Exhibit 4.12
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") dated as of March 30, 2001 is
among APW LTD., a Bermuda corporation (the "Parent"); APW NORTH AMERICA, INC., a
Delaware corporation ("APW-NA"); RUBICON U.S.A. INC. ("Rubicon"); the other
persons or entities which are listed on the signature pages hereof as debtors or
which from time to time become parties hereto as debtors (collectively,
including the Parent, APW-NA and Rubicon, "Debtors" and individually each a
"Debtor"); and BANK OF AMERICA, NATIONAL ASSOCIATION, in its capacity as
administrative agent for the Banks referred to below (in such capacity, the
"Administrative Agent").
W I T N E S E T H:
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WHEREAS, the Borrowers have entered into a Multicurrency Credit Agreement
dated as of July 31, 2000 (as amended or otherwise modified from time to time,
the "Credit Agreement") with various financial institutions (together with their
respective successors and assigns, collectively the "Banks"), Bank One NA, as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent and the
Administrative Agent, pursuant to which such financial institutions have agreed
to make loans to, and issue or participate in letters of credit for the account
of, the Borrowers;
WHEREAS, the Parent, APW-NA, all Domestic Subsidiaries of APW-NA, and
certain other Subsidiaries of the Parent have executed and delivered, or will
execute and deliver, guaranties (as each such guaranty may be amended or
otherwise modified from time to time, as to each such guarantor, the "Guaranty")
of certain Obligations under the Credit Agreement;
WHEREAS, the Banks have no obligation at the present time to make
additional loans or issue or participate in additional letters of credit under
the Credit Agreement;
WHEREAS, as consideration to the Banks for their agreement to make certain
additional loans and issue and participate in certain additional letters of
credit, the Obligations of the Borrowers under the Credit Agreement and the
Guaranties to which it is a party and the Obligations of each other Debtor under
the Guaranty(ies) to which it is a party are to be secured pursuant to this
Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Borrowers 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, (a) capitalized terms which are not
otherwise defined herein shall have the meanings assigned thereto in the Credit
Agreement; and (b) the following terms have the following meanings (such
meanings to be applicable to both the singular and plural forms of such terms):
Collateral - see Section 2.
Default means the occurrence of: (a) any Default (as defined in the Credit
Agreement) or (b) any Event of Default.
Issuer means the issuer of any of the shares of stock or other instruments
and securities representing all or any of the Collateral.
Liabilities means with respect to the Parent and any of its Subsidiaries
parties thereto, all Obligations (monetary or otherwise) of such Debtor under
the Credit Agreement, any Note, the Guaranty, any other Loan Document or any
other document or instrument executed in connection therewith, in each case
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due.
2. Pledge. As security for the payment of all Liabilities, each Debtor
hereby pledges to the Administrative Agent for the benefit of the Administrative
Agent and the Banks, and grants to the Administrative Agent for the benefit of
the Administrative Agent and the Banks a continuing security interest in, all of
the following, whether now or hereafter existing or acquired:
A. All of the shares of stock and other instruments and securities
described in Schedule I hereto, all of the certificates and/or instruments
representing such shares of stock and other instruments and 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, instruments or securities at any time
and from time to time acquired by such Debtor in any manner, 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 Administrative 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 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.
All of the foregoing are herein collectively called the "Collateral".
Each Debtor agrees to deliver to the Administrative 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 (other than dividends
and payments which such Debtor is entitled to receive and retain pursuant to
Section 5 hereof) which may at any time or from time to time come into the
possession or control of such Debtor; and prior to the delivery thereof to the
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Administrative Agent, such Collateral shall be held by such Debtor separate and
apart from its other property and in express trust for the Administrative Agent;
provided that each Debtor shall be entitled to retain (separate and apart from
its other property and in express trust for the Administrative Agent)
instruments and other securities (other than shares of stock) until the
aggregate amount (based on their face value) of such instruments and other
securities of all Debtors is equal to $200,000 or more at which time such
instruments and other securities shall be promptly delivered to the
Administrative Agent. After the date hereof, each time that a Debtor delivers
additional Collateral to the Administrative Agent pursuant to this Agreement,
such Debtor shall prepare and deliver to the Administrative Agent an updated
Schedule I to reflect such additional Collateral.
