence of gross negligence or willful misconduct
on its part, for any matter or thing in connection with this Agreement other
than to account for moneys actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of the Pledgors under this
Section 11 are unenforceable for any reason, each Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the applicable Uniform Commercial Code or
other applicable law such financing statements, continuation statements and
other documents in such offices as the Pledgee may deem necessary or appropriate
and wherever required or permitted by law in order to perfect and preserve the
Pledgee's security interest in the Collateral and hereby authorizes the Pledgee
to file financing statements and amendments thereto relative to all or any part
of the Collateral without the signature of such Pledgor where permitted by law,
and agrees to do such further acts and things and to execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and instruments as
the Pledgee may reasonably require or deem advisable to carry into effect the
purposes of this Agreement or to further assure and confirm unto the Pledgee its
rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee as its
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's
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discretion to take any action and to execute any instrument which the Pledgee
may reasonably deem necessary or advisable to accomplish the purposes of this
Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed that the obligations of the
Pledgee as holder of the Collateral and interests therein and with respect to
the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement. The Pledgee shall act hereunder on the
terms and conditions set forth in Annex B hereto, the terms of which shall be
deemed incorporated herein by reference as fully as if same were set forth
herein in their entirety.
14. TRANSFER BY PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the Credit Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGORS.
Each Pledgor represents and warrants that (a) it is, or at the time when pledged
hereunder will be, the legal, record and beneficial owner of, and has (or will
have) good and marketable title to, all Securities pledged by it hereunder,
subject to no Lien, except the Lien created by this Agreement; (b) it has full
corporate power, authority and legal right to pledge all the Securities pledged
by it pursuant to this Agreement; (c) this Agreement has been duly authorized,
executed and delivered by such Pledgor and constitutes a legal, valid and
binding obligation of such Pledgor enforceable in accordance with its terms
except to the extent the enforceability hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a proceeding
in equity or at law); (d) except to the extent already obtained, no consent of
any other party (including, without limitation, any stockholder or creditor of
such Pledgor or any of its Subsidiaries) and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is required
to be obtained by such Pledgor in connection (i) with the execution, delivery or
performance of this Agreement, (ii) the validity or enforceability of this
Agreement, (iii) the perfection or enforceability of the Pledgee's security
interest in the Collateral or (iv) the exercise by the Pledgee of any of its
rights or remedies provided herein; (e) the execution, delivery and performance
of this Agreement will not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign applicable to such
Pledgor, or of the Certificate of Incorporation or By-Laws of such Pledgor or of
any securities issued by such Pledgor or any of its Subsidiaries, or of any
mortgage, indenture, lease, loan agreement, credit agreement or other material
contract, agreement or instrument or undertaking to which such Pledgor or any of
its Subsidiaries is a party or which purports to be binding upon such Pledgor or
any of its Subsidiaries or upon any of their respective assets and will not
result in the creation or imposition of any Lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated by this
Agreement; (f) all the shares of the Stock have been duly and validly issued,
are fully paid and nonassessable and are subject to no options to purchase or
similar rights; (g) each of the Pledged Notes, when executed by the obligor
thereof, will be the legal, valid and binding obligation of such obligor,
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors' rights
and equitable principles (regardless
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of whether enforcement is sought in equity or at law); and (h) the pledge,
assignment and delivery of the Securities pursuant to this Agreement creates a
valid and perfected first priority Lien in such Securities, and the proceeds
thereof (other than any cash proceeds thereof to the extent not required to be
delivered to the Pledgee pursuant to the terms hereof), subject to no Lien or to
any agreement purporting to grant to any third party a Lien on the property or
assets of such Pledgor which would include the Securities. Each Pledgor
covenants and agrees that it will defend the Pledgee's right, title and security
interest in and to the Securities and the proceeds thereof against the claims
and demands of all Persons whomsoever; and each Pledgor covenants and agrees
that it will have like title to and right to pledge any other property at any
time hereafter pledged to the Pledgee as Collateral hereunder and will likewise
defend the right thereto and security interest therein of the Pledgee and the
other Secured Creditors.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Document or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; (v) any
limitation on any other Pledgor's liability or obligations under this Agreement,
