Exhibit 99.5
AMENDED AND RESTATED PLEDGE AGREEMENT
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THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Agreement") dated as
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of May 16, 2002 is among APW LTD., a Bermuda corporation (the "Borrower"); APW
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NORTH AMERICA, INC., a Delaware corporation, the other persons or entities which
from time to time become parties hereto as debtors (collectively, including the
Borrower, "Debtors" and individually each a "Debtor"); and BANK OF AMERICA,
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NATIONAL ASSOCIATION, in its capacity as Administrative Agent under the Credit
Agreement (as defined below) and in its capacity as Post-Petition Agent under
the Post-Petition Credit Agreement (as defined below) (in such capacities, the
"Agent").
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W I T N E S E T H:
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WHEREAS, the Borrower has entered into an Amended and Restated
Multicurrency Credit Agreement, dated as of May 22, 2001 (as amended or
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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
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Manhattan Bank, as Documentation Agent and Bank of America, National
Association, as 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 Borrower;
WHEREAS, certain Subsidiaries of the Borrower 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
"Credit Agreement Guaranty") of certain Obligations under the Credit Agreement;
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WHEREAS, the Borrower has entered into an Post-Petition Multicurrency
Superpriority Credit Agreement, dated as of May 16, 2002 (as amended or
otherwise modified from time to time, the "Post-Petition Credit Agreement") with
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various financial institutions (together with their respective successors and
assigns, collectively the "Lenders"), Bank of America, National Association, as
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Post-Petition Agent and U.S. Collateral Agent, Royal Bank of Scotland, PLC, as
Lead Arranger, Book Manager, and U.K. Collateral Agent and Oaktree Capital
Management, LLC, as Lead Arranger and Book Manager, 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 Borrower;
WHEREAS, certain Subsidiaries of the Borrower have executed and
delivered, or will execute and deliver, a guaranty (as such guaranty may be
amended or otherwise modified from time to time, as to each such guarantor, the
"Post-Petition Credit Agreement Guaranty") of certain Obligations under the
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Post-Petition Credit Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Borrower under or in
connection with the Credit Agreement and Post-Petition Credit Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
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(a) Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings assigned thereto in the
Post-Petition Credit Agreement.
(b) The following terms have the following meanings (such definitions
to be applicable to both the singular and plural forms of such terms):
(i) "Collateral" has the meaning assigned thereto in
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Section 2.
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(ii) "Default" means the occurrence of: (a) any Default (as
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defined in the Credit Agreement or Post-Petition Credit Agreement);
or (b) any Event of Default (as defined in the Credit Agreement or
Post-Petition Credit Agreement).
(iii) "Issuer" means the issuer of any of the shares of stock or
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other instruments and securities representing all or any of the
Collateral.
(iv) "Liabilities" means with respect to the Borrower and any
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of its Subsidiaries parties hereto, 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: (a) all
Obligations (as such term is defined in the Credit Agreement) of such
Debtor under the Credit Agreement, any Note (as such term is defined in
the Credit Agreement), any Credit Agreement Guaranty, any other Loan
Document (as such term is defined in the Credit Agreement) or any other
document or instrument executed in connection therewith; (b) all
Obligations (as such term is defined in the Post-Petition Credit
Agreement) of such Debtor under the Post-Petition Credit Agreement, any
Note (as such term is defined in the Post-Petition Credit Agreement),
the Post-Petition Credit Agreement Guaranty, any other Loan Document
(as such term is defined in the Post-Petition Credit Agreement) or any
other document or instrument executed in connection therewith; and (c)
any Swap Contract entered into with Bank of America, N.A. or Fleet
National Bank existing on or before May 15, 2001.
SECTION 2. Pledge.
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(a) As security for the payment of all Liabilities, each Debtor hereby
pledges to the Agent for the benefit of the Agent, the Banks and the
Lenders and grants to the Agent for the benefit of the Agent, the Banks and
the Lenders a continuing security interest in, all of the following,
whether now or hereafter existing or acquired (collectively, the
"Collateral"):
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(i) All of the shares of stock and other instruments and
securities described in Schedule I hereto, all of the certificates
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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;
(ii) 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
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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;
(iii) 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 and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
(iv) All products and proceeds of all of the foregoing.
(b) Each Debtor 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
(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
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to time come into the possession or control of such Debtor; and prior to
the delivery thereof to the Agent, such Collateral shall be held by such
Debtor separate and apart from its other property and in express trust for
the Agent; provided that each Debtor shall be entitled to retain (separate
and apart from its other property and in express trust for the 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 Agent.
After the date hereof, each time that a Debtor delivers additional
Collateral to the Agent pursuant to this Agreement, such Debtor shall
prepare and deliver to the Agent an updated Schedule I to reflect such
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additional Collateral.
SECTION 3. Warranties; Further Assurances.
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(a) Each Debtor warrants to the Agent, each Bank and each Lender
that:
(i) 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;
(ii) 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;
(iii) all shares of stock referred to in Schedule I hereto are
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duly authorized, validly issued, fully paid and non-assessable; (d) as
to each Issuer whose name appears in Schedule I hereto, the Collateral
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represents on the date hereof not less than the applicable percentage
(as shown in Schedule I hereto) of the total shares of capital stock
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issued and outstanding of such Issuer; and (e) the information
contained in Schedule I hereto is true and accurate in all respects.
