JUNIOR PLEDGE AND SECURITY AGREEMENT
JUNIOR PLEDGE AND SECURITY AGREEMENT dated as of ______, 2000
between SUNBEAM CORPORATION (with its successors, the "PLEDGOR") and The
Bank of New York, as Trustee (together with its successors and assigns, the
"TRUSTEE").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to an Indenture dated as of the date hereof (as
the same may be amended from time to time, the "INDENTURE") between the
Pledgor and the Trustee, the Pledgor is issuing its 11% Senior Secured
Subordinated Notes due 2011 (the "SENIOR NOTES"); and
WHEREAS, the Pledgor has agreed to grant a continuing junior
security interest in and to the Collateral (as hereafter defined) to secure
its obligations under the Indenture and such Senior Notes;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Indenture and not
otherwise defined herein have, as used herein, the respective meanings
provided for therein. The following additional terms, as used herein, have
the following respective meanings:
"COLLATERAL" has the meaning assigned to such term in Section 2(A).
"COLLATERAL ACCOUNT" has the meaning assigned to such term in
Section 5(A).
"CONTROL AGREEMENT" has the meaning assigned to such term in
Section 5(A).
"EVENT OF ACCELERATION" means the acceleration of the Senior Notes
pursuant to Section 6.02 of the Indenture.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as of __________, 2000, among the First Lien Representative, the Trustee
and the Pledgor (as amended, supplemented or otherwise modified from time
to time), and any Intercreditor Agreement entered into by the Trustee after
the date hereof pursuant to Section 11.01 of the Indenture.
"ISSUERS" means each of Sunbeam Americas Holdings, Ltd. and Laser
Acquisition Corp., each a direct wholly-owned subsidiary of the Pledgor.
"PLEDGED STOCK" means (i) all the shares of Capital Stock of each
of the Issuers and (ii) any other Capital Stock required to be pledged to
the Trustee pursuant to Section 2(B), together in each case with any
certificates evidencing such shares. The certificates evidencing the shares
of Capital Stock of each of the Issuers are described on Schedule I hereto.
"SECURED OBLIGATIONS" means all amounts payable from time to time
by the Pledgor under the Indenture or the Senior Notes and any renewals and
extensions thereof, including, without limitation: (i) all principal of and
interest (including, without limitation, any interest which accrues after
or would accrue but for the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of the
Pledgor, whether or not allowed or allowable as a claim in any such
proceeding) and premium, if any, on each and any Senior Note, and (ii) all
obligations with respect to fees and expenses of the Trustee (including its
counsel's fees and expenses).
"SECURITY INTERESTS" means the security interests in the Collateral
granted hereunder securing the Secured Obligations.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the Uniform Commercial
Code as in effect on the date hereof shall have the meanings therein
stated.
SECTION 2. The Security Interests. In order to secure the full and
punctual payment of the Secured Obligations in accordance with the terms
thereof, and to secure the performance of all the obligations of the
Pledgor hereunder:
(A) The Pledgor hereby assigns and pledges to and with the
Trustee for the benefit of the Holders and grants to the Trustee
for the benefit of the Holders security interests in all of the
following property of the Pledgor (collectively, the "COLLATERAL"):
(1) the Pledged Stock, and all of its rights and
privileges with respect to the Pledged Stock; and
(2) all proceeds consisting of cash or Equity Interests
of all or any of the collateral described in clause (1)
hereof (including, without limitation, all dividends or
other income from the Pledged Stock, collections thereon or
distributions or payments with respect thereto).
(B) In the event that at any time any Issuer issues any
additional or substitute shares of Capital Stock of any class or
any other equity interests to the Pledgor, the Pledgor will
immediately pledge and deposit with the Trustee certificates
representing all such shares or equity interests as additional
security for the Secured Obligations. All such shares, constitute
Pledged Stock and are subject to all provisions of this Agreement.
(C) The Security Interests are granted as security only and
shall not subject the Trustee or any Holder to, or transfer or in
any way affect or modify, any obligation or liability of the
Pledgor with respect to any of the Collateral or any transaction in
connection therewith.