3. Warranties; Further Assurances. Each Debtor warrants to the
Administrative Agent and each Bank that: (a) such Debtor 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 Administrative 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 percentage (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 the Administrative Agent or any Bank with respect to
the creation of any Liabilities, each Debtor agrees that it (i) shall not,
without the express prior written consent of the Administrative Agent, 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, or otherwise diminish or impair any of its rights in, to or under any
of the Collateral; (ii) shall execute such Uniform 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 Administrative Agent) and do such other acts and
things, all as the Administrative 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 Administrative Agent such stock powers, endorsements
and similar documents relating to the Collateral, satisfactory in form and
substance to the Administrative Agent, as the Administrative Agent may
reasonably request; and (iv) will furnish the Administrative Agent or any Bank
such information concerning the Collateral as the Administrative Agent or such
Bank may from time to time reasonably request, and will permit the
Administrative Agent or any Bank or any designee of the Administrative Agent or
any Bank, from time to time at reasonable times and on reasonable notice (or at
any time without notice during the existence of a Default), to inspect, audit
and make copies of and extracts from all
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records and all other papers in the possession of such Debtor which pertain to
the Collateral, and will, upon request of the Administrative Agent at any time
when a Default has occurred and is continuing, deliver to the Administrative
Agent all of such records and papers.
4. Holding in Name of Administrative Agent, etc. The Administrative Agent
may from time to time after the occurrence and during the continuance of a
Default, without notice to any Debtor, take all or any of the following actions:
(a) transfer all or any part of the Collateral into the name of the
Administrative Agent or any nominee or sub-agent for the Administrative 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 Administrative
Agent of any amounts due or to become due thereunder, (d) endorse any checks,
drafts or other writings in the name of the applicable Debtor 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 Administrative Agent has not
given the notice referred to in paragraph (b) below:
A. Each Debtor 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 any Debtor of stock purchase or subscription rights
may be made only from funds of such Debtor not comprising part of the
Collateral) relating or pertaining to the Collateral or any part thereof
for any purpose; provided that each Debtor 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 the Collateral or any part thereof.
B. Each Debtor shall be entitled to receive and retain any and all lawful
dividends payable in respect of the Collateral 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 the 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 Collateral or any part thereof or received in exchange
for 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 any Debtor, shall be forthwith delivered to
the Administrative 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.
C. The Administrative Agent shall execute and deliver, or cause to be
executed and delivered, to the applicable Debtor all such proxies, powers
of attorney, dividend orders
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and other instruments as such Debtor may request for the purpose of
enabling such Debtor 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.
D. Each Debtor shall be entitled to (i) collect all regular payments made
or proceeds received with respect to Collateral consisting of instruments
and other securities (other than shares of stock which is governed by
clauses (A)-(C) above) and (ii) enforce and prosecute all rights and
remedies available under any of such instrument and other securities.
(b) Upon notice from the Administrative Agent during the existence of a
Default, and so long as the same shall be continuing, all rights and powers
which the Debtors are entitled to exercise pursuant to Section 5(a)(A) hereof,
and all rights of the Debtors 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 Administrative 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. Any and all
money and other property paid over to or received by the Administrative Agent
pursuant to this paragraph (b) shall be retained by the Administrative Agent as
additional Collateral hereunder and applied in accordance with the provisions
hereof.
