EXHIBIT 10(xcviii)
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement") is entered into as of
December 17, 2002 by and among HB-PS HOLDING COMPANY, INC., a Delaware
corporation ("Holdings" or the "Pledgor"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, in its capacity as the administrative agent under the Credit
Agreement referred to below (in such capacity, the "Administrative Agent" or the
"Agent").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof (as amended, modified, extended, renewed or replaced from time to time,
the "Credit Agreement"), among Hamilton Beach/Proctor-Silex, Inc., a Delaware
corporation (the "Company"), the other Borrowers identified therein, the Lenders
party thereto from time to time, the Agent and ABN AMRO Bank N.V., Canada
Branch, as Canadian Agent, the U.S. Lenders have agreed to make U.S. Revolving
Loans and to issue or participate in Letters of Credit and the Canadian Lenders
have agreed to make Canadian Revolving Loans and to create Bankers' Acceptances
upon the terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement, the obligation of the U.S. Lenders to make their respective U.S.
Revolving Loans and to issue or participate in Letters of Credit under the
Credit Agreement and the Canadian Lenders to make Canadian Revolving Loans and
to create Bankers' Acceptances under the Credit Agreement that the Pledgor shall
have executed and delivered this Pledge Agreement to the Agent for the benefit
of the Lenders.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the Credit
Agreement, and the following terms which are defined in the Uniform Commercial
Code from time to time in effect in the State of New York (the "UCC") are used
herein as so defined: Control, Entitlement Order, Securities Intermediary,
Securities Account and Security Entitlement. For purposes of this Pledge
Agreement, the term "Lender" shall include any Affiliate of any Lender which has
entered into a Lender Hedging Agreement (to the extent the obligations of any
Borrower thereunder constitute Pledgor Obligations.
2. Pledge and Grant of Security Interest. To secure the prompt
payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Pledgor Obligations, the
Pledgor hereby pledges and assigns to the Agent, for the benefit of the Lenders,
and grants to the Agent, for the benefit of the Lenders, a continuing security
interest in any and all right, title and interest of the Pledgor in and to the
following, whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the "Pledged Collateral"):
(a) Pledged Capital Stock. (i) 100% (or, if less, the
full amount owned by the Pledgor) of each class of the issued and
outstanding Capital Stock of the Company set forth on Schedule 2(a)
attached hereto, together with the certificates (or other agreements or
instruments), if any, representing such Capital Stock, and all options
and other rights, contractual or otherwise, with respect thereto
(collectively, the "Pledged Capital Stock"), including, but not limited
to, the following:
(y) all shares, securities or other equity
interests representing a dividend on any of the Pledged
Capital Stock, or representing a distribution or return of
capital upon or in respect of the Pledged Capital Stock, or
resulting from a stock split, revision, reclassification or
other exchange therefor, and any subscriptions, warrants,
rights or options issued to the holder of, or otherwise in
respect of, the Pledged Capital Stock; and
(z) without affecting the obligations of the
Pledgor under any provision prohibiting such action hereunder
or under the Credit Agreement, in the event of any
consolidation or merger involving the Company and in which the
Company is not the surviving entity, all shares of each class
of the Capital Stock of the successor entity formed by or
resulting from such consolidation or merger.
(b) Proceeds. All proceeds and products of the foregoing,
however and whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby
specifically understood and agreed that the Pledgor may from time to time
hereafter pledge and deliver additional shares of stock or other interests to
the Agent as collateral security for the Pledgor Obligations. Upon such pledge
and delivery to the Agent, such additional shares of stock or other interests
shall be deemed to be part of the Pledged Collateral and shall be subject to the
terms of this Pledge Agreement whether or not Schedule 2(a) is amended to refer
to such additional shares.
3. Security for Pledgor Obligations. The security interest
created hereby in the Pledged Collateral constitutes continuing collateral
security for all of the following, whether now existing or hereafter incurred
(the "Pledgor Obligations"): (a) all of the Obligations, howsoever evidenced,
created, incurred or acquired, whether primary, secondary, direct, contingent,
or joint and several and (b) all reasonable expenses and charges, legal and
otherwise, incurred by the Agent and/or the Lenders in collecting or enforcing
any Obligation or in realizing on or protecting any security therefor, including
without limitation the security granted hereunder.
