1
EXHIBIT 10.5
PLEDGE AGREEMENT
Dated as of May 24, 1999
From
EVE HOLDINGS INC.
as Grantor
in favor of
CITIBANK, N.A.
as Agent
2
T A B L E O F C O N T E N T S
SECTION PAGE
1. Grant of Security.............................................................................................1
2. Security for Obligations......................................................................................2
3. Delivery of Collateral........................................................................................2
4. Representations and Warranties................................................................................2
5. Further Assurances............................................................................................3
6. Place of Perfection; Records..................................................................................3
7. Voting Rights; Dividends; Etc.................................................................................3
8. Transfers and Other Liens; Additional Shares..................................................................4
9. Agent Appointed Attorney-in-Fact..............................................................................4
10. Agent May Perform............................................................................................5
11. The Agent's Duties...........................................................................................5
12. Remedies.....................................................................................................5
13. Indemnity and Expenses.......................................................................................6
14. Amendments; Waivers; Etc.....................................................................................7
15. Addresses for Notices........................................................................................7
16. Continuing Security Interest; Assignments Under the Credit Agreement.........................................7
17. Termination..................................................................................................7
18. Governing Law; Terms.........................................................................................7
Schedule I - Pledged Shares
3
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of May 24, 1999 made by Eve Holdings
Inc., a Delaware corporation, (the "Grantor"), to Citibank, N.A. (as agent, the
"Agent") for the Lenders (as defined below).
PRELIMINARY STATEMENTS:
(1) The Grantor and the Agent have entered into a Credit
Agreement dated as of May 24, 1999 (said Agreement, as it may hereafter be
amended or otherwise modified from time to time, being the "Credit Agreement",
the terms defined therein and not otherwise defined herein being used herein as
therein defined) with Trademarks LLC, a Delaware limited liability company, as
Borrower and the banks, financial institutions and other institutional lenders
party thereto (the "Lenders"). Pursuant to Section 8.01 of the Credit Agreement,
the Grantor has guaranteed all of the Obligations of the Borrower now or
hereafter existing under the Loan Documents.
(2) The Grantor is the owner of the shares of capital stock of
the Borrower described in Schedule I hereto (the "Pledged Shares").
(3) It is a condition precedent to the making of Advances by
the Lenders under the Credit Agreement that the Grantor shall have granted the
assignment and security interest and made the pledge and assignment contemplated
by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Advances under the Credit Agreement, the Grantor
hereby agrees with the Agent for the ratable benefit of itself and the Lenders
as follows:
SECTION 1. Grant of Security. The Grantor hereby assigns and
pledges to the Agent for the ratable benefit of itself and the Lenders, and
hereby grants to the Agent for the ratable benefit of itself and the Lenders, a
security interest in the following (collectively, the "Collateral"):
(i) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares other
than the Initial Distribution to be made on Closing and distributions
of up to $500,000 per annum to be made thereafter;
(ii) all additional shares of stock of the issuer of the
Pledged Shares from time to time acquired by the Grantor in any manner,
and the certificates representing such additional shares, and, except
as provided in Section 1(i), all dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares;
and
4
5
(iii) except as provided in Section 1(i) all proceeds of any
and all of the foregoing Collateral (including, without limitation,
proceeds that constitute property of the types described in this
Section 1).
SECTION 2. Security for Obligations. The pledge and assignment
of, and the grant of a security interest in, the Collateral by the Grantor under
this Agreement secures the payment of all the Obligations of the Borrower and
the Grantor now or hereafter existing under the Loan Documents, whether for
principal, interest, fees, expenses or otherwise (all such Obligations being the
"Secured Obligations"). Without limiting the generality of the foregoing, this
Agreement secures the payment of all amounts that constitute part of the Secured
Obligations and would be owed by the Borrower or the Grantor to the Agent or the
Lenders under the Loan Documents but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower or the Grantor.
SECTION 3. Delivery of Collateral. All certificates or
instruments representing or evidencing Collateral shall be delivered to and held
by or on behalf of the Agent pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Agent. The Agent shall have the right, at any time after the occurrence and
during the continuance of an Event of Default, in its discretion and without
notice to the Grantor, to transfer to or to register in the name of the Agent or
any of its nominees any or all of the Collateral, subject only to the revocable
rights specified in Section 7(a). In addition, the Agent shall have the right at
any time to exchange certificates or instruments representing or evidencing
Collateral for certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. The Grantor
represents and warrants as follows:
(a) The chief place of business and chief executive office of
the Grantor and the office where the Grantor keeps its records
concerning the Collateral are located at the address set forth below
its name on the signature page hereof.
(b) The Grantor is the legal and beneficial owner of the
Collateral free and clear of any Lien, except for the security interest
created by this Agreement and Liens permitted under the Loan Documents
(including, without limitation, the Class B Option). No effective
financing statement or other instrument similar in effect covering all
or any part of the Collateral is on file in any recording office,
except such as may have been filed in favor of the Agent relating to
this Agreement or as permitted under the Loan Documents. The Grantor
has no trade names.