SECTION 3. Delivery of Pledged Stock. Subject to the terms of the
Intercreditor Agreement, at such time as all obligations under the Senior
Credit Agreement have been satisfied in full in cash or other payment
satisfactory to the Senior Lenders and all lending commitments thereunder
have been terminated, the Pledgor shall deliver to the Trustee the
certificates representing the Pledged Stock in pledge hereunder. All
certificates representing Pledged Stock delivered to the Trustee by the
Pledgor pursuant hereto shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or
assignment in blank, with signatures appropriately guaranteed, and
accompanied by any required transfer tax stamps, all in form and substance
satisfactory to the Trustee.
SECTION 4. Further Assurances.
(A) Subject to the terms of the Intercreditor Agreement, the
Pledgor agrees that it will from time to time, at its expense,
execute, deliver, file and record any financing statement, specific
assignment or other paper and take any other action that may be
necessary or desirable, or that the Trustee may reasonably request,
in order to create, preserve, perfect, confirm or validate any
Security Interest or to enable the Trustee to exercise and enforce
any of its rights, powers or remedies hereunder with respect to any
of the Collateral. To the extent permitted by applicable law, the
Pledgor hereby authorizes the Trustee to execute and file, in the
name of the Pledgor or otherwise, Uniform Commercial Code financing
statements (which may be carbon, photographic, photostatic or other
reproductions of this Agreement or of a financing statement
relating to this Agreement) which the Trustee in its reasonable
discretion may deem necessary or appropriate to further perfect the
Security Interests.
(B) The Pledgor agrees that it will give the Trustee notice of
any change (i) its name, identity or corporate structure in any
manner or (ii) the location of its chief executive office, in each
case within 30 days of such change.
SECTION 5. Collateral Account.
(A) After all obligations under the Senior Credit Agreement
have been satisfied in full in cash or other payment satisfactory to the
Senior Lenders and all lending commitments thereunder have been terminated,
promptly upon and at all times after the receipt of any Net Available Cash
resulting from the Transfer of any Collateral in accordance with the terms
of the Indenture, the Pledgor shall establish and shall thereafter maintain
a collateral account (the "COLLATERAL ACCOUNT") at the offices of the
Trustee or any securities intermediary selected by the Pledgor having a
combined capital and surplus of at least $250 million and having a
long-term debt rating of at least "A3" by Moody's Investors Service, Inc.
and at least "A- -" by Standard & Poor's Rating Group, which shall be
designated as the "Sunbeam Collateral Account" and shall be under the
exclusive dominion and control of the Trustee pursuant to a control
agreement substantially in the form of Exhibit A hereto (the "CONTROL
AGREEMENT") to which the Trustee agrees to execute upon request. Any income
received with respect to the balance from time to time standing to the
credit of the Collateral Account, including any interest or capital gains
on Temporary Cash Investments, shall remain in or be credited to the
Collateral Account. All right, title and interest in and to the cash
amounts credited from time to time to the Collateral Account together with
any Temporary Cash Investments from time to time made pursuant to Section
5(B) shall constitute part of the Collateral hereunder and shall not
constitute payment of the Secured Obligations until applied thereto as
hereinafter provided. At the request of the Pledgor, the Trustee shall
release any amounts in the Collateral Account in order that the Pledgor may
apply such amounts in accordance with Section 4.07 of the Indenture.
(B) Amounts credited to the Collateral Account shall be invested
and re- invested from time to time in such Temporary Cash Investments as
the Pledgor shall determine, which Temporary Cash Investments shall be
subject to the Control Agreement and be under the control of the Trustee.
(C) The Trustee agrees not to deliver a Notice of Sole Control (as
defined in the Control Agreement) until such time as an Event of
Acceleration exists and is continuing.
SECTION 6. Record Ownership of Pledged Stock. Subject to the terms
of the Intercreditor Agreement, upon the occurrence and during the
continuance of any Event of Acceleration, the Trustee may at any time or
from time to time, in its sole discretion, cause any or all of the Pledged
Stock to be transferred of record into the name of the Trustee or its
nominee. The Pledgor will promptly give to the Trustee copies of any
notices or other communications received by it with respect to Pledged
Stock registered in the name of the Pledgor and the Trustee will promptly
give to the Pledgor copies of any notices and communications received by
the Trustee with respect to Pledged Stock registered in the name of the
Trustee or its nominee.
SECTION 7. Right to Receive Distributions on Collateral. Subject to
the terms of the Intercreditor Agreement, after all obligations under the
Senior Credit Agreement have been satisfied in full in cash or other
payment satisfactory to the Senior Lenders and all lending commitments
thereunder have been terminated, upon the occurrence and during the
continuance of any Event of Acceleration, the Trustee shall have the right
to receive and to retain as Collateral hereunder all dividends, interest
and other payments and distributions made upon or with respect to the
Collateral and the Pledgor shall take all such action as the Trustee may
deem necessary or appropriate to give effect to such right. All such
dividends, interest and other payments and distributions which are received
by the Pledgor shall be received in trust for the benefit of the Trustee
and the Holders and, if the Trustee so directs during the continuance of an
Event of Acceleration, shall be segregated from other funds of the Pledgor
and shall, forthwith upon demand by the Trustee during the continuance of
an Event of Acceleration, be paid over to the Trustee as Collateral in the
same form as received (with any necessary endorsement). After the recision
of an acceleration of the Senior Notes pursuant to the Indenture, the
Trustee's right to retain dividends, interest and other payments and
distributions under this Section 7 shall cease and the Trustee shall pay
over to the Pledgor any such Collateral retained by it during the
continuance of an Event of Acceleration.
SECTION 8. Right to Vote Pledged Stock. Subject to the terms of the
Intercreditor Agreement, unless an Event of Acceleration shall have
occurred and be continuing, the Pledgor shall have the right, from time to
time, to vote and to give consents, ratifications and waivers with respect
to the Pledged Stock, and the Trustee shall, upon receiving a written
request from the Pledgor accompanied by a certificate signed by its
principal financial officer stating that no Event of Default has occurred
and is continuing, deliver to the Pledgor or as specified in such request
such proxies, powers of attorney, consents, ratifications and waivers in
respect of any of the Pledged Stock which is registered in the name of the
Trustee or its nominee as shall be specified in such request and be in form
and substance satisfactory to the Trustee.
Subject to the terms of the Intercreditor Agreement, if an Event of
Acceleration shall have occurred and be continuing, the Trustee shall have
the right to the extent permitted by law and the Pledgor shall take all
such action as may be necessary or appropriate to give effect to such
right, upon receipt of written instructions from the Holders of a majority
in aggregate principal amount of then outstanding Notes, to vote and to
give consents, ratifications and waivers, and take any other action with
respect to any or all of the Pledged Stock with the same force and effect
as if the Trustee were the absolute and sole owner thereof. In the absence
of such instructions, the Trustee shall not vote, give consents,
ratifications and waivers or take any other action with respect to the
Pledged Stock.
SECTION 9. General Authority. The Pledgor hereby irrevocably
appoints the Trustee its true and lawful attorney, with full power of
substitution, in the name of the Pledgor, the Trustee or otherwise, for the
sole use and benefit of the Trustee, but at the expense of the Pledgor, to
the extent permitted by law, subject to the terms of the Intercreditor
Agreement and after all obligations under the Senior Credit Agreement have
been satisfied in full in cash or other payment satisfactory to the Senior
Lenders and all lending commitments thereunder have been terminated, to
exercise, at any time and from time to time while an Event of Acceleration
has occurred and is continuing, all or any of the following powers with
respect to all or any of the Collateral:
(i) to demand, sue for, collect, receive and give acquittance
for any and all monies due or to become due upon or by virtue
thereof,
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and
effectually as if the Trustee were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto;
provided that the Trustee shall give the Pledgor not less than ten days'
prior notice of the time and place of any sale or other intended
disposition of any of the Collateral except any Collateral which is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. The Trustee and the Pledgor agree
that such notice constitutes "REASONABLE NOTIFICATION" within the meaning
of Section 9-504(3) of the Uniform Commercial Code.