4. Delivery of the Pledged Collateral; Perfection of Security
Interest. The Pledgor hereby agrees that:
(a) Delivery of Certificate. The Pledgor shall deliver to
the Agent (i) simultaneously with or prior to the execution and
delivery of this Pledge Agreement, all certificates representing the
Pledged Capital Stock and (ii) promptly upon the receipt thereof by or
on behalf of the Pledgor, all other certificates and instruments
constituting
2
Pledged Collateral. Prior to delivery to the Agent, all such
certificates and instruments constituting Pledged Collateral shall be
held in trust by the Pledgor for the benefit of the Agent pursuant
hereto. All such certificates shall be delivered in suitable form for
transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank, substantially in the
form provided in Exhibit 4(a) attached hereto.
(b) Additional Securities. If the Pledgor shall receive
by virtue of its being or having been the owner of any Pledged
Collateral, any (i) certificate, including without limitation, any
certificate representing a dividend or distribution in connection with
any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares or equity
interests, stock splits, spin-off or split-off, promissory notes or
other instrument; (ii) option or right, whether as an addition to,
substitution for, or an exchange for, any Pledged Collateral or
otherwise; (iii) dividends payable in securities; or (iv) distributions
of securities or other equity interests in connection with a partial or
total liquidation, dissolution or reduction of capital, capital surplus
or paid-in surplus, then the Pledgor shall receive such certificate,
instrument, option, right or distribution in trust for the benefit of
the Agent, shall segregate it from the Pledgor's other property and
shall deliver it forthwith to the Agent in the exact form received
together with any necessary endorsement and/or appropriate stock power
duly executed in blank, substantially in the form provided in Exhibit
4(a), to be held by the Agent as Pledged Collateral and as further
collateral security for the Pledgor Obligations.
(c) Financing Statements. The Pledgor shall execute, if
necessary, and deliver to the Agent such UCC or other applicable
financing statements as may be reasonably requested by the Agent in
order to perfect and protect the security interest created hereby in
the Pledged Collateral.
(d) Provisions Relating to Securities Entitlements and
Securities Accounts. With respect to any Pledged Collateral consisting
of a Securities Entitlement or held in a Securities Account, (a) the
Pledgor and the Securities Intermediary shall enter into an agreement
with the Agent granting Control to the Agent over such Pledged
Collateral, such agreement to be in form and substance satisfactory to
the Agent and (b) the Agent shall be entitled, upon the occurrence and
during the continuance of an Event of Default, to notify the applicable
Securities Intermediary that it should follow the Entitlement Orders of
the Agent and no longer follow the Entitlement Orders of the Pledgor.
Upon receipt by the Pledgor of notice from a Securities Intermediary of
its intent to terminate the Securities Account of the Pledgor held by
such Securities Intermediary, prior to the termination of such
Securities Account the Pledged Collateral in such Securities Account
shall be (i) transferred to a new Securities Account which is subject
to a control agreement as provided above or (ii) transferred to an
account held by the Agent (in which it will be held until a new
Securities Account is established).
5. Representations and Warranties. The Pledgor hereby represents
and warrants to the Agent, for the benefit of the Lenders, on the Closing Date
and the date on which any Loan is made or Letter of Credit or Bankers'
Acceptance is issued, that:
3
(a) Authorization of Pledged Capital Stock. The Pledged
Capital Stock is duly authorized and validly issued, is fully paid and
nonassessable and is not subject to the preemptive rights of any
Person. All other shares of Capital Stock constituting Pledged
Collateral will be duly authorized and validly issued, fully paid and
nonassessable and not subject to the preemptive rights of any Person.
(b) Title. The Pledgor has good and indefeasible title to
the Pledged Collateral and will at all times be the legal and
beneficial owner of such Pledged Collateral free and clear of any Lien,
other than Permitted Liens. There exists no "adverse claim" within the
meaning of Section 8-102 of the UCC with respect to the Pledged Capital
Stock.
