Exhibit 10.22
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated January 24, 2003, is made by RA BRANDS,
L.L.C., a Delaware limited liability company (the "Pledgor"), in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
collateral and administrative agent (in such capacity, the "Agent") for the
several banks and other financial institutions (collectively, the "Lenders")
from time to time parties to the Credit Agreement, dated January 24, 2003 (as
the same may be amended, supplemented, waived or otherwise modified from time to
time, the "Credit Agreement"), among Remington Arms Company, Inc., a Delaware
corporation ("Remington"), and RA Factors, Inc., a Delaware corporation
("Factors"; Remington and Factors are hereinafter referred to collectively as
the "Borrowers"), Fleet Capital Corporation, as syndication agent, National City
Commercial Finance, Inc., as documentation agent, the Agent, and the Lenders.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make loans and other extensions of credit to the Borrowers upon the
terms and subject to the conditions set forth in the Credit Agreement;
WHEREAS, the Pledgor is the legal and beneficial owner of Pledged Equity
Interests (as hereinafter defined) issued by the Issuers (as hereinafter
defined); and
WHEREAS, it is a condition precedent to the obligations of the Lenders to
make Revolver Loans and provide other financial accommodations to the Borrowers
under the Credit Agreement that Pledgor shall have executed and delivered this
Agreement to the Agent for the ratable benefit of the Lenders;
WHEREAS, Pledgor has agreed to execute and deliver this Pledge Agreement to
the Agent, for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises the Pledgor hereby agrees
with the Agent, for the ratable benefit of the Lenders, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, capitalized terms defined in the
Credit Agreement are used herein as defined therein.
(b) The following terms shall have the following meanings:
"Additional Pledged Equity Interests": as defined in Section 5(a).
"Agreement": this Pledge Agreement, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code (or any successor statute) as
adopted and in force in the State of New York or, when the laws of any
other state govern the method or manner of the perfection or enforcement
of any security interest in any of the Collateral, the Uniform Commercial
Code (or any successor statute) of such state.
"Collateral": all of the Pledgor's right, title and interest in and
to the Pledged Equity Interests and all Proceeds thereof.
"Issuers": the collective reference to the companies identified on
Schedule 1 attached hereto as the issuers of the Pledged Equity Interests;
individually, an "Issuer."
"Obligations": (a) all indebtedness, liabilities and obligations of
Pledgor to Agent and Lenders of every kind and description, whether direct
or indirect, joint or several, absolute or contingent, due or to become
due, now existing or hereafter arising under any of the Credit Documents
and (b) all indebtedness, liabilities and obligations now or hereafter
owing by the Borrowers under any of the Credit Documents.
"Pledged Equity Interests": the Equity Interests listed on Schedule 1
hereto, together with all certificates, options or similar rights of any
nature whatsoever or any investment property (as defined in the Code) in
the Issuers, in each case that may be issued to or held by the Pledgor
while this Agreement is in effect, including Additional Pledged Equity
Interests; provided that in no event shall more than 65% of the issued and
outstanding shares of capital stock of any Foreign Subsidiary be Pledged
Equity Interests.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(64) of the Code and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Equity
Interests, collections thereon or distributions with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby grants to Agent,
for the ratable benefit of the Lenders, a security interest in the Collateral,
as collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations, and hereby agrees that it will deliver or cause to be delivered to
the Agent, for the ratable benefit of the Lenders, all certificates representing
the Pledged Equity Interests no later than the date hereof, except for any
certificates representing Additional Pledged Equity Interests, which shall be
forthwith delivered to Agent upon the Pledgor's receipt thereof.
3. Stock Powers. Concurrently with the delivery to the Agent of each
certificate representing any Pledged Equity Interest pursuant to paragraph 2
above, the Pledgor shall deliver an undated stock power or other instrument of
transfer covering such certificate, duly executed in blank by the Pledgor with,
if the Agent so requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents and warrants
that:
(a) The Pledged Equity Interests constitute 100% of the issued and
outstanding Equity Interests of the Issuer held by the Pledgor on the date
hereof.