SECTION 10. Remedies upon Event of Acceleration. Subject to the
terms of the Intercreditor Agreement, after all obligations under the
Senior Credit Agreement have been satisfied in full in cash or other
payment satisfactory to the Senior Lenders and all lending commitments
thereunder have been terminated, if any Event of Acceleration shall have
occurred and be continuing, the Trustee may exercise all the rights of a
secured party under the Uniform Commercial Code (whether or not in effect
in the jurisdiction where such rights are exercised), and, in addition, the
Trustee may, without being required to give any notice, except as herein
provided or as may be required by mandatory provisions of law, sell the
Collateral or any part thereof at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery, and at such price or prices as the Trustee may deem satisfactory.
The Trustee or any Holder may be the purchaser of any or all of the
Collateral so sold at any public sale (or, if the Collateral is of a type
customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at any private
sale). The Trustee is authorized, in connection with any such sale, if it
deems it advisable so to do, (i) to restrict the prospective bidders on or
purchasers of any of the Pledged Stock to a limited number of sophisticated
investors who will represent and agree that they are purchasing for their
own account for investment and not with a view to the distribution or sale
of any of such Pledged Stock, (ii) to cause to be placed on certificates
for any or all of the Pledged Stock or on any other securities pledged
hereunder a legend to the effect that such security has not been registered
under the Securities Act of 1933 and may not be disposed of in violation of
the provisions of said Act, and (iii) to impose such other limitations or
conditions in connection with any such sale as the Trustee deems necessary
or advisable in order to comply with said Act or any other law. The Pledgor
will execute and deliver such documents and take such other action as the
Trustee deems necessary or advisable in order that any such sale may be
made in compliance with law. Upon any such sale the Trustee shall have the
right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold. Each purchaser at any such sale shall hold the
Collateral so sold absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of the Pledgor
which may be waived, and the Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal
which it has or may have under any law now existing or hereafter adopted.
The notice (if any) of such sale required by this Section 10 shall (1) in
the case of a public sale, state the time and place fixed for such sale,
(2) in the case of a sale at a broker's board or on a securities exchange,
state the board or exchange at which such sale is to be made and the day on
which the Collateral, or the portion thereof so being sold, will first be
offered for sale at such board or exchange, and (3) in the case of a
private sale, state the day after which such sale may be consummated. Any
such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Trustee may fix in the
notice of such sale. At any such sale the Collateral may be sold in one lot
as an entirety or in separate parcels, as the Trustee may determine.
The Trustee shall not be obligated to make any such sale pursuant to any
such notice. The Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale may
be made at any time or place to which the same may be so adjourned. In the
case of any sale of all or any part of the Collateral on credit or for
future delivery, the Collateral so sold may be retained by the Trustee
until the selling price is paid by the purchaser thereof, but the Trustee
shall not incur any liability in the case of the failure of such purchaser
to take up and pay for the Collateral so sold and, in the case of any such
failure, such Collateral may again be sold upon like notice. The Trustee,
instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the Security
Interests and sell the Collateral, or any portion thereof, under a judgment
or decree of a court or courts of competent jurisdiction.
SECTION 11. Expenses. The Pledgor agrees that it will forthwith
upon demand pay to the Trustee:
(i) the amount of any taxes which the Trustee may have been
required to pay by reason of the Security Interests or to free any
of the Collateral from any Lien (other than Permitted Liens)
thereon, and
(ii) the amount of any and all out-of-pocket expenses,
including the fees and disbursements of counsel and of any other
experts, which the Trustee may incur in connection with (w) the
administration or enforcement of this Agreement, including such
expenses as are incurred to preserve the value of the Collateral
and the validity, perfection, rank and value of any Security
Interest, (x) the collection, sale or other disposition of any of
the Collateral, (y) the exercise by the Trustee of any of the
rights conferred upon it hereunder or (z) an Event of Acceleration.
SECTION 12. Limitation on Duty of Trustee in Respect of Collateral.
Beyond the exercise of reasonable care in the custody thereof, the Trustee
shall have no duty as to any Collateral in its possession or control or in
the possession or control of any agent or bailee or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto. The Trustee shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to
that which it accords its own property, and shall not be liable or
responsible for any loss or damage to any of the Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any
agent or bailee selected by the Trustee in good faith.
