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EXHIBIT 10.10(d)
COMPANY PLEDGE AGREEMENT
THIS COMPANY PLEDGE AGREEMENT (this "Agreement") dated as of May 6,
1994, is between LARIZZA INDUSTRIES, INC., an Ohio corporation (the "Company"),
and CONTINENTAL BANK N.A. in its capacity as agent for the Banks referred to
below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of even date herewith
(as amended or otherwise modified from time to time, the "Credit Agreement")
among the Company, various financial institutions (such financial institutions,
together with their respective successors and assigns, collectively the "Banks"
and individually each a "Bank") and the Agent, the Banks have agreed to make
loans to, and issue or participate in letters of credit for the account of, the
Company from time to time; and
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreement that the Company
execute and deliver this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance, issuance
of letters of credit or other financial accommodation heretofore or hereafter
made to the Company under or in connection with the Credit Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, the following terms have the
following meanings (such meanings to be applicable to both the singular and
plural forms of such terms):
Agent - see Preamble.
Collateral - see Section 2.
Default means the occurrence of any of the following events: (a) any
Unmatured Event of Default under Section 12.1.4 of the Credit Agreement; or
(b) any Event of Default.
Event of Default has the meaning assigned to such term in the Credit
Agreement.
Issuer means the issuer of any of the shares of stock or other
securities representing all or any of the Collateral.
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Letter of Credit means any letter of credit issued pursuant to the
Credit Agreement.
Liabilities means all obligations (monetary or otherwise) of the
Company, howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to
become due, which arise out of or in connection with the Credit Agreement,
the Notes, this Agreement, the Letters of Credit, the Letter of Credit
Applications, any other Loan Document or any other document or instrument
executed in connection therewith (including any Hedging Agreement (as
defined in the Credit Agreement) entered into with any Bank or any
affiliate thereof).
Loan Document has the meaning assigned to such term in the Credit
Agreement.
Unmatured Event of Default has the meaning assigned to such term in the
Credit Agreement.
2. Pledge. As security for the payment of all Liabilities, the Company
hereby pledges to the Agent for the benefit of the Banks and the Agent, and
grants to the Agent for the benefit of the Banks and the Agent a continuing
security interest in, all of the following:
A. All of the shares of stock and other securities described in
Schedule I hereto as pledged, all of the certificates and/or instruments
representing such shares of stock and other securities, and all cash,
securities, dividends, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares or other securities;
B. All additional shares of stock of any of the Issuers listed in
Schedule I hereto at any time and from time to time acquired by the Company
in respect of the stock and other securities described in Schedule I as
pledged, all of the certificates representing such additional shares, and
all cash, securities, dividends, rights and other property at any time and
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such shares;
C. All other property hereafter delivered to the Agent in substitution
for or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such property, and all cash,
securities, interest, dividends, rights and other property at any time
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and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof; and
D. All products and proceeds of all of the foregoing;
provided, however in no event shall the shares of stock of Manchester Plastics,
Ltd. pledged hereunder exceed 65% of its issued and outstanding stock.
All of the foregoing are herein collectively called the "Collateral".
The Company agrees to deliver to the Agent, promptly upon receipt and
in due form for transfer (i.e., endorsed in blank or accompanied by stock or
bond powers executed in blank), any Collateral which may at any time or from
time to time be in or come into the possession or control of the Company; and
prior to the delivery thereof to the Agent, such Collateral shall be held by
the Company separate and apart from its other property and in express trust for
the Agent.
3. Warranties; Further Assurances. The Company warrants to the Agent
and each Bank that: (a) the Company is (or at the time of any future delivery,
pledge, assignment or transfer thereof will be) the legal and equitable owner
of the Collateral free and clear of all liens, security interests and
encumbrances of every description whatsoever other than the security interest
created hereunder; (b) the pledge and delivery of the Collateral pursuant to
this Agreement will create a valid perfected security interest in the
Collateral in favor of the Agent; (c) all shares of stock referred to in
Schedule I hereto are duly authorized, validly issued, fully paid and
non-assessable; (d) as to each Issuer whose name appears in Schedule I hereto,
the Collateral represents on the date hereof not less than the applicable
percent (as shown in Schedule I hereto) of the total shares of capital stock
issued and outstanding of such Issuer; and (e) the information contained in
Schedule I hereto is true and accurate in all respects.