(b) All the Pledged Equity Interests have been (or, with respect to
Additional Pledged Equity Interests, when pledged to the Agent, will be)
duly and validly issued and are (or, with respect to Additional Pledged
Equity Interests, when pledged to the Agent, will be) fully paid and
nonassessable.
(c) The Pledgor is (or, with respect to Additional Pledged Equity
Interests, when pledged to the Agent, will be) the record and beneficial
owner of, and has (or, with respect to Additional Pledged Equity
Interests, when pledged to the Agent will have) good and marketable title
to, the Pledged Equity Interests, free of any and all Liens or options in
favor of, or material adverse claims on any of the Pledged Equity
Interests by, any other Person, except the security interest created by
this Agreement or any other Credit Document, Liens arising by operation of
law and, with respect to the Pledged Equity Interests of Remington
Licensing Corporation, a Delaware corporation ("RLC"), the rights of RLC
and Remington Products, Inc. ("RPI") pursuant to the Trademark Settlement
Agreement, dated effective as of December 5, 1986, between Pledgor and RPI
(the
"Trademark Settlement Agreement").
(d) Except with respect to the Pledged Equity Interests of RLC, there are
no contractual or charter restrictions upon the voting rights or upon the
transfer of any of the Collateral for which the consent from the applicable
party has not been obtained previously.
(e) The Pledgor has the right to vote, pledge and grant a security
interest in or otherwise transfer the Collateral without the consent of
any other party that has not been obtained previously and free of any
Liens (other than Liens permitted under the Credit Documents), and, except
with respect to the Pledged Equity Interests of RLC, without any
restriction under the Organization Documents of the Pledgor or any Issuer
or any agreement among the Pledgor's or any Issuer's equity holders.
(f) This Agreement has been duly authorized, executed and delivered
by the Pledgor and constitutes a legal, valid and binding obligation of
the Pledgor, enforceable in accordance with its terms except as affected
by bankruptcy, insolvency, fraudulent conveyance,
reorganization,moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
(g) The execution, delivery and performance by the Pledgor of this
Agreement and the exercise by the Agent of its rights and remedies
hereunder do not and will not result in the violation of (i) the
Organization Documents of the Pledgor, (ii) any agreement, indenture or
instrument by which the Pledgor or any Issuer is bound to the extent that
any such violation could reasonably be expected to have a Material Adverse
Effect or (iii) Applicable Law to which the Pledgor or any Issuer is
subject (except the Pledgor makes no representation or warranty about
Lender's prospective compliance with any federal or state laws or
regulations governing the sale or exchange of securities);
(h) No Pledged Equity Interest is now or will hereafter be held or
maintained in the form of a securities entitlement or credited to any
securities account.
(i) All of the Pledged Equity Interests are now and will hereafter
be evidenced by certificates.
(k) Upon delivery to the Agent of all certificates evidencing any
Pledged Equity Interests, the security interest created by this Agreement,
assuming the continuing possession of the Pledged Equity Interests by the
Agent, will constitute a valid and perfected first priority security
interest in the Collateral to the extent provided in the Code, enforceable
in accordance with its terms against all creditors of the Pledgor and any
Persons purporting to purchase any Collateral from the Pledgor, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization,moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; provided,
however, that the above representation and warranty does not apply to any
Lien arising by operation of law and entitled to a priority over the
security interest created by this Agreement.