SECTION 13. Application of Proceeds. Subject to the terms of the
Intercreditor Agreement, after all obligations under the Senior Credit
Agreement have been satisfied in full in cash or other payment satisfactory
to the Senior Lenders and all lending commitments thereunder have been
terminated, upon the occurrence and during the continuance of any Event of
Acceleration, the proceeds of any sale of, or other realization upon, all
or any part of the Collateral shall be applied by the Trustee in the
following order of priorities:
first, to payment of the expenses of such sale or other
realization, including reasonable compensation to agents and
counsel for the Trustee, and all expenses, liabilities and advances
incurred or made by the Trustee in connection therewith, and any
other unreimbursed expenses for which the Trustee is to be
reimbursed pursuant to Section 7.07 of the Indenture or Section 11
hereof and unpaid fees owing to the Trustee under the Indenture;
second, to the ratable payment of all other Secured
Obligations, until all Secured Obligations shall have been paid in
full; and
finally, to payment to the Pledgor or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
The Trustee may make distributions hereunder in cash or in kind or,
on a ratable basis, in any combination thereof.
SECTION 14. Concerning the Trustee. The provisions of Article 7 of
the Indenture shall inure to the benefit of the Trustee in respect of this
Agreement and shall be binding upon the parties to the Indenture in such
respect. In furtherance and not in derogation of the rights, privileges and
immunities of the Trustee therein set forth:
(A) The Trustee is authorized to take all such action as is
provided to be taken by it as Trustee hereunder and all other action
reasonably incidental thereto. As to any matters not expressly provided for
herein (including, without limitation, the timing and methods of
realization upon the Collateral) the Trustee shall act or refrain from
acting in accordance with written instructions from the requisite Holders
under the Indenture.
(B) The Trustee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Security Interests in any of
the Collateral, whether impaired by operation of law or by reason of any
action or omission to act on its part hereunder. The Trustee shall have no
duty to ascertain or inquire as to the performance or observance of any of
the terms of this Agreement by the Pledgor.
(C) Notwithstanding anything herein or in the Indenture to the
contrary, in no event shall the Trustee be liable hereunder except for its
gross negligence or willful misconduct.
SECTION 15. Appointment of Co-Trustees. At any time or times, in
order to comply with any legal requirement in any jurisdiction, the Trustee
may appoint another bank or trust company or one or more other persons,
either to act as co-trustee or co-trustees, jointly with the Trustee, or to
act as separate trustee or trustees on behalf of the Holders with such
power and authority as may be necessary for the effectual operation of the
provisions hereof and may be specified in the instrument of appointment
(which may, in the discretion of the Trustee, include provisions for the
protection of such co-agent or separate agent similar to the provisions of
Section 14).
SECTION 16. Termination of Security Interests; Release of Collateral.
(A) Upon the repayment in full of all Secured Obligations, the
Security Interests shall terminate and all rights to the Collateral
shall revert to the Pledgor. At any time and from time to time
prior to such termination of the Security Interests, the Trustee
may release any of the Collateral in accordance with Article 11 of
the Indenture.
(B) Until such time all obligations under the Senior Credit
Agreement have been satisfied in full in cash or other payment
satisfactory to the Senior Lenders and all lending commitments
thereunder have been terminated, upon the Transfer of any
Collateral in accordance with Section 11.03(b) of the Indenture,
the Security Interests in such Collateral shall terminate (but not
Security Interests in the proceeds of such Transfer to the extent
provided herein) and all rights to such Collateral shall revert to
the Pledgor.
(C) At such time all obligations under the Senior Credit
Agreement have been satisfied in full in cash or other payment
satisfactory to the Senior Lenders and all lending commitments
thereunder have been terminated, upon the Transfer of any
Collateral in accordance with Section 11.03(c) of the Indenture,
the Trustee shall release such Collateral (but not any proceeds of
such sale). No such release shall require the consent of any
Holder, and the Trustee shall be fully protected in relying on a
certificate of the Pledgor as to whether any particular Transfer is
permitted by the terms of the Indenture.
(D) Upon any termination of the Security Interests or release
of Collateral in accordance with this Section, the Trustee will, at
the expense of the Pledgor, (i) execute and deliver to the Pledgor
such documents as the Pledgor or the First Lien Representative
shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case
may be, and (ii) promptly return to the Pledgor any Collateral in
its possession.