(c) The Pledged Shares have been duly authorized and validly
issued and are fully paid and non-assessable.
(d) The Pledged Shares constitute the percentage of the issued
and outstanding units of limited liability interest of the issuer
thereof indicated on Schedule I.
(e) This Agreement and the pledge of the Collateral pursuant
hereto create a valid and perfected security interest in the
Collateral, prior to all other Liens except Liens permitted by the Loan
Documents (including, without limitation, the Class B Option) and all
filings and other actions necessary or desirable to perfect and protect
such security interests have been duly taken.
5
6
(f) No consent of any other Person and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other third-party is
required either (i) for the grant by the Grantor of the assignment and
security interest granted hereby, for the pledge by the Grantor of the
Collateral pursuant hereto or for the execution, delivery or
performance of this Agreement by the Grantor, (ii) for the perfection
or maintenance of the pledge, assignment and security interest created
hereby (including the priority of such pledge, assignment or security
interest referred to in Section (4)(e) above), except for the retention
by the Agent of possession of the certificates and instruments referred
to in Section 3, or (iii) for the exercise by the Agent of its voting
or other rights provided for in this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement, except as may be
required in connection with the disposition of any portion of the
Collateral by laws affecting the offering and sale of securities
generally.
SECTION 5. Further Assurances. (a) The Grantor agrees that
from time to time, at the expense of the Grantor, it will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Agent may reasonably request, in
order to perfect any pledge, assignment or security interest granted or
purported to be granted hereby or to enable the Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Grantor will execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Agent may
request, in order to perfect and preserve the pledge, assignment and security
interest granted or purported to be granted hereby.
(b) The Grantor hereby authorizes the Agent to file one or
more financing or continuation statements, and amendments thereto, relating to
all or any part of the Collateral without the signature of the Grantor where
permitted by law. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) The Grantor will furnish to the Agent from time to time
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the Agent may reasonably
request, all in reasonable detail.
SECTION 6. Place of Perfection; Records. The Grantor shall
keep its chief place of business and chief executive office and the office where
it keeps its records concerning the Collateral at the location therefor
specified in Section 4(a) or, upon 30 days' prior written notice to the Agent,
at such other locations in a jurisdiction where all actions required by Section
5 shall have been taken with respect to the Collateral. The Grantor will hold
and preserve such records and will permit representatives of the Agent at any
time during normal business hours to inspect and make abstracts from such
records provided that the Agent shall not disclose any confidential information
of the Grantor to which it has been permitted access except (i) as contemplated
by Section 9.11 of the Credit Agreement; or (ii) with the consent of the
Grantor.
SECTION 7. Voting Rights; Dividends; Etc. (a) So long as
no Event of Default shall have occurred and be continuing:
6
7
(i) The Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Collateral or any
part thereof for any purpose not inconsistent with the terms of this
Agreement or the other Loan Documents; provided, however, that the
Grantor shall not exercise or refrain from exercising any such right
if, in the Agent's reasonable judgment, such action would have a
material adverse effect on the value of the Collateral or any part
thereof.
(ii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Grantor all such proxies and other
instruments as the Grantor may reasonably request for the purpose of
enabling the Grantor to exercise the voting and other rights that it is
entitled to exercise pursuant to paragraph (i) above.
(b) Any and all
(i) dividends and other distributions paid or payable other
than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in
exchange for, any Collateral,
(ii) dividends and other distributions paid or payable in
cash in respect of any Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(iii) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Collateral,
other than the Initial Distribution to be made on Closing and distributions of
up to $500,000 per annum made thereafter, shall be, and shall be forthwith
delivered to the Agent to hold as, Collateral and shall, if received by the
Grantor, be received in trust for the benefit of the Agent, be segregated from
the other property or funds of the Grantor and be forthwith delivered to the
Agent as Collateral in the same form as so received (with any necessary
indorsement).
(c) Upon notice to the Grantor by the Agent following the
occurrence and during the continuance of an Event of Default, all rights of the
Grantor to exercise or refrain from exercising the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to Section
7(a)(i) shall cease, and all such rights shall thereupon become vested in the
Agent, which shall, as long as any Event of Default shall be continuing, have
the sole right to exercise or refrain from exercising such voting and other
consensual rights.
SECTION 8. Transfers and Other Liens; Additional Shares. (a)
The Grantor shall not, other than in accordance with the terms of the Credit
Agreement or the Class B Option, (i) sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option (other than the Class B
Option) with respect to, any of the Collateral, or (ii) create or suffer to
exist any Lien upon or with respect to any of the Collateral except for the
pledge, assignment and security interest created by this Agreement.
(b) The Grantor shall pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of the issuer of the Pledged Shares.
7
8
SECTION 9. Agent Appointed Attorney-in-Fact. The Grantor
hereby irrevocably appoints the Agent the Grantor's attorney-in-fact, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, from time to time in the Agent's discretion following the
occurrence and during the continuance of an Event of Default, to take any action
and to execute any instrument that the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:
(a) to ask for, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral,
(b) to receive, indorse and collect any drafts or other
instruments and documents in connection with clause (a) above, and
(c) to file any claims or take any action or institute any
proceedings that the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights
of the Agent with respect to any of the Collateral.