6. Remedies. Whenever a Default shall exist, the Administrative 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
Administrative 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 Debtors
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 Debtors,
to execute endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral. Each
Debtor 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 Administrative Agent of any of its rights
and remedies during the continuance of a Default. Any notification of intended
disposition of any of the Collateral shall be deemed reasonably and properly
given if given at least ten (10) days before such disposition. Any proceeds of
any of the Collateral may be applied by the Administrative Agent to the payment
of expenses in connection with the Collateral, including, without limitation,
reasonable attorneys' fees and legal expenses (including time charges of
attorneys who are employees of the Administrative Agent), and any balance of
such proceeds may be applied by the Administrative Agent toward the payment of
such of the Liabilities, and in such order of application, as the Administrative
Agent may from time to time elect (and, after payment in full of all
Liabilities, any excess shall be delivered to the applicable Debtor or as a
court of competent jurisdiction shall direct).
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The Administrative 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 or 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 each Debtor agrees that such compliance shall not
result in such sale being considered or deemed not to have been made in a
commercially reasonable manner and that the Administrative Agent shall not be
liable or accountable to any Debtor 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 Administrative 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 any applicable Debtor shall request in writing,
but failure of the Administrative Agent to comply with any such request shall
not of itself be deemed a failure to exercise reasonable care, and no failure of
the Administrative 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 any Debtor, 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 Administrative 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 Administrative 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 Debtors and all rights, powers and remedies of the
Administrative 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 shall remain in full force and effect until all Liabilities
have been paid in full and all Commitments have terminated. If at any time all
or any part of any payment theretofore applied by the Administrative Agent or
any Bank to any of the Liabilities is or must be rescinded or returned by the
Administrative Agent or such Bank for any reason whatsoever (including the
insolvency, bankruptcy or reorganization of any Debtor), such Liabilities shall,
for the purposes of this Agreement, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Administrative Agent or such Bank, and
this Agreement shall continue to be effective or be
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reinstated, as the case may be, as to such Liabilities, all as though such
application by the Administrative Agent or such Bank had not been made.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Illinois applicable to contracts made and to be fully
performed in such State. 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 each Debtor and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of each Debtor and the Administrative Agent and the successors and
assigns of the Administrative Agent. It is understood and agreed that this
Agreement shall be binding and enforceable against each Debtor which executes a
counterpart to this Agreement notwithstanding that any other Person shall not
become a party hereto as a "Debtor". As additional Debtors become parties, such
Debtors shall deliver their applicable Schedules.
This Agreement may be executed in any number of counterparts (including via
facsimile) 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. At any time after the
date of this Agreement, one or more additional Persons may become parties hereto
by executing and delivering to the Administrative Agent a counterpart of this
Agreement together with supplements to the Schedules hereto setting forth all
relevant information with respect to such party as of the date of such delivery.
Immediately upon such execution and delivery (and without any further action),
each such additional Person will become a party to, and will be bound by all the
terms of, this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, MAY BE BROUGHT AND MAINTAINED IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS 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. EACH DEBTOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH
ON SCHEDULE I TO THE SECURITY AGREEMENT (OR SUCH
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OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE ADMINISTRATIVE AGENT
AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF ILLINOIS. EACH DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, 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.
EACH DEBTOR, THE ADMINISTRATIVE 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 FINANCING 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.
DEBTORS:
APW LTD.
By:
Title:
APW NORTH AMERICA, INC.
By:
Title:
RUBICON U.S.A., INC.
By:
Title:
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ADMINISTRATIVE AGENT:
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Administrative Agent
By:
Margaret H. Claggett
Managing Director
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Signature page for the Pledge Agreement dated as of _______,
2001 among APW Ltd., APW North America, Inc., APW Holding
Denmark APS, various other parties and Bank of America,
National Association, as Administrative Agent for the Banks
referred to herein.
The undersigned is executing a counterpart hereof
for purposes of becoming a party hereto (and
attached to this signature page are supplements to
the Schedules to the Pledge Agreement setting
forth all relevant information with respect to the
undersigned):
[ADDITIONAL DEBTOR]
By:
Title:
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