SECTION 17. Junior Lien; Intercreditor Agreement. Notwithstanding
anything to the contrary herein (i) the terms of this Agreement, the
Security Interests created hereby, and the rights of the Trustee and the
Holders hereunder, are subject to the terms of the Intercreditor Agreement,
(ii) the Liens created hereunder are subordinate and junior in all respects
to the First Lien to the extent and in the manner set forth in the
Intercreditor Agreement and (iii) the exercise of all rights and remedies
by the Trustee pursuant to this Agreement or otherwise in respect of the
Collateral, and the application of any proceeds of any of the Collateral,
are subject to and shall be governed by the terms and conditions of the
Intercreditor Agreement. In the event of any inconsistency between the
provisions of this Agreement and the provisions of the Intercreditor
Agreement, the provisions of the Intercreditor Agreement shall control. In
furtherance of the foregoing, at any time before all obligations under the
Senior Credit Agreement have been paid in full in cash or other payment
satisfactory to the Senior Lenders and all lending commitments thereunder
have been terminated, (a) the Pledgor shall not be required to separately
comply with its obligations under this Agreement to the extent the Pledgor
shall be in compliance with or have otherwise satisfied its corresponding
obligations under the Senior Pledge Agreement (as defined in the
Intercreditor Agreement); compliance with such corresponding obligation
under the Senior Pledge Agreement shall be deemed to be compliance with
such corresponding obligation under this Agreement, and (b) to the extent
the First Lien Representative's rights under the Senior Pledge Agreement
conflict with the Trustee's rights under this Agreement or are the subject
of corresponding rights under this Agreement (i.e., performance of the
Pledgor's covenants, application of proceeds and collection of Collateral),
the First Lien Representative's rights under the Senior Pledge Agreement
shall control, and in either case, no default shall exist hereunder as a
result of the Pledgor's failure to perform such obligations or the
Trustee's inability to exercise such rights under this Agreement.
SECTION 18. Notices. All notices hereunder shall be given in
accordance with Section 12.02 of the Indenture.
SECTION 19. Waivers, Non-Exclusive Remedies. No failure on the part
of the Trustee to exercise, and no delay in exercising and no course of
dealing with respect to, any right under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise by the Trustee of
any right under the Indenture or this Agreement preclude any other or
further exercise thereof or the exercise of any other right. The rights in
this Agreement and the Indenture are cumulative and are not exclusive of
any other remedies provided by law.
SECTION 20. Successors and Assigns. This Agreement is for the
benefit of the Trustee and its successors and assigns. This Agreement shall
be binding on the Pledgor and its successors and assigns.
SECTION 21. Changes in Writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by the Pledgor and the Trustee.
SECTION 22. New York Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, except
as otherwise required by mandatory provisions of law and except to the
extent that remedies provided by the laws of any jurisdiction other than
New York are governed by the laws of such jurisdiction.
SECTION 23. Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in favor of the
Trustee and the Holders in order to carry out the intentions of the parties
hereto as nearly as may be possible; and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not
affect the validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
SUNBEAM CORPORATION
By:______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Name:
Title:
Schedule I - Pledged Stock
EXHIBIT A
This SECURITIES ACCOUNT CONTROL AGREEMENT, dated as of [ ],
among SUNBEAM CORPORATION (the "DEBTOR"), The Bank of New York, as Trustee
(the "SECURED PARTY") and [ ] (the "SECURITIES INTERMEDIARY"). Capitalized
terms used but not defined herein shall have the meaning assigned in the
Junior Pledge and Security Agreement, dated as of July [ ], 2000, between
the Debtor and the Secured Party (the "PLEDGE AGREEMENT"). All references
herein to the "UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York.