the Subsidiaries Guaranty, the Senior Note Subsidiaries Guaranty or any other
Secured Debt Document or any invalidity or unenforceability, in whole or in
part, of this Agreement, the Subsidiaries Guaranty, the Senior Note Subsidiaries
Guaranty or any other Secured Debt Documents or any term thereof; or (vi) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Pledgor or any Subsidiary
of such Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
17. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing (i) a Bankruptcy Default or Notified Acceleration Event or (ii) any
other Event of Default or Acceleration Event, but in the case of this clause
(ii) only to the extent the Required Secured Creditors have so directed then,
and in every such case, upon receipt by any Pledgor from the Pledgee of a
written request or requests that such Pledgor cause any registration,
qualification or compliance under any Federal or state securities law or laws to
be effected with respect to all or any part of the Pledged Stock, such Pledgor
as soon as practicable and at its expense will use its best efforts to cause
such registration to be effected (and be kept effective) and will use its best
efforts to cause such qualification and compliance to be effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Pledged Stock, including, without limitation, registration
under the Securities Act of 1933, as then in effect (or any similar statute then
in effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, provided, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may request in writing and as
shall be required in
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connection with any such registration, qualification or compliance. Such Pledgor
will cause the Pledgee to be kept reasonably advised in writing as to the
progress of each such registration, qualification or compliance and as to the
completion thereof, will furnish to the Pledgee such number of prospectuses,
offering circulars or other documents incident thereto as the Pledgee from time
to time may reasonably request, and will indemnify the Pledgee and all others
participating in the distribution of such Pledged Stock against all claims,
losses, damages and liabilities caused by any untrue statement (or alleged
untrue statement) of a material fact contained therein (or in any related
registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to such Pledgor by the Pledgee expressly for
use therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Pledged Securities pursuant to
Section 7, such Pledged Securities or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933, as then in effect, the Pledgee may, in its sole and absolute discretion,
sell such Pledged Securities or part thereof by private sale in such manner and
under such circumstances as Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Pledged Securities or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Pledged
Securities or part thereof. In the event of any such sale, the Pledgee shall
incur no responsibility or liability for selling all or any part of the Pledged
Securities at a price which the Pledgee, in its sole and absolute discretion,
may in good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the sale were
deferred until after registration as aforesaid.
18. TERMINATION; RELEASE. (a) After the Termination Date (as
defined below), without any action on the part of any Secured Creditor, this
Agreement shall terminate and be of no further force or effect (provided that
all indemnities set forth herein including, without limitation, in Section 11
hereof shall survive any such termination) and the Pledgee, at the request and
expense of the respective Pledgor, will execute and deliver to such Pledgor a
proper instrument or instruments acknowledging the satisfaction and termination
of this Agreement, and will duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral of such Pledgor as may be in the possession of the Pledgee and has
not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any moneys at the time held by the Pledgee hereunder.
As used in this Agreement, "Termination Date" shall mean the first to occur of
(i) that date upon which the Total Commitment and all Interest Rate Protection
or Other Hedging Agreements have been terminated, no Note under the Credit
Agreement is outstanding, all Letters of Credit have been terminated and all
other Credit Agreement Obligations (excluding normal continuing indemnity
obligations which survive in accordance with their terms, so long as no amounts
are then due and payable in respect thereof) then owing by the Pledgors have
been paid in full, (ii) that date upon which the Collateral is automatically
released pursuant to the first sentence
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of Section 26 of Part I of the Fifth Amendment to Credit Agreement or the
Administrative Agent directs the Pledgee to release the Collateral pursuant to
the second sentence of Section 26 of Part I of the Fifth Amendment to the Credit
Agreement and (iii) that date upon which the Credit Documents are amended to
release all Collateral subject to this Agreement.
(b) In the event that any Pledgor is released from its
obligations pursuant to the Subsidiaries Guaranty in accordance with the terms
thereof, then such Pledgor shall cease to be a Pledgor hereunder and the
Pledgee, at the request and expense of the respective Pledgor, will execute and
deliver to such Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement as to such Pledgor, and will duly
assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral pledged by such Pledgor as
may be in possession of the Pledgee and has not theretofore been sold or
otherwise applied or released pursuant to this Agreement, together with any
moneys of such Pledgor at the time held by the Pledgee hereunder.
(c) It is expressly acknowledged and agreed that the
Collateral may be sold from time to time to the extent permitted by, and in
accordance with the terms of, the Credit Agreement. In addition, it is expressly
acknowledged and agreed that any or all of the Collateral may be released by the
Pledgee acting at the direction of the Required Secured Creditors. Upon any sale
of the type described in the second preceding sentence or release of any such
Collateral as provided in the immediately preceding sentence, the Pledgee shall,
at the request and expense of the respective Pledgor, and without the further
consent of, or liability to, any Secured Creditor, release such Collateral and
execute and deliver to such Pledgor a proper instrument or instruments
acknowledging the release of such Collateral from this Agreement, and will duly
assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) the Collateral being sold or released as described
above. Notwithstanding anything to the contrary contained above in this Section
18(c), in the event the Senior Notes Trustee shall have notified the Pledgee in
writing that the Senior Note Obligations have been accelerated in accordance
with the terms of the Senior Note Documents (and (x) the Senior Note Obligations
have not been paid in full and (y) the respective acceleration has not been
rescinded), the Collateral Agent shall not thereafter release any Collateral
pursuant to this Section 18(c) or consent to any termination of this Agreement,
except in each case with the prior written consent of the Senior Noteholders
holding a majority of the then outstanding Senior Note Obligations secured
hereby (or following the payment in full of the Senior Note Obligations or the
rescission of the respective acceleration).
(d) At any time that any Pledgor desires that Collateral be
released as provided in the foregoing Section 18(a), (b) or (c), it shall
deliver to the Pledgee a certificate signed by its chief financial officer
stating that the release of the respective Collateral is permitted pursuant to
such Section 18(a), (b) or (c), and the Pledgee shall be entitled (but not
required) to conclusively rely thereon. If requested by the Pledgee (although
the Pledgee shall have no obligation to make any such request), such Pledgor
shall furnish appropriate legal opinions (from counsel acceptable to the
Pledgee) to the effect set forth in the immediately preceding sentence.
(e) Notwithstanding anything to the contrary contained above,
upon the presentment of satisfactory evidence to the Pledgee in its sole
discretion that all obligations evidenced by any Pledged Note have been repaid
in full, and that any payments received by any Pledgor were permitted to be
received by such Pledgor pursuant to Section 6 hereof, the Pledgee shall, upon
the
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request and at the expense of the respective Pledgor, duly assign, transfer and
deliver to such Pledgor (without recourse and without any representation or
warranty) such Pledged Note if same is then in the possession of the Pledgee and
has not theretofore been sold or otherwise applied or released pursuant to this
Agreement. The Pledgee shall have no liability whatsoever to any Secured
Creditor as the result of any release of Collateral by it as permitted by this
Section 18. Upon any release of Collateral pursuant to Section 18(a), (b), (c),
(d) or (e), none of the Secured Creditors shall have any continuing right or
interest in such Collateral or the proceeds thereof.
19. NOTICES, ETC. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by first class
mail, postage prepaid, addressed as follows:
(a) if to any Pledgor, at the address set forth opposite its
signature below:
with a copy to:
Coltec Industries Inc
3 Coliseum Center
2550 West Tyvola Road
Charlotte, North Carolina 28217
Attention: Thomas B. Jones, Jr.