5. Covenants. The Pledgor covenants and agrees with the Agent and the
Lenders that, from and after the date of this Agreement for so long as there are
Revolver Commitments outstanding under the Credit Agreement and thereafter until
payment in full of the Obligations (except for contingent obligations of any
Obligor under indemnifications that survive termination of the Revolver
Commitments):
(a) If the Pledgor shall, as a result of its ownership of the
Pledged Equity Interests, become entitled to receive or shall receive any
certificate (including, without limitation, any certificate representing a
dividend payable in the form of an Equity Interest or a distribution in
connection with any reclassification, increase or reduction of capital or
any certificate issued in connection with any reorganization), stock
option or similar rights, whether in addition to, in substitution of, as a
conversion of, or in exchange for any Pledged Equity Interest, or
otherwise in respect thereof (collectively, the "Additional Pledged Equity
Interests"), the Pledgor shall accept the same as the agent of the Agent
and the Lenders, hold the same in trust for the Agent and the Lenders and
deliver the same forthwith to the Agent in the exact form received, duly
indorsed by the Pledgor to the Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by
the Pledgor and with, if the Agent so requests, signature guaranteed, to
be held by the Agent, subject to the terms hereof, as additional
collateral security for the Obligations. Any sums paid upon or in respect
of the Pledged Equity Interests upon the liquidation or dissolution of any
Issuer (other than pursuant to a transaction permitted under Sections
10.2.1 or 10.2.9 of the Credit Agreement) shall be paid over to the Agent
to be held by it hereunder as additional collateral security for the
Obligations, and in case any property shall be distributed upon or with
respect to the Pledged Equity Interests pursuant to the recapitalization
or reclassification of the capital of any Issuer or pursuant to the
reorganization thereof (other than pursuant to a transaction permitted
under Sections 10.2.1 or 10.2.9 of the Credit Agreement), the property so
distributed shall be delivered to the Agent to be held by it hereunder as
additional collateral security for the Obligations. If any such sums of
money or property so paid or distributed in respect of the Pledged Equity
Interests shall be received by the Pledgor, the Pledgor shall, until such
money or property is paid or delivered to the Agent, hold such money or
property in trust for the Agent and the Lenders, segregated from other
funds of the Pledgor, as additional collateral security for the
Obligations.
(b) Without the prior written consent of the Agent, the Pledgor will
not vote to enable, or take any other action to permit, any Issuer to
issue any Equity Interests of any nature or to issue any other securities
convertible into or granting the right to purchase or
exchange for any Equity Interests of any nature of any Issuer, to any
Person other than the Pledgor, sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral,
except as permitted by Sections 10.2.1, 10.2.9 or 10.2.10 of the Credit
Agreement, or create, incur or permit to exist any Lien or option in favor
of, or any material adverse claim of any Person with respect to, any of
the Collateral, or any interest therein, except for the security interests
created by this Agreement and Liens arising by operation of law.
(c) The Pledgor shall defend the security interest created by this
Agreement as a perfected security interest against claims and demands of
all Persons whomsoever. At any time and from time to time, upon the
written request of the Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Agent may
reasonably request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted. In
the event that an Event of Default has occurred and is continuing, if any
amount payable under or in connection with any of the Collateral shall be
or become evidenced by any instrument (including any promissory note) or
chattel paper (in each case as defined in the Code), such instrument or
chattel paper shall be immediately delivered to the Agent, duly endorsed
in a manner satisfactory to the Agent, to be held as Collateral pursuant
to this Agreement. Prior to such delivery, the Pledgor shall hold all such
instruments and chattel paper in trust for the Agent, for the ratable
benefit of the Lenders, and shall not commingle any of the foregoing with
any assets of the Pledgor.
(d) The Pledgor shall pay, and save the Agent and the Lenders
harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all stamp, excise, sales or other similar
taxes which may be payable or determined to be payable with respect to any
of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of Default shall have
occurred and be continuing and the Agent shall have given notice to the Pledgor
of the Agent's intent to exercise its corresponding rights pursuant to paragraph
7 below, the Pledgor shall be permitted to receive all dividends and
distributions paid or made in respect of the Pledged Equity Interests and to
exercise all voting and corporate or limited liability company (as the case may
be) and other rights with respect to the Pledged Equity Interests; provided,
however, that no vote shall be cast or corporate or limited liability company
(as the case may be) right exercised or other action taken which would
materially impair the Collateral (other than pursuant to a transaction permitted
under the Credit Agreement) or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Credit Document.