(c) Exercising of Rights. The exercise by the Agent of
its rights and remedies hereunder will not violate any law or
governmental regulation or any material contractual restriction binding
on or affecting the Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or
action by, and no notice or filing with any Governmental Authority, the
Company or third party is required (except such that have been duly
obtained, made or given, or will be duly obtained, made or given prior
to or contemporaneously with the granting of the security interest
hereunder, and are in full force and effect) either (i) for the pledge
made by the Pledgor or for the granting of the security interest by the
Pledgor pursuant to this Pledge Agreement or (ii) for the exercise by
the Agent or the Lenders of their rights and remedies hereunder (except
as may be required by laws affecting the offering and sale of
securities).
(e) Security Interest/Priority. This Pledge Agreement
creates a valid security interest in favor of the Agent, for the
benefit of the Lenders, in the Pledged Collateral. The taking
possession by the Agent of the certificates (if any) representing the
Pledged Capital Stock and all other certificates and instruments
constituting Pledged Collateral will perfect and establish the first
priority of the Agent's security interest in all certificated Pledged
Capital Stock and such certificates and instruments. Except as set
forth in this Section 5(e), no action is necessary to perfect or
otherwise protect such security interest.
(f) Ownership of Capital Stock. The Pledgor owns 100% of
the issued and outstanding Capital Stock of the Company. The Pledged
Capital Stock is comprised solely of common stock and is as set forth
on Schedule 2(a) attached hereto.
6. Covenants. The Pledgor hereby covenants that so long as any of
the Pledgor Obligations remain outstanding or any Credit Document or Lender
Hedging Agreement is in effect or any Letter of Credit shall remain outstanding,
and until all of the Commitments shall have been terminated, the Pledgor shall:
4
(a) Books and Records. Mark its books and records (and
shall cause the Company to mark its books and records) to reflect the
security interest granted to the Agent, for the benefit of the Lenders,
pursuant to this Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and
ownership of the Pledged Collateral at its own expense against the
claims and demands of all third parties claiming an interest therein,
keep the Pledged Collateral free from all Liens, except for Permitted
Liens, and not sell, exchange, transfer, assign, lease or otherwise
dispose of Pledged Collateral or any interest therein, except as
permitted under the Credit Agreement and the other Credit Documents.
(c) Further Assurances. Promptly execute and deliver at
its expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Agent may
reasonably request in order to (i) perfect and protect the security
interest created hereby in the Pledged Collateral (including, without
limitation, the execution and filing of UCC financing statements and
any and all action necessary to satisfy the Agent that the Agent has
obtained a first priority perfected security interest in all Pledged
Capital Stock); (ii) enable the Agent to exercise and enforce its
rights and remedies hereunder in respect of the Pledged Collateral; and
(iii) otherwise effect the purposes of this Pledge Agreement,
including, without limitation and if requested by the Agent, delivering
to the Agent proxies in respect of the Pledged Collateral, which
proxies shall be irrevocable (i) for so long as any of the Pledgor
Obligations remain outstanding, any Credit Document or any Lender
Hedging Agreement is in effect or any Letter of Credit shall remain
outstanding and (ii) until all of the Commitments shall have been
terminated.
(d) Amendments. Not make or consent to any amendment or
other modification or waiver with respect to any of the Pledged
Collateral or enter into any agreement or allow to exist any
restriction with respect to any of the Pledged Collateral other than
pursuant hereto or as may be permitted under the Credit Agreement.
(e) Compliance with Securities Laws. File all reports and
other information now or hereafter required to be filed by the Pledgor
with the United States Securities and Exchange Commission and any other
state, federal or foreign agency in connection with the ownership of
the Pledged Collateral.
(f) Issuance or Acquisition of Capital Stock. At all
times own 100% of the issued and outstanding Capital Stock of the
Company and cause any Capital Stock acquired after the date hereof to
be listed on Schedule 2(a) hereto and to be pledged to the Agent in
accordance with the terms hereof.