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(b) So long as any of the Liabilities shall be outstanding or any
Commitment shall exist on the part of the Agent, any Bank or any Lender
with respect to the creation of any Liabilities, each Debtor agrees that
it:
(i) shall not, without the express prior written consent of
the 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 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, any Bank or any Lender such
information concerning the Collateral as the Agent, such Bank or such
Lender may from time to time reasonably request, and will permit the
Agent, any Bank or any Lender or any designee of the Agent, any Bank or
any Lender, 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
records and all other papers in the possession of such Debtor which
pertain to the Collateral, 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.
SECTION 4. Holding in Name of Agent, etc. The Agent may from time to time
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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
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;
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(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.
SECTION 5. Voting Rights, Dividends, Payments, etc.
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(a) Notwithstanding certain provisions of Section 4 hereof, so long as
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the Agent has not given the notice referred to in Section 5(b) below:
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(i) 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.
(ii) 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 and the Post-Petition 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 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.
(iii) The Agent shall execute and deliver, or cause to be
executed and delivered, to the applicable Debtor all such proxies,
powers of attorney, dividend orders 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 (i) above and to receive the dividends which it is authorized to
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retain pursuant to clause (ii) above.
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(iv) Each Debtor shall be entitled to (A) collect all regular
payments made or proceeds received with respect to Collateral
consisting of instruments
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and other securities (other than shares of stock which is governed by
clauses (i)-(iii) above) and (B) enforce and prosecute all rights and
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remedies available under any of such instrument and other securities.
(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
Debtors are entitled to exercise pursuant to Section 5(a)(i) hereof, and
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all rights of the Debtors to receive and retain dividends pursuant to
Section 5(a)(ii) hereof, shall forthwith cease, and all such rights and
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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. Any and all
money and other property paid over to or received by the Agent pursuant to
this Section 5(b) shall be retained by the Agent as additional Collateral
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hereunder and applied in accordance with the provisions hereof.
SECTION 6. Remedies.
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(a) 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:
(i) may, to the fullest extent permitted by applicable law,
without notice, advertisement, hearing or process of law of any kind,
(A) 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 (B) bid for and purchase any or all of the
Collateral at any such public sale; and
(ii) 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.
(b) 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 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 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
Agent), and any balance of such proceeds shall be applied by the Agent
toward the payment of such of the Liabilities, and in such order of
application as required by that certain Intercreditor Agreement, dated as
of May 16, 2002, among Bank of America, National Association, Royal Bank of
Scotland, PLC, and Oaktree Capital Management, LLC (the "Intercreditor
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Agreement") (and, after payment in full of all Liabilities, any excess
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shall be delivered to the applicable Debtor or as a court of competent
jurisdiction shall direct).
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(c) 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:
(i) 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
(ii) 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 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.
(d) The application of any cash proceeds under this Section 6, as
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between the Agent, the Banks and the Lenders, shall be governed by the
Intercreditor Agreement.
SECTION 7. General.
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(a) This Agreement shall be subject to the provisions of the
Intercreditor Agreement including, without limitation, exercise of rights
and remedies hereunder.
(b) 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 any applicable Debtor 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 any Debtor, shall be deemed of itself a failure to
exercise reasonable care in the custody or preservation of any Collateral.
(c) 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 with the Consent of the
Majority Lenders under the Post-Petition Credit Agreement and the Required
Banks under the Credit Agreement, and then such amendment, modification,
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
(d) All obligations of the Debtors and all rights, powers and remedies
of the Agent, the Banks and the Lenders expressed herein are in addition to
all other rights, powers and remedies possessed by them, including, without
limitation, those provided by
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applicable law or in any other written instrument or agreement relating to
any of the Liabilities or any security therefor.
(e) 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
Agent, any Bank or any Lender to any of the Liabilities is or must be
rescinded or returned by the Agent, such Bank or such Lender 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 Agent,
such Bank or such Lender, and this Agreement shall continue to be effective
or be reinstated, as the case may be, as to such Liabilities, all as though
such application by the Agent, such Bank or such Lender had not been made.
(f) 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.
(g) This Agreement shall be binding upon each Debtor and the Agent and
their respective successors and assigns, and shall inure to the benefit of
each Debtor and the Agent and the successors and assigns of the 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.
(h) 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 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.
(i) ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EVIDENCING OR RELATING
TO ANY OF THE LIABILITIES, MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF
THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
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NORTHERN DISTRICT OF ILLINOIS; PROVIDED 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. 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 OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE 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.
(j) EACH DEBTOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
BANK AND EACH LENDER 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 DOCUMENT EVIDENCING OR RELATING TO ANY OF THE
LIABILITIES 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.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as
of the day and year first written above.
APW LTD.
By: /s/ Michael Gasick
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Name:
Title:
APW NORTH AMERICA, INC.
By: /s/ Michael Gasick
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Name:
Title:
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By: /s/ M. Duncan McDuffie
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Name: M. Duncan McDuffie
Title: Managing Director
Signature page for the Amended and Restated Pledge Agreement, dated as of
May 16, 2002, among APW Ltd., APW North America, Inc., and Bank of America,
National Association, as Agent for the Banks and Lenders 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 Amended and Restated Pledge Agreement setting forth all
relevant information with respect to the undersigned):
[ADDITIONAL DEBTOR]
By:_______________________________
Name:
Title: