Exhibit 4.8
EXECUTION COPY
SOUCY PLEDGE AGREEMENT
SOUCY PLEDGE AGREEMENT, dated as of December 1, 1997, made by
BRANT-ALLEN INDUSTRIES, INC., a Delaware corporation (the "Pledgor") in favor
of CRESTAR BANK, a Virginia banking corporation, as trustee (the "Trustee") for
the benefit of the holders of the Notes (as such term is hereinafter defined).
W I T N E S S E T H :
WHEREAS, the Issuers (as such term is hereinafter defined) have duly
authorized the creation and issuance of the Notes (as such term is hereinafter
defined), and have authorized, executed and delivered the indenture, dated as
of December 1, 1997, among the Issuers, Bear Island Timberlands LLC, the
Pledgor, F.F. Soucy, Inc. and the Trustee, as amended, supplemented or
otherwise modified from time to time ("Indenture");
WHEREAS, the obligations of the Issuers under the Notes and the Indenture
are secured by a pledge by the Pledgor of the Soucy Collateral (as such term is
hereinafter defined);
WHEREAS, the Trustee will designate the Agent (as such term is hereinafter
defined) as agent for the Trustee, and the Agent agrees to perform such duties
and obligations herein in favor of the Trustee;
NOW, THEREFORE, in consideration of the premises, and to induce (i) the
Issuers to enter into the Indenture and (ii) to enhance the creditworthiness of
the Notes, the Pledgor hereby agrees with the Trustee, for the benefit of
Trustee and the holders of the Notes, as follows:
1. Defined Terms. (a) Capitalized terms used but not defined herein shall
be as defined in the Indenture.
(b) The following terms shall have the following meanings:
"Agent": as defined in the definition in the Intercreditor Agreement.
"Agreement": this Pledge Agreement, as the same may be amended, modified
or otherwise supplemented from time to time.
"Bank Credit Agreement": the credit agreement, dated as of December 1,
1997 (as amended, supplemented or otherwise modified from time to time) among
Bear Island Paper Company, LLC (the "Paper Company"), Toronto-Dominion (Texas),
Inc., as administrative agent (in such capacity, the "Paper Company Agent"),
the arranger party thereto and the Lenders parties thereto (the "Paper Company
Lenders").
"Code": the Uniform Commercial Code from time to time in effect in the
State of New York.
"Collateral Documents": the pledge agreement, dated as of December 1,
1997, made by the Pledgor in favor of the Trustee (the "Timberlands Pledge
Agreement"), the pledge and security agreement, dated as of December 1, 1997,
made by the Paper Company in favor of the Trustee (the "Pledge and Security
Agreement"), the Hypothec Agreement and this Agreement, in each case as the
same may be amended, modified or otherwise supplemented from time to time.
"Hypothec Agreement": as defined in the Indenture.
"Indenture": as defined in the recitals hereto.
"Intercreditor Agreement": the intercreditor agreement,
dated as of December 1, 1997, among the Trustee, Issuers,
Toronto-Dominion (Texas), Inc. as agent for the Timberlands Agent
for the benefit of the Timberlands Lenders, and as agent for the
Paper Company Agent for the benefit of the Paper Company Lenders
(the "Agent"), as it may be amended, supplemented or otherwise
modified from time to time.
"Lenders": the collective reference to the Paper Company Lenders and the
Timberlands Lenders.
"Notes": the 10% senior secured notes due 2007, together with the Exchange
Notes exchanged for such notes pursuant to the Indenture.
"Paper Company": as defined in the definition of the Bank Credit
Agreement.
"Paper Company Agent": as defined in the definition of the Bank Credit
Agreement.
"Paper Company Lenders": as defined in the definition of the Bank Credit
Agreement.
"Pledged Stock": the shares of Capital Stock listed on Schedule 1 hereto,
together with all stock certificates, options or rights of any nature
whatsoever that may be issued or granted by Soucy Inc. to the Pledgor while
this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-306(1) of
the Uniform Commercial Code in effect in the State of New York on the date
hereof and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Stock, collections thereon or distributions with
respect thereto.