7. Rights of the Lenders and the Agent. If an Event of Default shall
occur and be continuing and the Agent shall give notice to the Pledgor of its
intent to exercise such rights, (i) the Agent shall have the right to receive
any and all cash dividends paid in respect of the Pledged Equity
Interests and make application thereof to the Obligations in such order as the
Agent may determine and (ii) the Agent shall have the right to cause all of the
Pledged Equity Interests to be registered in the name of the Agent or its
nominee, and the Agent or its nominee may thereafter exercise (x) all voting and
corporate or limited liability company (as the case may be) and other rights
pertaining to such Pledged Equity Interests at any meeting of equity holders of
any Issuer or otherwise and (y) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
Pledged Equity Interests as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Pledged Equity Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the structure of any Issuer, or
upon the exercise by the Pledgor or the Agent of any right, privilege or option
pertaining to such Pledged Equity Interests, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Equity Interests with
any committee, depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as the Agent may determine), all without
liability (other than for its gross negligence or willful misconduct) except to
account for property actually received by it, but the Agent shall have no duty
to the Pledgor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing; provided that the
Agent shall not exercise any voting or other consensual rights pertaining to the
Pledged Equity Interests in any way that would constitute an exercise of the
remedies described in paragraph 8 other than in accordance with such paragraph
8.
8. Remedies. If an Event of Default shall occur and be continuing, the
Agent, on behalf of the Lenders, may (and upon written instructions to do so
from the Required Lenders, shall) exercise all rights and remedies of a secured
party under the Code, and, to the extent permitted by law, all other rights and
remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations. Without limiting the
generality of the foregoing, the Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Pledgor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may (and upon written instructions to do so from the Required
Lenders, shall) in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give option or options to purchase
or otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Agent or any Lender or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Agent or any Lender shall have the right, to the extent permitted by law,
upon any such sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in the Pledgor, which right
or equity is hereby waived or released. The Agent shall apply any Proceeds from
time to time held by it and the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agent and the Lenders hereunder, including,
without limitation, reasonable
attorneys' fees and disbursements of counsel to the Agent, to the payment in
whole or in part of the Obligations, in such order as the Agent may elect, and
only after such application and after the payment by the Agent of any other
amount required by any provision of law, including, without limitation, Section
9-615(a) of the Code, need the Agent account for the surplus, if any, to the
Pledgor. To the extent permitted by applicable law, the Pledgor waives all
claims, damages and demands it may acquire against the Agent or any Lender
arising out of the repossession, retention or sale of the Collateral, other than
any such claims, damages and demands that may arise from the gross negligence or
willful misconduct of any of them. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition. The Pledgor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of Collateral are insufficient to pay the then
outstanding Obligations and the fees and disbursements of any attorneys employed
by the Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales.
(a) If the Agent shall determine to exercise its right to sell any
or all of the Pledged Equity Interests pursuant to paragraph 8 hereof, and
if in the reasonable opinion of the Agent it is necessary or reasonably
advisable to have the Pledged Equity Interests, or that portion thereof to
be sold, registered under the provisions of the Securities Act, the
Pledgor will use its best efforts to cause each Issuer thereof (i) to
execute and deliver, and cause the directors and officers of such Issuer
to execute and deliver, all such instruments and documents, and do or
cause to be done all such other acts as may be, in the reasonable opinion
of the Agent, necessary or reasonably advisable to register the Pledged
Equity Interests to be sold, or that portion thereof to be sold under the
provisions of the Securities Act, (ii) to use its best efforts to cause
the registration statement relating thereto to become effective and to
remain effective for a period of not more than one year from the date of
the first public offering of the Pledged Equity Interests, or that portion
thereof to be sold, ending when all such Pledged Equity Interests are
sold, and (iii) to make all amendments thereto and/or to the related
prospectus which, in the reasonable opinion of the Agent, are necessary or
reasonably advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. If the Agent shall determine to
exercise its right to sell any or all of the Pledged Equity Interests
pursuant to paragraph 8 hereof, and if in the reasonable opinion of the
Agent it is necessary or reasonably advisable to comply with the
provisions of the securities or "Blue Sky" laws of any jurisdiction, the
Pledgor agrees to use its best efforts to cause each such Issuer to comply
with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Agent shall reasonably designate and to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Agent may be unable to effect a
public sale of any or all the Pledged Equity Interests, by reason of
certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise, and may
be compelled to resort to one or more private sales thereof to a
restricted group of purchasers which will be obliged to agree, among other
things, to acquire such securities for their own account for investment
and not with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Agent shall be under no obligation to delay a sale of any of the Pledged
Equity Interests for the period of time necessary to permit the Issuer
thereof to register such securities for public sale under the Securities
Act, or under applicable state securities laws, even if such Issuer would
agree to do so.
(c) The Pledgor further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Equity Interests pursuant to
this paragraph 9 valid and binding and in compliance with any and all
other applicable Requirements of Law. The Pledgor further agrees that a
breach of any of the covenants contained in this Section will cause
irreparable injury to the Agent and the Lenders, that the Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section shall
be specifically enforceable against the Pledgor, and, to the extent
permitted by law, the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred and is
continuing under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuers. The Pledgor
hereby authorizes and instructs each Issuer to comply with any instruction
received by it from the Agent in writing that (a) states that an Event of
Default has occurred and is continuing and (b) is otherwise in accordance with
the terms of this Agreement, without any other or further instructions from the
Pledgor, and the Pledgor agrees that each Issuer shall be fully protected in so
complying. Furthermore, to the extent any portion of the Collateral may now or
hereafter consist of uncertificated securities within the meaning of Article 8
of the UCC, the Pledgor irrevocably authorizes and instructs each Issuer to
comply with any instruction received by it from the Agent with respect to such
Collateral without any other or further instructions from or consent of the
Pledgor, and the Pledgor agrees that each Issuer shall be fully protected in so
complying; provided, however, that the Agent agrees that it will not issue or
deliver any instructions to any Issuer except after the occurrence and during
the continuation of an Event of Default.
11. Agent's Appointment as Attorney-in-Fact.
(a) The Pledgor hereby irrevocably constitutes and appoints the
Agent and any officer or agent of the Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Pledgor and in the name
of the Pledgor or in the Agent's own name, from time to time in
the Agent's discretion, in the event that an Event of Default has occurred
and is continuing, and to the extent permitted by law, to take any and all
appropriate action and to execute any and all documents and instruments
which may be necessary or reasonably desirable to accomplish the purposes
of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted
in paragraph 11. All powers, authorizations and agencies contained in this
Agreement with respect to the Collateral are powers coupled with an
interest and are irrevocable for so long as there are Revolver Commitments
outstanding under the Credit Agreement and thereafter until payment in
full of the Obligations (except for contingent obligations of Borrowers
under indemnifications that survive termination of the Revolver
Commitments).
12. Duty of Agent. The Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to deal with it in the same
manner as the Agent deals with similar securities and property for its own
account. None of the Agent any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Authorization to File Financing Statements, Etc. Pursuant to any
applicable law, the Pledgor authorizes the Agent to file or record financing
statements and other filing or recording documents or instruments with respect
to the Collateral without the further signature or consent of the Pledgor in
such form and in such offices as the Agent determines appropriate to perfect the
security interests of the Agent under this Agreement.
14. Authority of Agent. The Pledgor acknowledges that the rights and
responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Agent and the Pledgor, the Agent shall be conclusively presumed to be acting as
agent for the Lenders with full and valid authority so to act or refrain from
acting, and neither the Pledgor nor any Issuer shall be under any obligation to
make any inquiry respecting such authority.
15. Notices. All notices, requests and demands under this Agreement shall
be given, and shall be deemed effective, in accordance with Section 15.9 of the
Credit Agreement, except that (a) notices to the Pledgor (if other than
Remington) shall be delivered to it care of Remington at the address for
Remington set forth in the Credit Agreement, (b) notices to the Issuers (other
than RLC)
shall be given at the addresses set forth under their signatures below with a
copy to Remington at the address for Remington set forth in the Credit Agreement
and (c) notices to RLC shall be sent to the following address:
Remington Licensing Corporation
_______________________________
_______________________________
_______________________________
with a copy to Remington at the address for Remington set forth in the
Credit Agreement.
The Agent, the Pledgor and each Issuer may change its address and
transmission numbers for notices by notice in the manner provided in Section
15.9 of the Credit Agreement.