Telephone: (704) 423-7052
Facsimile: (704) 423-7127
(b) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Mary Kay Coyle
Telephone: (212) 250-9094
Facsimile: (212) 250-7200
(c) if to any Bank Creditor (other than the Pledgee), either
(x) to the Administrative Agent, at the address of the Administrative
Agent specified in the Credit Agreement or (y) at such address as such
Bank Creditor shall have specified in the Credit Agreement;
(d) if to any other Secured Creditor, either (x) to the
Representative for such Secured Creditor at such address as such
Representative may have provided to the Pledgors and the Pledgee from
time to time, or (y) in the absence of such a Representative, directly
to such Secured Creditor at such address as such Secured Creditor shall
have specified in writing to each Pledgor and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
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20. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly affected
thereby (it being understood that additional Pledgors may be added as parties
hereto from time to time in accordance with the Credit Agreement and Pledgors
may be released as parties hereto in accordance with Section 18(b), and that no
consent of any other Pledgor or of the Secured Creditors shall be required in
connection therewith) and the Pledgee (with the written consent of the Required
Banks (or all the Banks if required by Section 13.12 of the Credit Agreement));
provided, however, that any change, waiver, modification or variance materially
adversely affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Class Creditors (as
defined below) of such affected Class; provided, further, that any Class shall
not be considered to be affected differently from any other Class due to the
Obligations of any such other Class being paid, repaid, refinanced, renewed or
extended and the Collateral being released, in whole or in part (whether by
action of such other Class or otherwise), as security for such Class and such
other Class. Notwithstanding anything to the contrary contained above, it is
understood and agreed that the Required Banks may agree to modifications to this
Agreement for the purpose, among other things, of securing additional extensions
of credit (including, without limitation, pursuant to the Credit Agreement or
any refinancing or extension thereof). For the purpose of this Agreement, the
term "Class" shall mean, at any time, each class of Secured Creditors with
outstanding Obligations secured hereby at such time, i.e., (x) the Bank
Creditors as holders of the Credit Agreement Obligations secured hereby, (y) the
Senior Noteholders as the holders of Senior Note Obligations secured hereby or
(z) the Interest Rate Protection Creditors as the holders of the Interest Rate
Protection Obligations secured hereby; provided that, without limiting the
foregoing, it is expressly acknowledged and agreed that other creditors may be
added as "Secured Creditors" hereunder (either as part of an existing Class of
creditors or as a newly created Class) with the consent of the Required Secured
Creditors, and that such addition shall not require the written consent of the
Requisite Class Creditors of the various Classes. For the purpose of this
Agreement, the term "Requisite Class Creditors" of any Class shall mean each of
(i) with respect to the Credit Agreement Obligations, the Required Banks and
(ii) with respect to any other Obligations, the holders of at least a majority
of all Obligations outstanding from time to time.
21. MISCELLANEOUS. This Agreement shall be binding upon the
respective successors and assigns of each Pledgor and shall inure to the benefit
of and be enforceable by the Pledgee and its successors and assigns; provided
that no Pledgor may assign any of its rights or obligations hereunder without
the prior written consent of the Pledgee (with the consent of the Required
Secured Creditors). THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings in this
Agreement are for purposes of reference only and shall not limit or define the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument. In the event that any provision of this Agreement shall prove to be
invalid or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all parties
hereto.
22. AMENDMENT AND RESTATEMENT. Upon the execution and delivery
of this Agreement by the parties hereto, the Original Subsidiaries Pledge
Agreement shall be amended, restated and superseded in its entirety by this
Agreement, effective as of the date hereof, with all
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rights, obligations and security interests created under or granted pursuant to
the Original Subsidiaries Pledge Agreement continuing from the date thereof.
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IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed and delivered by their duly elected officers duly
authorized as of the date first above written.
Address:
AMI INDUSTRIES INC, as a Pledgor
By____________________________
Name:
Title:
CII HOLDINGS INC, as a Pledgor
By____________________________