"Requirement of Law": as defined in the Bank Credit Agreement.
"Secured Obligations": the collective reference to (a) the obligations of
the Issuers under the Indenture, and (b) all obligations and liabilities of the
Pledgor that may arise under or in connection with this Agreement or any other
Collateral Document to which the Pledgor is a party, whether on account of
fees, indemnities, costs, expenses or otherwise that are required to be paid by
the Pledgor pursuant to the terms thereof (including without limitation all
reasonable fees and disbursements of counsel to the Trustee or to the Issuers
that are required to be paid by the Pledgor pursuant to the terms of this
Agreement or any other Collateral Document to which the Pledgor is a party.)
"Securities Act": the Securities Act of 1933, as amended.
"Senior Soucy Pledge Agreement": Soucy Pledge Agreement, as defined in the
Bank Credit Agreement and the Timberlands Loan.
"Soucy Collateral": the Pledged Stock and all Proceeds.
"Soucy Collateral Account": any account established to hold cash Proceeds,
maintained under the dominion and control of the Trustee, subject to withdrawal
by the Trustee for the account of the holders of the Notes only as provided in
paragraph 8(a).
"Soucy Inc.": F.F. Soucy, Inc., a corporation existing under the laws of
the Province of Quebec, Canada, which is the issuer of the Pledged Stock.
"Timberlands Agent": as defined in the definition of the Timberlands Loan.
"Timberlands Lenders": as defined in the definition of the Timberlands
Loan.
"Timberlands Loan": the credit agreement, dated as of December 1, 1997 (as
amended, supplemented or otherwise modified from time to time) among the
Pledgor, Toronto-Dominion (Texas), Inc., as administrative agent (in such
capacity, the "Timberlands Agent") and the Lenders parties thereto (the
"Timberlands Lenders").
(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; Appointment of Agent as agent of
Trustee. (a) The Pledgor hereby pledges in favor of, and grants to, the
Trustee, a security interest in the Soucy Collateral, subject only to those
security interests pledged in the Senior Soucy Pledge Agreement and the
hypothec constituted in the Hypothec Agreement, as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured Obligations.
(b) For purpose of perfecting the prior security interest of the Agent in
the Soucy Collateral and the subordinate security interest of the Trustee in
the Soucy Collateral, the Pledged Stock is being delivered to and held in the
possession of the Agent pursuant to the Senior Soucy Pledge Agreement. Pursuant
to
the Intercreditor Agreement, the Agent has acknowledged that, for purpose of
perfecting the security interest of the Trustee in the Soucy Collateral held in
the possession of the Agent, the Agent holds such Soucy Collateral for the
Trustee pursuant to the terms of the Intercreditor Agreement. The Intercreditor
Agreement provides that when the obligations secured by the Agent's security
interest in such Soucy Collateral have been repaid in full and all commitments
to extend credit which would be secured by such security interest have been
terminated, if this Agreement has not been terminated pursuant to Section 19
hereof, the Agent will deliver possession of such Soucy Collateral to the
Trustee; and upon such delivery to the Trustee all references to rights of the
Agent and delivery requirements to the Agent shall be deemed to refer to the
Trustee, until this Agreement has been terminated pursuant to Section 19
hereof.
3. Stock Powers. Concurrently with the delivery to the Agent of each
certificate representing one or more shares of Pledged Stock, the Pledgor shall
deliver an undated stock power 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 Pledgor has the corporate power and authority and the legal right
to execute and deliver, to perform its obligations under, and to grant the
security interest in the Soucy Collateral pursuant to, this Agreement and has
taken all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the security interest in the Soucy Collateral
pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding obligation of
the Pledgor, enforceable in accordance with its terms, and upon delivery to the
Agent of the stock certificates evidencing the Pledged Stock and completion of
the registration actions required under Quebec Law, the security interest
created pursuant to this Agreement will constitute a valid, perfected security
interest in the Soucy Collateral in favor of the Trustee, enforceable in
accordance with its terms against all creditors of the Pledgor and any Persons
purporting to purchase any Soucy Collateral from the Pledgor, except as against
the security interests created pursuant to the Senior Soucy Pledge Agreement,
and as enforceability may be 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.
(c) The shares of Pledged Stock constitute 65% of all the issued and
outstanding shares of all classes of the capital stock of Soucy Inc.
(d) All the shares of the Pledged Stock have been duly and validly issued
and are fully paid and nonassessable.
(e) The Pledgor is the record and beneficial owner of, and has title to,
the Pledged Stock, free of any and all Liens or options in favor of, or claims
of, any other Person, except the security interests created by this Agreement,
the Hypothec Agreement and the Senior Soucy Pledge Agreement.
5. Covenants. The Pledgor covenants and agrees with the Trustee that, from
and after the date of this Agreement until this Agreement is terminated and the
security interests created hereby are released in accordance with the terms
hereof:
(a) If the Pledgor shall, as a result of its ownership of the Pledged
Stock, become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock dividend
or a distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in substitution of,
as a conversion of, or in exchange for any shares of the Pledged Stock, or
otherwise in respect thereof, the Pledgor shall accept the same as the agent of
the Trustee, hold the same in trust for the Trustee and deliver the same
forthwith to the Trustee in the exact form received, duly indorsed by the
Pledgor in blank, if required, together with an undated stock power covering
such certificate duly executed in blank by the Pledgor and with, if the Trustee
so requests, signature guaranteed, to be held by the Trustee, subject to the
terms hereof, the Hypothec Agreement, the Intercreditor Agreement and the
Senior Soucy Pledge Agreement, as additional collateral security for the
Secured Obligations. Any sums paid upon or in respect of the Pledged Stock upon
the liquidation or dissolution
of Soucy Inc. shall be paid over to the Trustee to be held by it hereunder as
additional collateral security for the Secured Obligations, and in case any
distribution of capital shall be made on or in respect of the Pledged Stock or
any property shall be distributed upon or with respect to the Pledged Stock, in
each case pursuant to the recapitalization or reclassification of the capital
of Soucy Inc. or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Trustee to be held by it hereunder as
additional collateral security for the Secured Obligations. If any sums of
money or property so paid or distributed in respect of the Pledged Stock (other
than distributions permitted to be made or received pursuant to the Credit
Agreements or the Indenture) shall be received by the Pledgor, the Pledgor
shall, until such money or property is paid or delivered to the Trustee, hold
such money or property in trust for the holders of the Notes, segregated from
other funds of the Pledgor, as additional collateral security for the Secured
Obligations.
(b) Except as permitted by any Credit Agreement, so long as such Credit
Agreement is in effect, or the Indenture, without the prior written consent of
the Trustee (which consent will not be unreasonably withheld or delayed), the
Pledgor will not (1) vote to enable, or take any other action to permit, Soucy
Inc. to issue any stock or other equity securities of any nature or to issue
any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of Soucy Inc.
except issuances of equity interests to the Pledgor which constitute Soucy
Collateral hereunder or under the Senior Soucy Pledge Agreement, (2) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Soucy Collateral or any other shares of Capital Stock of Soucy
Inc. owned by the Pledgor (except as permitted pursuant to a transaction not
prohibited, or expressly permitted, by the Bank Credit Agreement or the
Indenture), (3) create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, any of the Soucy Collateral or
any other shares of Capital Stock of Soucy Inc. owned by the Pledgor, or any
interest therein, except for the security interests created by this Agreement
or under the Senior Soucy Pledge Agreement or (4) enter into any agreement or
undertaking restricting the right or ability of the Pledgor or the Trustee
(after foreclosure) to sell, assign or transfer any of the Soucy Collateral
other than such restrictions under the Credit Agreements, the Senior Soucy
Pledge Agreement, the Indenture, this Agreement or the other Collateral
Documents.
(c) The Pledgor shall maintain the security interest created by this
Agreement as a perfected security interest and shall defend such security
interest against claims and demands of all Persons whomsoever except for
permitted liens. At any time and from time to time, upon the written request of
the Trustee, 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 Trustee may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted. If any amount payable under or in connection with
any of the Soucy Collateral (to the extent such amounts are otherwise required
by this Agreement to be paid to the Trustee) shall be or become evidenced by
any promissory note, other instrument or chattel paper, such note, instrument
or chattel paper in excess of $500,000 shall promptly upon receipt be delivered
to the Trustee, duly endorsed in a manner satisfactory to the Trustee, to be
held as Soucy Collateral pursuant to this Agreement.
(d) The Pledgor shall pay, and save the Trustee 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 Soucy Collateral or in connection with
any of the transactions contemplated by this Agreement.
6. Voting Rights. No vote shall be cast or corporate right exercised or
other action taken which, in the Trustee's reasonable judgment, would impair in
any material respect the Soucy Collateral or which would be inconsistent with
or result in any violation of any provision of the Indenture, this Agreement,
or any other Collateral Document.
7. Rights of the Trustee. (a) All money Proceeds received by the Trustee
hereunder shall be held by the Trustee in a Soucy Collateral Account. All
Proceeds while held by the Trustee in a Soucy Collateral Account (or by the
Pledgor in trust for Trustee) shall continue to be held as collateral security
for all the Secured Obligations and shall not constitute payment thereof until
applied as provided in paragraph 8(a).
(b) If an Event of Default shall occur and be continuing and the Trustee
gives notice of its intent to exercise such rights to the Pledgor, to the
extent permitted by the Intercreditor Agreement, (1) the Trustee shall have the
right to receive any and all cash dividends paid in respect of the Pledged
Stock and make applications thereof to the Secured Obligations in such order as
the Trustee may determine, and (2) all shares of the Pledged Stock shall be
registered in the name of the Trustee or its nominee, and the Trustee or its
nominee may thereafter exercise (A) all voting, corporate and other rights
pertaining to such shares of the Pledged Stock at any meeting of shareholders
of Soucy Inc. or otherwise and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
shares of the Pledged Stock as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of
Soucy Inc., or upon the exercise by the Pledgor or the Trustee of any right,
privilege or option pertaining to such shares of the Pledged Stock, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Trustee may
determine), all without liability except to account for property actually
received by it, but the Trustee 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.
8. Remedies. (a) If an Event of Default shall have occurred and be
continuing, at any time at the Trustee's election, the Trustee may apply all or
any part of Proceeds held in any Soucy Collateral Account in payment of the
Secured Obligations ratably in accordance with the Intercreditor Agreement and
as permitted by law.
(b) If an Event of Default shall occur and be continuing, the Trustee, on
behalf of the holders of the Notes, may exercise, in addition to all other
rights and remedies granted in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Secured Obligations, and as
permitted in the Intercreditor Agreement, all rights and remedies of a secured
party under the Code. Without limiting the generality of the foregoing, the
Trustee, to the extent permitted by law and the Intercreditor Agreement,
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 in such
circumstances forthwith collect, receive, appropriate and realize upon the
Soucy Collateral, or any part thereof, and/or may forthwith sell, assign, give
option or options to purchase or otherwise dispose of and deliver the Soucy
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 Trustee 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 Trustee shall have the right upon any such
public sale or sales, and, to the extent permitted by law and the Intercreditor
Agreement, upon any such private sale or sales, to purchase the whole or any
part of the Soucy Collateral so sold, free of any right or equity of redemption
in the Pledgor, which right or equity is waived or released upon the
consummation of such sale. The Trustee 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 Soucy Collateral or in any way relating to the Soucy
Collateral or the rights of the Trustee hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Trustee, to the payment in whole or in part of the Secured Obligations ratably
in accordance with the Intercreditor Agreement and as permitted by law, and
only after such application and after the payment by the Trustee of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Trustee 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 Trustee arising out of
the exercise by the Trustee of any rights hereunder except to the extent
arising out of negligence or bad faith of the Trustee. If any notice of a
proposed sale or other disposition of Soucy 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.
9. Registration Rights; Private Sales. (a) If the Trustee shall determine
to exercise its right to sell any or all of the Pledged Stock pursuant to
paragraph 8(b) hereof, and if in the reasonable opinion of the Trustee it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the Pledgor will
cause Soucy Inc. thereof to (1) execute and deliver, and cause the directors
and officers of Soucy Inc. 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 Trustee, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (2) to use its reasonable efforts to cause the registration
statement relating thereto to become effective and to remain effective for a
period of one year from the date of the first public offering of the Pledged
Stock, or that portion thereof to be sold, and (3) to make all amendments
thereto and/or to the related prospectus which, in the reasonable opinion of
the Trustee, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Pledgor agrees to
cause Soucy Inc. to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions of the United States or Canada which the
Trustee shall 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 Trustee may be unable to effect a
public sale of any or all the Pledged Stock, 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 Trustee shall be under no
obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit Soucy Inc. thereof to register such securities for public
sale under the Securities Act, or under applicable state securities laws of the
United States or Canada, even if Soucy Inc. would agree to do so.
(c) The Pledgor further agrees to use its reasonable 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 Stock pursuant to this Section 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 Trustee, that the Trustee
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 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 under the
Indenture.
10. Irrevocable Authorization and Instruction to Soucy Inc.. The Pledgor
hereby authorizes and instructs Soucy Inc. to comply with any instruction
received by it from the Trustee 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 Soucy Inc. shall be fully protected in so
complying.
11. Trustee's Appointment as Attorney-in-Fact. (a) The Pledgor hereby
irrevocably constitutes and appoints the Trustee and any officer or agent of
the Trustee, 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 Trustee's own
name, from time to time in the Trustee's discretion, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement, including,
without limitation, any financing statements, endorsements, assignments or
other instruments of transfer, which power of attorney is only exercisable if
an Event of Default shall have occurred and be
continuing.
(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(a). All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released in accordance with the
terms hereof.
12. Duty of Trustee. The Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Soucy 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 Trustee deals with similar securities and property
for its own account, except that after the occurrence and during the
continuance of an Event of Default the Trustee shall have no obligation to
invest funds held in any Soucy Collateral Account and may hold the same as
demand deposits. Neither the Trustee nor any of its respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Soucy Collateral or for any delay in doing so (unless
the same shall result from the negligence or bad faith of such Person) or shall
be under any obligation to sell or otherwise dispose of any Soucy Collateral
upon the request of the Pledgor or any other Person or to take any other action
whatsoever with regard to the Soucy Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of the
Code, the Pledgor authorizes the Trustee to file financing statements with
respect to the Soucy Collateral without the signature of the Pledgor in such
form and in such filing offices as the Trustee reasonably determines
appropriate to perfect the security interests of the Trustee under this
Agreement. A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
14. Authority of Trustee. The Pledgor acknowledges that the rights and
responsibilities of the Trustee under this Agreement with respect to any action
taken by the Trustee or the exercise or non-exercise by the Trustee 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 between the
Trustee and the holders of the Notes, be governed by the Indenture and the
Intercreditor Agreement, but, as between the Trustee and the Pledgor, the
Trustee shall be conclusively presumed to be acting as a fiduciary pursuant to
the Indenture with full and valid authority so to act or refrain from acting,
and neither the Pledgor nor the Soucy Inc. shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the Trustee or
the Pledgor to be effective shall be in writing (including by telecopy) and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered three Business Days after being deposited in the
mails, postage prepaid, or in the case of telecopy notice, when received,
addressed as follows:
(1) if to the Trustee, at its address or transmission number for notices
provided below:
Crestar Bank
Attention: Corporate Trust Department
919 Main Street, 10th Floor
Richmond, VA 23219
Phone: (804) 782-5726
Fax: (804) 782-7855
(2) if to the Pledgor, at its address or transmission number for notices
set forth under its signature below.
The Trustee and the Pledgor may change their addresses and transmission numbers
for notices by notice in the manner provided in this Section.
16. 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.
17. 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 Trustee, provided that any provision
of this Agreement may be waived by the Trustee in a letter or agreement
executed by the Trustee or by telex or facsimile transmission from the Trustee.
(b) The Trustee will not by any act (except by a written instrument
pursuant to paragraph 17(a) 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 Trustee, 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 Trustee of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Trustee 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.
18. Senior Soucy Pledge Agreement. The lien and all terms and provisions
of this Agreement are subordinate and subject to the lien and all terms and
provisions of the Senior Soucy Pledge Agreement. Subject to the provisions of
the Intercreditor Agreement, to the extent the Pledgor's performance of any
obligation under this Agreement would result in a default or breach by the
Pledgor under the Senior Soucy Pledge Agreement, then Pledgor shall have no
duty to perform such obligation under this Agreement to the extent that such
performance would constitute a default or breach under the Senior Soucy Pledge
Agreement. Notwithstanding any other provisions of this Agreement, the Trustee
will not accept possession of any Soucy Collateral, or take any action with
respect to Soucy Collateral (including, without limitation, the exercise of any
remedies) except in accordance with and as permitted by the Intercreditor
Agreement.
19. Release of Pledge Agreement. The Pledgor shall be automatically
released from its obligations under this Agreement and this Agreement shall
automatically terminate on the earlier of (a) the date on which all the Secured
Obligations are paid in full, (b) the date on which the Notes are rated
Investment Grade and (c) the date on which the Total Committed Debt is not
greater than $145,000,000; and at the time of such release the Trustee shall
deliver the Soucy Collateral to the Pledgor, and will execute and deliver such
other documents and instruments evidencing such termination and release.
20. Limitation on Recourse. Anything herein to contrary notwithstanding,
the Trustee shall have recourse in respect of the Secured Obligations solely to
the Soucy Collateral and not to the Pledgor personally or to assets of the
Pledgor other than the Soucy Collateral.
21. Intercreditor Agreement. Anything to the contrary set forth herein
notwithstanding, this Agreement shall be subject to and governed by the terms
and conditions of the Intercreditor Agreement.
22. Controlling Agreement. In the case of any conflict, inconsistency, or
ambiguity between the terms of (i) the Indenture and this Agreement, the
Indenture shall control and (ii) the Senior Soucy Pledge Agreement and this
Agreement, the Senior Soucy Pledge Agreement shall control.
23. Section Headings. The section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
24. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Trustee and their respective permitted successors and assigns.
25. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
26. Notwithstanding any other provision of this Agreement, at no time
shall the Pledgor be required to pledge more than 65% of all of the voting
stock of all classes of the capital stock of Soucy Inc.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
BRANT-ALLEN INDUSTRIES, INC.
By /s/ Edward D. Sherrick
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Title Senior Vice President
Address for Notices:
Post Office Box 3443
80 Field Point Road
Greenwich, Connecticut 06830
Phone: 203-661-3344
Fax: 203-661-3349
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Soucy Senior
Subordinated Pledge Agreement dated December 1, 1997, made by Brant-Allen
Industries, Inc. for the benefit of Crestar Bank, as Trustee (the "Pledge
Agreement"). The undersigned agrees for the benefit of the
Trustee as follows:
1. The undersigned will notify the Trustee promptly in writing of the
occurrence of any of the events described in paragraph 5(a) of the Pledge
Agreement.
2. The terms of paragraph 9(c) of the Pledge Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it under
or pursuant to or arising out of Section 9 of the Pledge Agreement.
F.F. SOUCY, INC.
By
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Title
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Address for Notices:
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Telex:
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Fax:
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SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock
Class of Certificate No. of
Stock No. Shares
Common Stock C-5 271,479