7. Performance of Obligations; Advances by Agent. On failure of
the Pledgor to perform any of the covenants and agreements contained herein, the
Agent may, at its sole option and in its sole discretion, perform or cause to be
performed the same and in so doing may expend such sums as the Agent may
reasonably deem advisable in the performance thereof, including, without
limitation, the payment of any insurance premiums, the payment of any taxes, a
payment to
5
obtain a release of a Lien or potential Lien, expenditures made in defending
against any adverse claim and all other expenditures which the Agent may make
for the protection of the security hereof or which may be compelled to make by
operation of law. All such sums and amounts so expended shall be repayable by
the Pledgor promptly upon timely notice thereof and demand therefor, shall
constitute additional Pledgor Obligations and shall bear interest from the date
said amounts are expended at the default rate set forth in Section 4.2(b) of the
Credit Agreement. No such performance of any covenant or agreement by the Agent
on behalf of the Pledgor, and no such advance or expenditure therefor, shall
relieve the Pledgor of any default under the terms of this Pledge Agreement, the
other Credit Documents or any Lender Hedging Agreement. The Agent may make any
payment hereby authorized in accordance with any bill, statement or estimate
procured from the appropriate public office or holder of the claim to be
discharged without inquiry into the accuracy of such bill, statement or estimate
or into the validity of any tax assessment, sale, forfeiture, tax lien, title or
claim except to the extent such payment is being contested in good faith by the
Pledgor in appropriate proceedings and against which adequate reserves are being
maintained in accordance with U.S. GAAP.
8. Events of Default. The occurrence of an event which under the
Credit Agreement would constitute an Event of Default shall be an event of
default hereunder (an "Event of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence and during the
continuance of an Event of Default, the Agent shall have, in respect of
the Pledged Collateral, in addition to the rights and remedies provided
herein, in the Credit Documents, in any Lender Hedging Agreement or by
law, the rights and remedies of a secured party under the UCC or any
other applicable law.
(b) Sale of Pledged Collateral. Upon the occurrence and
during the continuance of an Event of Default, without limiting the
generality of this Section and without notice, the Agent may, in its
sole discretion, sell or otherwise dispose of or realize upon the
Pledged Collateral, or any part thereof, in one or more parcels, at
public or private sale, at any exchange or broker's board or elsewhere,
at such price or prices and on such other terms as the Agent may deem
commercially reasonable, for cash, credit or for future delivery or
otherwise in accordance with applicable law. To the extent permitted by
law, the Agent and any Lenders may in such event, bid for the purchase
of such securities. The Pledgor agrees that, to the extent notice of
sale shall be required by law and has not been waived by the Pledgor,
any requirement of reasonable notice shall be met if notice, specifying
the place of any public sale or the time after which any private sale
is to be made, is personally served on or mailed, postage prepaid, to
the Pledgor, in accordance with the notice provisions of Section 14.1
of the Credit Agreement at least ten (10) days before the time of such
sale. The Agent shall not be obligated to make any sale of Pledged
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.
6
(c) Private Sale. Upon the occurrence and during the
continuance of an Event of Default, the Pledgor recognizes that the
Agent may deem it impracticable to effect a public sale of all or any
part of the Pledged Collateral and that the Agent may, therefore,
determine to make one or more private sales of any such Pledged
Collateral to a restricted group of purchasers who will be obligated to
agree, among other things, to acquire such Pledged Collateral for their
own account, for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges that any such private sale may
be at prices and on terms less favorable to the seller than the prices
and other terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sale shall be
deemed to have been made in a commercially reasonable manner and that
the Agent shall have no obligation to delay sale of any such Pledged
Collateral for the period of time necessary to permit the Company to
register such Pledged Collateral for public sale under the Securities
Act of 1933. The Pledgor further acknowledges and agrees that any offer
to sell such Pledged Collateral which has been (i) publicly advertised
on a bona fide basis in a newspaper or other publication of general
circulation in the financial community of New York, New York (to the
extent that such offer may be advertised without prior registration
under the Securities Act of 1933), or (ii) made privately in the manner
described above shall be deemed to involve a "public sale" under the
UCC, notwithstanding that such sale may not constitute a "public
offering" under the Securities Act of 1933, and the Agent may, in such
event, bid for the purchase of such Pledged Collateral.
(d) Retention of Pledged Collateral. In addition to the
rights and remedies hereunder, upon the occurrence and during the
continuance of an Event of Default, the Agent may, after providing the
notices and obtaining the consents required by Sections 9-620 and 9-621
of the UCC or otherwise complying with the requirements of applicable
law of the relevant jurisdiction, accept or retain all or any portion
of the Pledged Collateral in satisfaction of the Pledgor Obligations.
Unless and until the Agent shall have provided such notices, however,
the Agent shall not be deemed to have retained any Pledged Collateral
in satisfaction of the Pledgor Obligations for any reason.
(e) [RESERVED].
(f) Other Security. To the extent that any of the Pledgor
Obligations are now or hereafter secured by property other than the
Pledged Collateral (including, without limitation, real and other
personal property owned by the Borrowers), or by a guarantee,
endorsement or property of any other Person, then the Agent and the
Lenders shall have the right to proceed against such other property,
guarantee or endorsement upon the occurrence and during the continuance
of any Event of Default, and the Agent and the Lenders have the right,
in their sole discretion, to determine which rights, security, liens,
security interests or remedies the Agent and the Lenders shall at any
time pursue, relinquish, subordinate, modify or take with respect
thereto, without in any way modifying or affecting any of them or any
of the Agent's and the Lenders' rights or the Pledgor Obligations under
this Pledge Agreement, under any other of the Credit Documents or under
any Lender Hedging Agreement.
7
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, the Pledgor hereby designates and appoints
the Agent, on behalf of the Lenders, and each of its designees or
agents as attorney-in-fact of the Pledgor, irrevocably and with power
of substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuation of an Event of
Default:
(i) to demand, collect, settle,
compromise, adjust and give discharges and releases, all as
the Agent may reasonably determine;
(ii) to commence and prosecute any
actions at any court for the purposes of collecting any of the
Pledged Collateral and enforcing any other right in respect
thereof;
(iii) to defend, settle, adjust or
compromise any action, suit or proceeding brought and, in
connection therewith, give such discharge or release as the
Agent may deem reasonably appropriate;
(iv) to pay or discharge taxes, liens,
security interests, or other encumbrances levied or placed on
or threatened against the Pledged Collateral;
(v) to direct any parties liable for
any payment under any of the Pledged Collateral to make
payment of any and all monies due and to become due thereunder
directly to the Agent or as the Agent shall direct;
(vi) to receive payment of and receipt
for any and all monies, claims, and other amounts due and to
become due at any time in respect of or arising out of any
Pledged Collateral;
(vii) to sign and endorse any drafts,
assignments, proxies, stock powers, verifications, notices and
other documents relating to the Pledged Collateral;
(viii) to execute and deliver all
assignments, conveyances, statements, financing statements,
renewal financing statements, pledge agreements, affidavits,
notices and other agreements, instruments and documents that
the Agent may determine necessary in order to perfect and
maintain the security interests and liens granted in this
Pledge Agreement and in order to fully consummate all of the
transactions contemplated herein;
(ix) to exchange any of the Pledged
Collateral or other property upon any merger, consolidation,
reorganization, recapitalization or other readjustment of the
issuer thereof and, in connection therewith, deposit any of
the
8
Pledged Collateral with any committee, depository, transfer
agent, registrar or other designated agency upon such terms as
the Agent may determine;
(x) to vote for a shareholder
resolution, or to sign an instrument in writing, sanctioning
the transfer of any or all of the Pledged Capital Stock into
the name of the Agent or one or more of the Lenders or into
the name of any transferee to whom the Pledged Capital Stock
or any part thereof may be sold pursuant to Section 9 hereof;
and
(xi) to do and perform all such other
acts and things as the Agent may reasonably deem to be
necessary, proper or convenient in connection with the Pledged
Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable (i) for so long as any of the Pledgor Obligations remain
outstanding, any Credit Document or any Lender Hedging Agreement is in
effect or any Letter of Credit or any Bankers' Acceptance shall remain
outstanding and (ii) until all of the Commitments shall have been
terminated. The Agent shall be under no duty to exercise or withhold
the exercise of any of the rights, powers, privileges and options
expressly or implicitly granted to the Agent in this Pledge Agreement,
and shall not be liable for any failure to do so or any delay in doing
so. The Agent shall not be liable for any act or omission or for any
error of judgment or any mistake of fact or law in its individual
capacity or its capacity as attorney-in-fact except acts or omissions
resulting from its gross negligence or willful misconduct. This power
of attorney is conferred on the Agent solely to protect, preserve and
realize upon its security interest in the Pledged Collateral.