SECTION 10. Agent May Perform. If the Grantor fails to perform
any agreement contained herein, the Agent may itself perform, or cause
performance of, such agreement, and the expenses of the Agent incurred in
connection therewith shall be payable by the Grantor under Section 13(b).
SECTION 11. The Agent's Duties. The powers conferred on the
Agent hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall have no duty as to any
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Agent or any Secured Party has or is deemed to
have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral. The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which the Agent accords its
own property.
SECTION 12. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party upon
default under the Uniform Commercial Code in effect in the State of New
York at such time (the "N.Y. Uniform Commercial Code") (whether or not
the N.Y. Uniform Commercial Code applies to the affected Collateral)
and also may (i) require the Grantor to, and the Grantor hereby agrees
that it will at its expense and upon request of the Agent forthwith,
assemble all or part of the Collateral as directed by the Agent and
make it available to the Agent at a place to be designated by the Agent
that is reasonably convenient to both parties and (ii) without notice
except as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the Agent's
offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as the Agent may deem commercially reasonable.
8
9
The Grantor agrees that, to the extent notice of sale shall be required
by law, at least ten days' notice to the Grantor (with a copy to each
of Philip Morris and PM Companies) of the time and place of any public
sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Agent shall not be obligated to
make any sale of Collateral regardless of notice of sale having been
given. The Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) All cash proceeds received by the Agent in respect of any
sale of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Agent, be held by the
Agent as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to the Agent pursuant to Section
13) in whole or in part by the Agent for the ratable benefit of the
Lenders against, all or any part of the Secured Obligations in such
order as the Agent shall elect. Any surplus of such cash or cash
proceeds held by the Agent and remaining after payment in full of all
the Secured Obligations shall be paid over to the Grantor or to
whomsoever may be lawfully entitled to receive such surplus.
(c) The Agent may exercise any and all rights and remedies of
the Grantor in respect of the Collateral.
(d) All payments received by the Grantor under or in
connection with, or in respect of, the Collateral shall be received in
trust for the benefit of the Agent, shall be segregated from other
funds of the Grantor and shall be forthwith paid over to the Agent in
the same form as so received (with any necessary indorsement).
SECTION 13. Indemnity and Expenses. (a) The Grantor agrees to
indemnify the Agent from and against any and all claims, losses and liabilities
growing out of or resulting from this Agreement (including, without limitation,
enforcement of this Agreement), except claims, losses or liabilities resulting
from the Agent's gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(b) The Grantor will upon demand pay to the Agent the amount
of any and all reasonable expenses, including the reasonable fees and expenses
of its counsel and of any experts and agents, that the Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Agent or the Lenders hereunder or (iv) the failure by
the Grantor to perform or observe any of the provisions hereof.
SECTION 14. Amendments; Waivers; Etc. No amendment or waiver
of any provision of this Agreement, and no consent to any departure by the
Grantor herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Grantor and the Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of the Agent to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
9
10
SECTION 15. Addresses for Notices. All notices and other
communications provided for hereunder shall be given, and shall be effective, as
provided in Section 9.02 of the Credit Agreement.
SECTION 16. Continuing Security Interest; Assignments Under
the Credit Agreement. This Agreement shall create a continuing security interest
in the Collateral and shall (a) remain in full force and effect until the
earlier of (i) the later of the payment in full in cash of the Secured
Obligations and the Termination Date and (ii) the exercise by Philip Morris of
the Class B Option, (b) be binding upon the Grantor, its successors and assigns
and (c) inure, together with the rights and remedies of the Agent hereunder, to
the benefit of the Agent, the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing clause
(c), any Lender may assign or otherwise transfer all or any portion of its
rights and obligations under the Credit Agreement (including, without
limitation, all or any portion of its Commitment, the Advances owing to it and
the Term Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender herein or otherwise, in each case only as provided in Section
9.07 of the Credit Agreement.
SECTION 17. Termination. Upon the earlier of (i) the exercise
by Philip Morris of the Class B Option and (ii) the later of the payment in full
in cash of the Secured Obligations and the Termination Date, the pledge,
assignment and security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the Grantor or, if the Class B Option has been
exercised, to Philip Morris, as the case may be. Upon any such termination, the
Agent will, at the Grantor's or Philip Morris? expense, as the case may be,
execute and deliver to the Grantor or Philip Morris such documents as the
Grantor or Philip Morris shall reasonably request to evidence such termination.
SECTION 18. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any particular Collateral are
governed by the laws of a jurisdiction other than the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms used in Article 9 of
the N.Y. Uniform Commercial Code are used herein as therein defined.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
EVE HOLDINGS INC.
By: /s/ Joselynn D. Van Siclen
--------------------------------------
Title: Vice President
Address:
10
SCHEDULE I
PLEDGED SHARES
Stock Certificate Percentage of Outstanding Units of
Class of Stock No(s). Number of Shares Class B LLC Interests
-------------- ------ ---------------- ---------------------
Class B B1 100 100%