Name:
Title:
COLTEC CANADA INC,
as a Pledgor
By____________________________
Name:
Title:
COLTEC INDUSTRIAL PRODUCTS INC,
as a Pledgor
By____________________________
Name:
Title:
COLTEC NORTH CAROLINA INC,
as a Pledgor
By____________________________
Name:
Title:
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COLTEC TECHNICAL SERVICES INC,
as a Pledgor
By____________________________
Name:
Title:
DELAVAN INC, as a Pledgor
By____________________________
Name:
Title:
GARLOCK INC, as a Pledgor
By____________________________
Name:
Title:
GARLOCK INTERNATIONAL INC,
as a Pledgor
By____________________________
Name:
Title:
GARLOCK OVERSEAS CORPORATION,
as a Pledgor
By____________________________
Name:
Title:
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21
HABER TOOL COMPANY INC, as a Pledgor
By____________________________
Name:
Title:
HOLLEY PERFORMANCE PRODUCTS INC,
as a Pledgor
By____________________________
Name:
Title:
JAMCO PRODUCTS, LLC, as a Pledgor
By____________________________
Name:
Title:
MENASCO AEROSYSTEMS INC,
as a Pledgor
By____________________________
Name:
Title:
COLTEC INTERNATIONAL SERVICES
CO., as a Pledgor
By____________________________
Name:
Title:
22
22
STEMCO INC, as a Pledgor
By____________________________
Name:
Title:
WALBAR INC, as a Pledgor
By____________________________
Name:
Title:
BANKERS TRUST COMPANY, as Pledgee
By____________________________
Name:
Title:
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ANNEX A
ANNEX A
LIST OF PLEDGES STOCK AND PLEDGED NOTES
Part I. Pledged Stock
Percentage of
Name of Issuing Corporation Type of Shares Number of Shares Outstanding Shares of
Capital Stock
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2
Part II. Pledged Notes
Principal
Lender Borrower Amount
25
3
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ANNEX B
ANNEX B
THE PLEDGEE
1. Appointment. The Secured Creditors, by their acceptance of
the benefits of the Subsidiaries Pledge Agreement to which this Annex B is
attached (the "Pledge Agreement") hereby irrevocably designate the Collateral
Agent (and any successor Pledgee) to act as Pledgee as specified herein and
therein. Unless otherwise defined herein, all capitalized terms used herein (x)
and defined in the Pledge Agreement, are used herein as therein defined and (y)
not defined in the Pledge Agreement, are used herein as defined in the Credit
Agreement referenced in the Pledge Agreement. Each Secured Creditor hereby
irrevocable authorizes, and each holder of any Obligation by the acceptance of
such Obligation and by the acceptance of the benefits of the Pledge Agreement
shall be deemed irrevocably to authorize, the Pledgee to take such action on its
behalf under the provisions of the Pledge Agreement and any instruments and
agreements referred to therein and to exercise such powers and to perform such
duties thereunder as are specifically delegated to or required of the Pledgee by
the terms thereof and such other powers as are reasonably incidental thereto.
The Pledgee may perform any of its duties hereunder or thereunder by or through
its authorized agents, sub-agents or employees.
2. Nature of Duties. (a) The Pledgee shall have no duties or
responsibilities except those expressly set forth herein or in the Pledge
Agreement. The duties of the Pledgee shall be mechanical and administrative in
nature; the Pledgee (in such capacity) shall not have by reason of this
Agreement, any other Credit Document or any other Secured Debt Document a
fiduciary relationship in respect of any Secured Creditor; and nothing in this
Agreement, any other Credit Document or any other Secured Debt Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Pledgee any obligations in respect of the Pledge Agreement except as
expressly set forth herein and therein.
(b) The Pledgee shall not be responsible for insuring the Collateral or
for the payment of taxes, charges or assessments or discharging of Liens upon
the Collateral or otherwise as to the maintenance of the Collateral.
(c) The Pledgee shall not be required to ascertain or inquire as to the
performance by any Pledgor of any of the covenants or agreements contained in
the Pledge Agreement, any other Credit Document or any other Secured Debt
Document.
(d) The Pledgee shall be under no obligation or duty to take any action
under, or with respect to, the Pledge Agreement if taking such action (i) would
subject the Pledgee to a tax in any jurisdiction where it is not then subject to
a tax , (ii) would require the Pledgee to qualify to do business, or obtain any
license, in any jurisdiction where it is not then so qualified or licensed or
(iii) would subject the Pledgee to in personam jurisdiction in any locations
where it is not then so subject.
(e) Notwithstanding any other provision of this Annex B, neither the
Pledgee nor any of its officers, directors, employees, affiliates or agents
shall, in its individual capacity, be personally liable for any action taken or
omitted to be taken by it in accordance with, or pursuant to this Annex B or the
Pledge Agreement except for its own gross negligence or willful misconduct.