(b) Assignment by the Administrative Agent. The
Administrative Agent may from time to time assign the Pledgor
Obligations and the Pledged Collateral to a successor Administrative
Agent appointed pursuant to Section 13.9 of the Credit Agreement, and
such successor shall be entitled to all of the rights and remedies of
the Administrative Agent under this Pledge Agreement in relation
thereto.
(c) The Agent's Duty of Care. Other than the exercise of
reasonable care to ensure the safe custody of the Pledged Collateral
while being held by the Agent hereunder, the Agent shall have no duty
or liability to preserve rights pertaining thereto, it being understood
and agreed that the Pledgor shall be responsible for preservation of
all rights in the Pledged Collateral, and the Agent shall be relieved
of all responsibility for Pledged Collateral upon surrendering it or
tendering the surrender of it to the Pledgor. The Agent shall be deemed
to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if such Pledged Collateral is
accorded treatment substantially equal to that which the Agent accords
its own property, which shall be no less than the treatment employed by
a reasonable and prudent agent in the industry, it being understood
that the Agent shall not have responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to any Pledged
Collateral, whether or not the Agent has
9
or is deemed to have knowledge of such matters; or (ii) taking any
necessary steps to preserve rights against any parties with respect to
any Pledged Collateral.
(d) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default
shall have occurred and be continuing, to the extent permitted
by law, the Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any
part thereof for any purpose not inconsistent with the terms
of this Pledge Agreement or the Credit Agreement; and
(ii) Upon the occurrence and during the
continuance of an Event of Default and receipt of notice from
the Agent, all rights of the Pledgor to exercise the voting
and other consensual rights which it would otherwise be
entitled to exercise pursuant to paragraph (i) of this
subsection (d) shall cease and all such rights shall thereupon
become vested in the Agent which shall then have the sole
right to exercise such voting and other consensual rights.
(e) Dividend and Distribution Rights in Respect of the
Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing and subject to Section 4(b) hereof,
the Pledgor may receive and retain any and all dividends
(other than stock or ownership interest dividends and other
dividends constituting Pledged Collateral which are addressed
hereinabove), distributions or interest paid in respect of the
Pledged Collateral to the extent they are allowed under the
Credit Agreement.
(ii) Upon the occurrence and during the
continuation of an Event of Default:
(A) all rights of the Pledgor to
receive the dividends, distributions and interest
payments which it would otherwise be authorized to
receive and retain pursuant to paragraph (i) of this
subsection (e) shall cease and all such rights shall
thereupon be vested in the Agent which shall then
have the sole right to receive and hold as Pledged
Collateral such dividends, distributions and interest
payments; and
(B) all dividends, distributions and
interest payments which are received by the Pledgor
contrary to the provisions of clause (A) of this
paragraph (ii) shall be received in trust for the
benefit of the Agent, shall be segregated from other
property or funds of the Pledgor, and shall be
forthwith paid over to the Agent as Pledged
Collateral in the exact form received, to be held by
the Agent as Pledged Collateral and as further
collateral security for the Pledgor Obligations.
10
(f) Release of Pledged Collateral. The Agent may release
any of the Pledged Collateral from this Pledge Agreement or may
substitute any of the Pledged Collateral for other Pledged Collateral
without altering, varying or diminishing in any way the force, effect,
lien, pledge or security interest of this Pledge Agreement as to any
Pledged Collateral not expressly released or substituted, and the
security interest created by this Pledge Agreement shall continue as a
first priority lien on all Pledged Collateral not expressly released or
substituted.
(g) Filing of Financing Statements. The Pledgor
authorizes the Agent to file financing statements (including renewal
statements and in lieu statements) and amendments thereof and
supplements thereto with respect to the Pledged Collateral in such form
and in such filing offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this
Pledge Agreement. Any financing statement filed by the Agent may
contain a general description of the collateral covered thereby, as
permitted by the UCC, which may state that the security interest
attaches to all personal property of the debtor.
11. Rights of Required Lenders. All rights of the Agent hereunder,
if not exercised by the Agent, may be exercised by the Required Lenders.
12. Application of Proceeds. Upon the occurrence and during the
continuation of an Event of Default, any payments in respect of the Pledgor
Obligations and any proceeds of any Pledged Collateral, when received by the
Agent or any of the Lenders in cash or its equivalent, will be applied in
reduction of the Pledgor Obligations in the order set forth in Section 4.7 of
the Credit Agreement, and the Pledgor irrevocably waives the right to direct the
application of such payments and proceeds and acknowledges and agrees that the
Agent shall have the continuing and exclusive right to apply and reapply any and
all such payments and proceeds in the Agent's sole discretion, notwithstanding
any entry to the contrary upon any of its books and records.
13. Costs of Counsel. If at any time hereafter, whether upon the
occurrence of an Event of Default or not, the Agent employs counsel to prepare
or consider amendments, waivers or consents with respect to this Pledge
Agreement, or to take action or make a response in or with respect to any legal
or arbitral proceeding relating to this Pledge Agreement or relating to the
Pledged Collateral, or to protect the Pledged Collateral or exercise any rights
or remedies under this Pledge Agreement or with respect to the Pledged
Collateral, then the Pledgor agrees to promptly pay upon demand any and all such
reasonable costs and expenses of the Agent, all of which costs and expenses
shall constitute Pledgor Obligations hereunder.
14. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect so long as
any of the Pledgor Obligations remain outstanding or any Credit
Document or Lender Hedging Agreement is in effect or any Letter of
Credit shall remain outstanding, and until all of the Commitments
thereunder shall have terminated. Upon such payment and termination,
this Pledge Agreement shall be automatically terminated and the Agent
shall, upon the request and at the expense of the
11
Pledgor, forthwith release all of its liens and security interests
hereunder and shall execute, if necessary, and deliver all UCC
termination statements and/or other documents reasonably requested by
the Pledgor evidencing such termination. Notwithstanding the foregoing
all releases and indemnities provided hereunder shall survive
termination of this Pledge Agreement.
(b) This Pledge Agreement shall continue to be effective
or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Pledgor Obligations is
rescinded or must otherwise be restored or returned by the Agent or any
Lender as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had
not been made; provided that in the event payment of all or any part of
the Pledgor Obligations is rescinded or must be restored or returned,
all reasonable costs and expenses (including without limitation any
reasonable legal fees and disbursements) incurred by the Agent or any
Lender in defending and enforcing such reinstatement shall be deemed to
be included as a part of the Pledgor Obligations.
15. Amendments; Waivers; Modifications. This Pledge Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except as set forth in Section 14.6 of the Credit Agreement.
16. Successors in Interest. This Pledge Agreement shall create a
continuing security interest in the Pledged Collateral and shall be binding upon
the Pledgor, its successors and assigns and shall inure, together with the
rights and remedies of the Agent and the Lenders hereunder, to the benefit of
the Agent and the Lenders and their successors and permitted assigns; provided,
however, the Pledgor may not assign its rights or delegate its duties hereunder
without the prior written consent of each Lender or the Required Lenders, as
required by the Credit Agreement. To the fullest extent permitted by law, the
Pledgor hereby releases the Agent and each Lender, and its successors and
assigns, from any liability for any act or omission relating to this Pledge
Agreement or the Pledged Collateral, except for any liability arising from the
gross negligence or willful misconduct of the Agent, or such Lender, or its
officers, employees or agents.