16. Release of Collateral and Termination.
(a) At such time as the Obligations (except for contingent
obligations of any Obligor under indemnifications that survive termination
of the Revolver Commitments) have been paid in full and the Revolver
Commitments have been terminated, the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other
than those expressly stated to survive such termination) of the Agent and
the Pledgor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Pledgor. Upon request of the Pledgor
following any such termination, the Agent shall deliver (at the sole cost
and expense of the Pledgor) to the Pledgor any Collateral held by the
Agent hereunder, and execute and deliver (at the sole cost and expense of
the Pledgor) to the Pledgor such documents as the Pledgor shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Pledgor in a transaction permitted by the Credit
Agreement, then the Agent shall execute and deliver to the Pledgor (at the
sole cost and expense of the Pledgor) all releases or other documents
necessary or reasonably desirable for the release of the Liens created
hereby on such Collateral.
(c) The Agent, on behalf of the Lenders, hereby acknowledges that,
notwithstanding the provisions of this Agreement, if certain bankruptcy or
insolvency-related events occur with respect to the Pledgor, the Pledgor
(or the Agent and the Lenders, if the Agent has exercised its rights under
paragraph 8 hereof) may be contractually required under Section 4(a) of
Article II of the Trademark Settlement Agreement to sell any Pledged
Equity Interests of RLC (free of any Liens created by this Agreement) to
RLC or to RPI, at their option, at such shares' book value, or, under
certain circumstances, at their fair market value. The Agent, on behalf of
the Lenders, agrees to be bound by the foregoing provisions of the
Trademark Settlement Agreement and to release the Lien of
this Agreement on the Pledged Equity Interests of RLC whenever and if so
required.
17. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
18. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Pledgor and the Agent.
(b) Neither the Agent nor any Lender shall by any act (except by a
written instrument pursuant to paragraph 18 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to
exercise, nor any delay in exercising, on the part of the Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Agent or
any Lender of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which the Agent or such
Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights
or remedies provided by law.
19. Section Headings. The section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
to be taken into consideration in the interpretation hereof.
20. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Agent, the Other Representatives and the Lenders and their successors and
assigns.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW); PROVIDED, HOWEVER, THAT IF ANY COLLATERAL SHALL BE
LOCATED IN ANY JURISDICTION
OTHER THAN NEW YORK, THE LAWS OF SUCH JURISDICTION SHALL GOVERN THE METHOD,
MANNER AND PROCEDURE FOR FORECLOSURE OF AGENT'S LIEN UPON COLLATERAL AND THE
ENFORCEMENT OF AGENT'S OTHER REMEDIES OF COLLATERAL TO THE EXTENT THAT THE LAWS
OF SUCH JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT WITH THE LAWS OF THE
STATE OF NEW YORK. NOTWITHSTANDING THE FOREGOING PROVISION FOR THE NOTICE AND
SALE OF COLLATERAL UNDER THE LAW OF THE SITUS, IT IS THE PARTIES' INTENTION THAT
NEW YORK LAW CONTROL THE OBLIGATIONS OF PLEDGOR UNDER THE CREDIT DOCUMENTS AND
THE ENFORCEMENT OF THE SAME SUCH THAT, FOR EXAMPLE, PLEDGOR AGREES AND
ACKNOWLEDGES THAT PURSUANT TO NEW YORK LAW PLEDGOR SHALL BE LIABLE FOR A
DEFICIENCY JUDGMENT NOTWITHSTANDING THE SALE OF REAL PROPERTY COLLATERAL UNDER A
POWER OF SALE AND FURTHER THAT LENDERS OR AGENT MAY, AT THEIR ELECTION, SEEK A
MONEY JUDGMENT UNDER THE CREDIT DOCUMENTS WITHOUT FIRST EXHAUSTING ALL
COLLATERAL SECURING THE OBLIGATIONS THEREUNDER.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
RA BRANDS, L.L.C.
By /s/ Thomas Millner
-------------------------
Name: Thomas Millner
-------------------------
Title: President
-------------------------
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Brian R. O'Fallon
-------------------------
Name: Brian R. O'Fallon
----------------------
Title: Director
----------------------
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED EQUITY INTERESTS
% of
Outstanding
Type and Class of Equity Certificate
Issuer Equity Interests Interests No.
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Remington Licensing Corporation common stock 50% A1
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