SECTION 1. ESTABLISHMENT OF SECURITIES ACCOUNT. The
Securities Intermediary hereby confirms that (i) the Securities
Intermediary has established account number [ ] in the name "[ ], subject
to the security interest of The Bank of New York, as Trustee" (such account
and any successor account, the "Securities Account") and the Securities
Intermediary shall not change the name or account number of the Securities
Account without the prior written consent of the Secured Party, (ii) the
Securities Account is a "securities account" as such term in defined in
Section 8-501(a) of the UCC, (iii) the Securities Intermediary shall,
subject to the terms of this Agreement, treat the Secured Party as entitled
to exercise the rights that comprise any financial asset credited to the
account, (iv) all property delivered to the Securities Intermediary
pursuant to the Pledge Agreement will be promptly credited to the
Securities Account, and (v) all securities or other property underlying any
financial assets credited to the Securities Account shall be registered in
the name of the Securities Intermediary, indorsed to the Securities
Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will
any financial asset credited to the Securities Account be registered in the
name of the Debtor, payable to the order of the Debtor or specially
indorsed to the Debtor except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
SECTION 2. "FINANCIAL ASSETS" ELECTION. The Securities
Intermediary hereby agrees that each item of property (including, without
limitation, investment property, financial asset, security, instrument,
general intangibles or cash) credited to the Securities Account shall be
treated as a "financial asset" within the meaning of Section 8-102(a)(9) of
the UCC.
SECTION 3. ENTITLEMENT ORDERS. If at any time the Securities
Intermediary shall receive an "entitlement order" within the meaning of
Section 8-102(a)(8) of the UCC (i.e., a notification directing the transfer
or redemption of a financial asset credited to the Securities Account)
issued by the Secured Party and relating to the Securities Account, the
Securities Intermediary shall comply with such entitlement order without
further consent by the Debtor or any other person. The Secured Party
covenants to the Debtor not to issue any entitlement orders except upon the
occurrence of an Event of Acceleration; however, the Securities
Intermediary shall comply with all entitlement orders issued by the Secured
Party regardless of whether such orders are authorized by the Pledge
Agreement.
SECTION 4. WAIVER OF SET-OFF. The financial assets and other
items deposited to the Securities Account will not be subject to deduction,
set-off or banker's lien in favor of any person other than the Secured
Party (except that the Securities Intermediary may set off (i) all amounts
due to the Securities Intermediary in respect of the Security
Intermediary's customary fees and expenses for the routine maintenance and
operation of the Securities Account, and (ii) the face amount of any checks
which have been credited to the Securities Account but are subsequently
returned unpaid because of uncollected or insufficient funds).
SECTION 5. CHOICE OF LAW. Both this Agreement and the
Securities Account shall be governed by the laws of the State of New York.
Regardless of any provision in any other agreement, for purposes of the
UCC, New York shall be deemed to be the Securities Intermediary's location
and the Securities Account (as well as the securities entitlements related
thereto) shall be governed by the laws of the State of New York.
SECTION 6. CONFLICT WITH OTHER AGREEMENTS. The Securities
Intermediary hereby confirms and agrees that (i) there are no other
agreements entered into between the Securities Intermediary (in such
capacity) and the Debtor with respect to the Securities Account (except for
any customer agreements), (ii) it has not entered into, and until the
termination of the this agreement will not enter into, any agreement with
any other person relating to the Securities Account and/or any financial
assets credited thereto pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such
other person and (iii) it has not entered into, and until the termination
of this agreement will not enter into, any agreement with the Debtor or the
Secured Party purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as set forth in
Section 3 hereof. In the event of any conflict between this Agreement (or
any portion thereof) and any other agreement now existing (including any
customer agreements) or hereafter entered into, the terms of this Agreement
shall prevail.
SECTION 7. AMENDMENTS. No amendment or modification of this
Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by all of the parties hereto.
SECTION 8. NOTICE OF ADVERSE CLAIMS. Except for the claims
and interest of the Secured Party and of the Debtor in the Securities
Account, the Securities Intermediary does not know of any claim to, or
interest in, the Securities Account or in any "financial asset" (as defined
in Section 8-102(a) of the UCC) credited thereto. If the Securities
Intermediary becomes aware that any person has asserted any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against the Securities
Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Secured Party and the Debtor thereof.