17. Notices. All notices required or permitted to be given under
this Pledge Agreement shall be in conformance with Section 14.1 of the Credit
Agreement. Any notice to be given to the Pledgor may be given at the following
address:
HB-PS Holding Company, Inc.
4421 Waterfront Drive
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Telephone: 804-527-7100
Telecopy: 804-527-7218
With a copy to:
12
HB-PS Holding Company, Inc.
4421 Waterfront Drive
Glen Allen, Virginia 23060
Attention: General Counsel
Telephone: 804-527-7100
Telecopy: 804-527-7218
18. Counterparts. This Pledge Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
19. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning,
construction or interpretation of any provision of this Pledge Agreement.
20. Governing Law; Submission to Jurisdiction and Service of
Process; Waiver of Jury Trial.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Pledge Agreement shall
be brought in state court in Mecklenburg County, North Carolina or New
York County, New York, or in any federal court for the Western District
of North Carolina or for the Southern District of New York, and, by
execution and delivery of this Pledge Agreement, the Pledgor hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of such
courts. The Pledgor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out in Section 17, such
service to become effective three (3) days after such mailing. Nothing
herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against the Pledgor in any
other jurisdiction.
(b) The Pledgor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Pledge Agreement brought in the courts referred to in subsection
(a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES TO THIS PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
13
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
21. Severability. If any provision of this Pledge Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
22. Entirety. This Pledge Agreement, the other Credit Documents
and any Lender Hedging Agreement represent the entire agreement of the parties
hereto and thereto, and supersede all prior agreements and understandings, oral
or written, if any, including any commitment letters or correspondence relating
to this Pledge Agreement, the other Credit Documents, any such Lender Hedging
Agreement or the transactions contemplated herein and therein.
23. Survival. All representations and warranties of the Pledgor
hereunder shall survive the execution and delivery of this Pledge Agreement, the
other Credit Documents and any Lender Hedging Agreement, the delivery of the
Notes and the making of the Loans, the issuance of the Letters of Credit and the
creation of Bankers' Acceptances under the Credit Agreement.
24. Judgment Currency.
(a) If for the purposes of obtaining judgment in any
court it is necessary to convert all or any part of the Pledgor
Obligations or any other amount due to the Lenders hereunder or under
any other Credit Document in respect of the Pledgor's obligations
hereunder in any currency (the "Original Currency") into another
currency (the "Other Currency") the Pledgor to the fullest extent that
it may effectively do so, agrees that the rate of exchange used shall
be that at which, in accordance with normal banking procedures, the
Agent could purchase the Original Currency with the Other Currency at
its principal offices in Charlotte, North Carolina on the Business Day
on which the Agent is open for the transaction of its banking business
at such offices immediately preceding the day on which any such
judgment, or any relevant part thereof, is paid or otherwise satisfied.
(b) The obligation of the Pledgor in respect of any sum
due in the Original Currency from it to the Agent or the Lenders
hereunder or under any other Credit Document in respect of the
Pledgor's obligation hereunder shall, notwithstanding any judgment in
any Other Currency, be discharged only to the extent that on the
Business Day following receipt by the Agent of any sum adjudged to be
so due in such Other Currency or of any other sum in any Other Currency
the Agent may, in accordance with its normal banking procedures,
purchase the Original Currency with such Other Currency. If the amount
of the Original Currency so purchased is less than the sum originally
due to the Agent and the Lenders in the Original Currency, the Pledgor
shall, as a separate obligation and notwithstanding any such judgment,
indemnify the Agent
14
against such loss, and if the amount of the Original Currency so
purchased exceeds the sum originally due to the Lenders, the Agent
shall remit such excess to the Pledgor.
[remainder of page intentionally left blank]
15
Each of the parties hereto has caused a counterpart of this Pledge
Agreement to be duly executed and delivered as of the date first above written.
PLEDGOR: HB-PS HOLDING COMPANY, INC.,
a Delaware corporation
By: /s/ J.C. Butler, Jr.
--------------------------------------
Name: J.C. Butler, Jr.
Title: Treasurer
Accepted and agreed to as of the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Steven J. Haas
--------------------------------------
Name: Steven J. Haas
Title: Director