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3. Lack of Reliance on the Pledgee. Independently and without reliance
upon the Pledgee, each Secured Creditor, to the extent it deems appropriate, has
made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of each Pledgor and its Subsidiaries in
connection with the making and the continuance of the Obligations and the taking
or not taking of any action in connection therewith and (ii) its own appraisal
of the creditworthiness of each Pledgor and its Subsidiaries, and the Pledgee
shall have no duty or responsibility, either initially or on a continuing basis,
to provide any Secured Creditor with any credit or other information with
respect thereto, whether coming into its possession before the extension of any
Obligations or the purchase of any notes or at any time or times thereafter. The
Pledgee shall not be responsible in any manner whatsoever to any Secured
Creditor for the correctness of any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of the Pledge Agreement or the security interests granted thereunder
or the financial condition of any Pledgor or any Subsidiary of any Pledgor or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of the Pledge Agreement, or the
financial condition of any Pledgor or any Subsidiary of any Pledgor, or the
existence or possible existence of any default or event of default. The Pledgee
makes no representations as to the value or condition of the Collateral or any
part thereof, or as to the title of any Pledgor thereto or as to the security
afforded by the Pledge Agreement.
4. Certain Rights of the Pledgee. (a) No Secured Creditor
shall have the right to cause the Pledgee to take any action with respect to the
Collateral, with only the Required Secured Creditors having the right to direct
the Pledgee to take any such action, it being understood and agreed that nothing
in this Annex B shall affect the rights of the Secured Creditors to accelerate
their respective Obligations in accordance with their respective Secured Debt
Documents. If the Pledgee shall request instructions from the Required Secured
Creditors, with respect to any act or action (including failure to act) in
connection with the Pledge Agreement, the Pledgee shall be entitled to refrain
from such act or taking such action unless and until it shall have received
instructions from the Required Secured Creditors and to the extent requested,
appropriate indemnification in respect of actions to be taken, and the Pledgee
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Secured Creditor shall have any right of action
whatsoever against the Pledgee as a result of the Pledgee acting or refraining
from acting hereunder in accordance with the instructions of the Required
Secured Creditors. As used herein, the term "Required Secured Creditors" shall
mean the Required Banks (or, to the extent required by Section 13.12 of the
Credit Agreement, all of the Banks). Notwithstanding anything to the contrary
contained in the immediately preceding sentence, if at any time the principal of
any Obligations secured hereby has been accelerated, or the final maturity date
with respect to any such principal Obligations has occurred, and as a result
thereof one or more payment Events of Default (where the aggregate principal
amount of such Obligations accelerated or not paid at final maturity equals or
exceeds $100,000,000), which payment Events of Default shall have continued in
existence for at least 90 consecutive days after the date of such acceleration
or final maturity, and the Required Secured Creditors at such time (determined
without regard to this sentence) have not directed the Pledgee to commence
enforcement proceedings pursuant to the Pledge Agreement, then so long as such
payment Event of Default is continuing the Secured Creditors holding at least a
majority of the outstanding Obligations secured hereby subject to such payment
Event of Default shall constitute the Required Secured Creditors for purposes of
causing the Pledgee to commence enforcement proceedings pursuant to the Pledge
Agreement, provided that in such event the Secured Creditors which would
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constitute the Required Secured Creditors in the absence of this sentence shall
have the right to direct the manner and method of enforcement so long as such
directions do not materially delay or impair the taking of enforcement action.
(b) Notwithstanding anything to the contrary contained herein, the
Pledgee is authorized, but not obligated, (i) to take any action reasonably
required to perfect or continue the perfection of the Liens on the Collateral
for the benefit of the Secured Creditors and (ii) when instructions from the
Required Secured Creditors have been requested by the Pledgee but have not yet
been received, to take any action which the Pledgee, in good faith, believes to
be reasonably required to promote and protect the interests of the Secured
Creditors in the Collateral; provided that once instructions have been received,
the actions of the Pledgee shall be governed thereby and the Pledgee shall not
take any further action which would be contrary thereto.
(c) Notwithstanding anything to the contrary contained herein or in
the Pledge Agreement, the Pledgee shall not be required to take any action that
exposes or, in the good faith judgment of the Pledgee may expose, the Pledgee or
its officers, directors, agents or employees to personal liability, unless the
Pledgee shall be adequately indemnified as provided herein, or that is, or in
the good faith judgment of the Pledgee may be, contrary to the Pledge Agreement,
any Secured Debt Document or applicable law.
5. Reliance. The Pledgee shall be entitled to rely, and shall be fully
protected in relying, upon, any note, writing, resolution, notice, statement,
certificate, telex, teletype message, cablegram, radiogram, order or other
document or telephone message signed, sent or made by the proper Person or
entity, and, with respect to all legal matters pertaining hereto or to the
Pledge Agreement and its duties thereunder and hereunder, upon advice of counsel
selected by it.