SECTION 9. MAINTENANCE OF SECURITIES ACCOUNT. In addition
to, and not in lieu of, the obligation of the Securities Intermediary to
honor entitlement orders as agreed in Section 3 hereof, the Securities
Intermediary agrees to maintain the Securities Account as follows:
(i) Notice of Sole Control. If at any time the Secured Party
delivers to the Securities Intermediary a Notice of Sole Control in
substantially the form set forth in Exhibit A hereto (a "NOTICE OF SOLE
CONTROL"), the Securities Intermediary agrees that after receipt of such
notice and for so long as such notice remains in effect, it will take all
instruction with respect to the Securities Account solely from the Secured
Party.
(ii) Voting Rights. Except during such time as the
Securities Intermediary has received a Notice of Sole Control pursuant to
subsection (a) hereof and such notice remains in full force and effect, the
Debtor shall direct the Securities Intermediary with respect to the voting
of any financial assets credited to the Securities Account and the
Securities Intermediary shall comply with such directions.
(iii) Permitted Investments. Except during such time as the
Securities Intermediary has received a Notice of Sole Control signed by the
Secured Party and such notice remains in full force and effect, the Debtor
shall direct the Securities Intermediary with respect to the selection of
investments to be made and the Securities Intermediary shall comply with
such directions; provided, however, that the Securities Intermediary shall
not be required to honor any instruction to purchase any investments other
than Temporary Cash Investments.
(iv) Statements and Confirmations. The Securities
Intermediary will promptly send copies of all statements, confirmations and
other correspondence concerning the Securities Account and/or any financial
assets credited thereto simultaneously to each of the Debtor and the
Secured Party at the address set forth in Section II of this Agreement.
(v) Tax Reporting. All items of income, gain, expense and
loss recognized in the Securities Account shall be reported to the Internal
Revenue Service and all state and local taxing authorities under the name
and taxpayer identification number of the Debtor.
SECTION 10. SUCCESSORS. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and
their respective corporate successors or heirs and personal
representatives.
SECTION 11. NOTICES. Any notice, request or other
communication required or permitted to be given under this Agreement shall
be in writing and deemed to have been properly given when delivered in
person, or when sent by telecopy or other electronic means and electronic
confirmation of error free receipt is received or two days after being sent
by certified or registered United States mail, return receipt requested,
postage prepaid, addressed to the party at the address set forth below.
Debtor: [ ]
------------------------------
[Address]
Attention:
Telecopy No:
Secured Party: The Bank of New York
101 Barclay Street
Floor 21W
New York, New York 10286
Telecopy No: 212-815-8915
Securities Intermediary: [ ]
------------------------------
[Address]
Attention:
Telecopy No:
Any party may change his address for notices in the manner
set forth above.
SECTION 12. TERMINATION. The rights and powers granted
herein to the Secured Party have been granted in order to perfect its
security interests in the Securities Account are powers coupled with an
interest and will neither be affected by the bankruptcy of the Debtor nor
by the lapse of time. The obligations of the Securities Intermediary
hereunder shall continue in effect until the security interests of the
Secured Party in the Securities Account has been terminated pursuant to the
terms of the Pledge Agreement and the Secured Party has notified the
Securities Intermediary of such termination in writing.
SECTION 13. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
[______________________________]
By: ___________________________
Name:
Title:
[______________________________]
as Secured Party
____________________________ By:____________________________
Name:
Title:
[______________________________],
as Securities Intermediary
By:____________________________
Name:
Title:
Exhibit A
---------
[Letterhead of Secured Party]
[Date]
[__________________________________]
[Address]
Attention: __________________
Re: Notice of Sole Control
----------------------
Ladies and Gentlemen:
As referenced in the Securities Account Control Agreement,
dated as of [___________], among [____________________], us and you (a copy
of which is attached), we hereby give you notice of our sole control over
securities account number [__________] (the "SECURITIES ACCOUNT") and all
financial assets credited thereto. You are hereby instructed not to accept
any direction, instructions or entitlement orders with respect to the
Securities Account or the financial assets credited thereto from any person
other than the undersigned, unless otherwise ordered by a court of
competent jurisdiction.
You are instructed to deliver a copy of this notice by
facsimile transmission to [__________________________].
Very truly yours,
[_________________________],
as Trustee
By: ______________________
Title
cc: Sunbeam Corporation