So long as any of the Liabilities shall be outstanding or any
commitment shall exist on the part of any Agent or any Bank with respect to the
creation of any Liabilities, the Company (i) shall not, without the express
prior written consent of the Agent, (x) sell, assign, exchange, pledge or
otherwise transfer, encumber, or grant any option, warrant or other right to
purchase the stock of any Issuer which is pledged hereunder (except for the
stock of General Nuclear Corp.), or (y) otherwise diminish or impair any of its
rights in, to or under any of the Collateral (except for any sale, transfer or
other disposition of the stock of General Nuclear Corp.); (ii) shall execute
such Uniform
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Commercial Code financing statements and other documents (and pay the costs of
filing and recording or re-filing and re-recording the same in all public
offices reasonably deemed necessary or appropriate by the Agent) and do such
other acts and things, all as the Agent may from time to time reasonably
request, to establish and maintain a valid, perfected security interest in the
Collateral (free of all other liens, claims and rights of third parties
whatsoever) to secure the performance and payment of the Liabilities; (iii)
will execute and deliver to the Agent such stock powers, endorsements and
similar documents relating to the Collateral, satisfactory in form and
substance to the Agent, as the Agent may reasonably request; and (iv) will
furnish the Agent or any Bank such information concerning the Collateral as
such Agent or such Bank may from time to time reasonably request, and will
permit any Agent or any Bank or any designee of any Agent or any Bank, from
time to time at reasonable times and on reasonable notice, to inspect, audit
and make copies of and extracts from all records and all other papers in the
possession of the Company which pertain to the Collateral as set forth in
Section 10.2 of the Credit Agreement, and will, upon request of the Agent at
any time when a Default has occurred and is continuing, deliver to the Agent
all of such records and papers.
4. Holding in Name of Agent, etc. The Agent may from time to time
after the occurrence and during the continuance of a Default, without notice to
the Company, take all or any of the following actions: (a) transfer all or any
part of the Collateral into the name of the Agent or any nominee or sub-agent
for the Agent, with or without disclosing that such Collateral is subject to
the lien and security interest hereunder, (b) appoint one or more sub-agents or
nominees for the purpose of retaining physical possession of the Collateral,
(c) notify the parties obligated on any of the Collateral to make payment to
the Agent of any amounts due or to become due thereunder, (d) endorse any
checks, drafts or other writings in the name of the Company to allow collection
of the Collateral, (e) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or
compromise or renew for any period (whether or not longer than the original
period) any obligations of any nature of any party with respect thereto, and
(f) take control of any proceeds of the Collateral.
5. Voting Rights, Dividends, Payments etc. (a) Notwithstanding certain
provisions of Section 4 hereof, so long as the Agent has not given the notice
referred to in paragraph (b) below:
A. The Company shall be entitled to exercise any and all voting or
consensual rights and powers and stock purchase or subscription rights (but
any such exercise by the Company of stock purchase or subscription rights
may be
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made only from funds of the Company not comprising part of the
Collateral) relating or pertaining to the Collateral constituting stock or
any part thereof for any purpose; provided, however, that the Company
agrees that it will not exercise any such right or power in any manner
which would have a material adverse effect on the value of such Collateral
or any part thereof (except for any sale, transfer or other disposition of
the stock of General Nuclear Corp.).
B. The Company shall be entitled to receive and retain any and all
lawful dividends payable in respect of the Collateral constituting stock
which are paid in cash by any Issuer if such dividends are permitted by the
Credit Agreement, but all dividends and distributions in respect of such
Collateral or any part thereof made in shares of stock or other property or
representing any return of capital, whether resulting from a subdivision,
combination or reclassification of such Collateral or any part thereof or
received in exchange for such Collateral or any part thereof or as a result
of any merger, consolidation, acquisition or other exchange of assets to
which any Issuer may be a party or otherwise or as a result of any exercise
of any stock purchase or subscription right, shall be and become part of
the Collateral hereunder and, if received by the Company, shall be
forthwith delivered to the Agent in due form for transfer (i.e., endorsed
in blank or accompanied by stock or bond powers executed in blank) to be
held for the purposes of this Agreement (except for any sale, transfer or
other disposition of the stock of General Nuclear Corp.).
C. The Agent shall execute and deliver, or cause to be executed and
delivered, to the Company, all such proxies, powers of attorney, dividend
orders and other instruments as the Company may request for the purpose of
enabling the Company to exercise the rights and powers which it is entitled
to exercise pursuant to clause (A) above and to receive the dividends which
it is authorized to retain pursuant to clause (B) above.
(b) Upon notice from the Agent during the existence of a Default, and
so long as the same shall be continuing, all rights and powers which the
Company is entitled to exercise pursuant to Section 5(a)(A) hereof, and all
rights of the Company to receive and retain dividends pursuant to Section
5(a)(B) hereof, shall forthwith cease, and all such rights and powers shall
thereupon become vested in the Agent which shall have, during the continuance
of such Default, the sole and exclusive authority to exercise such rights and
powers and to receive such dividends and payments. Any and all money and other
property paid over to or received by the Agent pursuant to this paragraph (b)
shall be
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retained by the Agent as additional Collateral hereunder and applied in
accordance with the provisions hereof.
6. Remedies. Whenever a Default shall exist, the Agent may exercise
from time to time any rights and remedies available to it under the Uniform
Commercial Code as in effect in Illinois or otherwise available to it. Without
limiting the foregoing, whenever a Default shall exist the Agent (a) may, to
the fullest extent permitted by applicable law, without notice, advertisement,
hearing or process of law of any kind, (i) sell any or all of the Collateral,
free of all rights and claims of the Company therein and thereto, at any public
or private sale or brokers' board and (ii) bid for and purchase any or all of
the Collateral at any such public sale and (b) shall have the right, for and in
the name, place and stead of the Company, to execute endorsements, assignments,
stock powers and other instruments of conveyance or transfer with respect to
all or any of the Collateral. The Company hereby expressly waives, to the
fullest extent permitted by applicable law, any and all notices,
advertisements, hearings or process of law in connection with the exercise by
the Agent of any of its rights and remedies during the continuance of a
Default. If any notification of intended disposition of any of the Collateral
is required by law, such notification, if mailed, shall be deemed reasonably
and properly given if mailed at least ten (10) days before such disposition,
postage prepaid, addressed to the Company, either at the address of the Company
shown below, or at any other address of the Company appearing on the records of
the Agent. Any proceeds of any of the Collateral may be applied by the Agent
to the payment of expenses in connection with the Collateral, including,
without limitation, reasonable attorneys' fees and legal expenses, and any
balance of such proceeds may be applied by the Agent toward the payment of such
of the Liabilities, and in such order of application, as the Agent may from
time to time elect (and, after payment in full of all Liabilities, any excess
shall be delivered to the Company or as a court of competent jurisdiction shall
direct).
The Agent is hereby authorized to comply with any limitation or
restriction in connection with any sale of Collateral as it may be advised by
counsel is necessary in order to (a) avoid any violation of applicable law
(including, without limitation, compliance with such procedures as may restrict
the number of prospective bidders and purchasers and/or further restrict such
prospective bidders or purchasers to persons or entities who will represent and
agree that they are purchasing for their own account for investment and not
with a view to the distribution or resale of such Collateral) or (b) obtain any
required approval of the sale or of the purchase by any governmental regulatory
authority or official, and the Company agrees that such compliance shall not
result in such sale being considered or
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deemed not to have been made in a commercially reasonable manner and that the
Agent shall not be liable or accountable to the Company for any discount
allowed by reason of the fact that such Collateral is sold in compliance with
any such limitation or restriction.
7. General. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral if it takes such action
for that purpose as the Company shall request in writing, but failure of the
Agent to comply with any such request shall not of itself be deemed a failure
to exercise reasonable care, and no failure of the Agent to preserve or protect
any rights with respect to the Collateral against prior parties, or to do any
act with respect to preservation of the Collateral not so requested by the
Company, shall be deemed of itself a failure to exercise reasonable care in the
custody or preservation of any Collateral.
No delay on the part of the Agent in exercising any right, power or
remedy shall operate as a waiver thereof, and no single or partial exercise of
any such right, power or remedy shall preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Agreement shall be effective unless the same shall be in writing and signed and
delivered by the Agent, and then such amendment, modification, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
All obligations of the Company and all rights, powers and remedies of
the Agent and the Banks expressed herein are in addition to all other rights,
powers and remedies possessed by them, including, without limitation, those
provided by applicable law or in any other written instrument or agreement
relating to any of the Liabilities or any security therefor.
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
This Agreement shall be binding upon the Company and the Agent and
their respective successors and assigns, and shall inure to the benefit of the
Company and the Agent and the successors and assigns of the Agent.
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This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together constitute
but one and the same Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE COMPANY AND THE AGENT HEREBY
EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE
COMPANY AND THE AGENT FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS OF THE PERSON SPECIFIED IN, OR
PURSUANT TO, THE CREDIT AGREEMENT, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS. THE COMPANY AND THE AGENT HEREBY EXPRESSLY AND IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE COMPANY OR THE AGENT
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR
FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, THE COMPANY AND THE AGENT HEREBY IRREVOCABLY WAIVE SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
EACH OF THE COMPANY, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF)
EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first written above.
Larizza Industries, Inc.
Address:
201 West Big Beaver Road By: /s/ Terence C. Seikel
Suite 1040 Name: Terence C. Seikel
Troy, MI 48084 Title: Chief Financial Officer
Continental Bank N.A.,
as Agent
Address:
231 South LaSalle Street By: /s/ Steven Ahrenholz
Chicago, IL 60697 Name: Steven Ahrenholz
Title: Vice President
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