6. Indemnification. To the extent the Pledgee is not reimbursed and
indemnified by the Pledgors under the Pledge Agreement, the Secured Creditors
(other than the Senior Noteholders) will reimburse and indemnify the Pledgee, in
proportion to their respective outstanding principal amounts (including, for
this purpose, the Stated Amount of outstanding Letters of Credit, as well as any
unpaid Primary Obligations in respect of Interest Rate Protection or Other
Hedging Agreements, as outstanding principal) of Obligations, for and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the Pledgee
in performing its duties hereunder, or in any way relating to or arising out of
its actions as Pledgee in respect of the Pledge Agreement except for those
resulting solely from the Pledgee's own gross negligence or willful misconduct.
The indemnities set forth in this Section 6 shall survive the repayment of all
Obligations, with the respective indemnification at such time to be based upon
the outstanding principal amounts (determined as described above) of Obligations
at the time of the respective occurrence upon which the claim against the
Pledgee is based or, if same is not reasonably determinable, based upon the
outstanding principal amounts (determined as described above) of Obligations as
in effect immediately prior to the termination of the Pledge Agreement. The
indemnities set forth in this Section 6 are in addition to any indemnities
provided by the Banks to the Pledgee pursuant to the Credit Agreement, with the
effect being that the Banks shall be responsible for indemnifying the Pledgee to
the extent the Pledgee does not receive payments pursuant to this Section 6 from
the Secured Creditors (other than the Senior Noteholders) (although in such
event, and
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4
upon the payment in full of all such amounts owing to the Pledgee by the Banks,
the Banks shall be subrogated to the rights of the Pledgee to receive payment
from such Secured Creditors).
7. The Pledgee in its Individual Capacity. With respect to its
obligations as a lender under the Credit Agreement and any other Credit
Documents to which the Pledgee is a party, and to act as agent under one or more
of such Credit Documents, the Pledgee shall have the rights and powers specified
therein and herein for a "Bank", or an "Agent", as the case may be, and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the terms "Banks," "Required Banks," "holders of Notes,"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Pledgee in its individual capacity. The Pledgee and its affiliates
may accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with any Pledgor or any
Affiliate or Subsidiary of any Pledgor as if it were not performing the duties
specified herein or in the other Credit Documents, and may accept fees and other
consideration from the Pledgors for services in connection with the Credit
Agreement, the other Credit Documents and otherwise without having to account
for the same to the Secured Creditors.
8. Holders. The Pledgee may deem and treat the payee of any note as
the owner thereof for all purposes hereof unless and until written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have been
filed with the Pledgee. Any request, authority or consent of any person or
entity who, at the time of making such request or giving such authority or
consent, is the holder of any note, shall be final and conclusive and binding on
any subsequent holder, transferee, assignee or endorsee, as the case may be, of
such note or of any note or notes issued in exchange therefor.
9. Resignation by the Pledgee. (a) The Pledgee may resign from the
performance of all of its functions and duties hereunder and under the Pledge
Agreement at any time by giving 15 Business Days' prior written notice to the
Company and the Secured Creditors. Such resignation shall take effect upon the
appointment of a successor Pledgee pursuant to Section 9(b) or (c) below.
(b) If a successor Pledgee shall not have been appointed within said
15 Business Day period by the Required Secured Creditors, the Pledgee, with the
consent of the Pledgors, which consent shall not be unreasonably withheld or
delayed, shall then appoint a successor Pledgee who shall serve as Pledgee
hereunder or thereunder until such time, if any, as the Required Secured
Creditors appoint a successor Pledgee as provided above.
(c) If no successor Pledgee has been appointed pursuant to Section
9(b) above by the 15th Business Day after the date of such notice of resignation
was given by the Pledgee, as a result of a failure by the Company to consent to
the appointment of such a successor Pledgee, the Required Secured Creditors
shall then appoint a successor Pledgee who shall serve as Pledgee hereunder or
thereunder until such time, if any, as the Required Secured Creditors appoint a
successor Pledgee as provided above.