Exhibit 10.9(e)
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement") is dated as of March 11,
2003 and is among Chelsea Court Holdings LLC, a Delaware limited liability
company ("Chelsea"), as the limited partner in 1945/1947 Cedar River C.V. (the
"Issuer"), Candlelight Management LLC, a Delaware limited liability company
("Candlelight"; Chelsea and Candlelight are each a "Company" and collectively,
"Companies"), as the general partner in Issuer, and Bank of America, N.A., as
agent for "Lenders" (as defined below).
W I T N E S S E T H
WHEREAS, pursuant to a Credit Agreement of even date herewith (as
the same may be amended, modified or supplemented from time to time, the "Credit
Agreement") among PEI Holdings, Inc. ("Borrower"), the various financial
institutions as are, or may from time to time become, parties thereto
("Lenders"), and Bank of America, N.A., as a Lender and as agent for the Lenders
("Agent"), Lenders have extended commitments to make credit extensions to
Borrower;
WHEREAS, pursuant to a Master Corporate Guaranty of even date
herewith (as the same may be amended, modified or supplemented from time to
time, the "Guaranty") among Companies, various other affiliates of Borrower,
Lenders and Agent, each Company has guaranteed the Borrower Obligations (as
defined in the Guaranty);
WHEREAS, it is a condition precedent to the making of the initial
Credit Extension and extension of other financial accommodations under the
Credit Agreement that each Company shall have granted the pledge and security
interests contemplated by this Agreement, and each Company desires to grant such
pledge and security interests in order to induce Lenders to extend credit to
Borrower under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and in order to
induce Lenders to make Loans and provide other financial accommodations under
the Credit Agreement, each Company hereby agrees with Agent, for the benefit of
Agent and Lenders as follows:
1. Reference to Credit Agreement. Terms defined in the Credit
Agreement and not otherwise defined herein shall have the respective meanings
provided for in the Credit Agreement. In addition, "Permitted Liens" means those
Liens permitted by Section 7.01 of the Credit Agreement.
2. Pledge. To secure the payment and performance of the "Secured
Obligations" (as defined in Section 3 below), each Company hereby pledges and
hypothecates to Agent, for the benefit of Agent and Lenders, and grants to
Agent, for the benefit of Agent and Lenders, a security interest in, the
following (the "Pledged Collateral"):
(a) the lesser of 65% of such Company's right, title and interest as
a limited partner or general partner (as applicable) in the partnership
interests in the Issuer and 65% of the total combined voting power of all
partnership interests of Issuer entitled to vote, which
pledged partnership interests of such Company as of the Closing Date are
identified on Schedule I hereto (the "Pledged Partnership Interests") and the
certificates, if any, representing the Pledged Partnership Interests, and
subject to Section 2(b) below, distributions at any time or from time to time of
cash and other property, real, personal or mixed, from Issuer upon complete or
partial liquidation thereof or otherwise;
(b) 65% of all additional partnership interests of Issuer at any
time acquired by either Company in any manner, and the certificates, if any,
representing such additional partnership interests (and any such additional
partnership interests shall constitute part of the Pledged Partnership Interests
under this Agreement), and all partnership interest distributions, cash
distributions, cash, instruments, chattel paper and other rights, property or
proceeds and products from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such partnership
interests; provided, however, any additional partnership interests, when
combined with the partnership interests already pledged, neither exceeds 65% of
the partnership interests of Issuer outstanding nor 65% of the total combined
voting power of all classes of partnership interests of Issuer entitled to vote;
and
(c) all proceeds of any of the foregoing.
3. Security for Obligations. This Agreement secures the payment and
performance of the Obligations (as defined in the Credit Agreement) and the
obligations of each Company under this Agreement and the Guaranty (all such
debts, obligations and liabilities of each Company being collectively called the
"Secured Obligations").
4. Delivery of Pledged Collateral. All certificates, if any,
representing or evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of Agent pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed undated
instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to Agent. Agent shall have the right, at any time in its
discretion and without notice to either Company if an Event of Default has
occurred and is continuing to transfer to or to register in the name of Agent or
any of its nominees any or all of the Pledged Collateral. In addition, in
connection with the exercise of its remedies pursuant to Section 12 below
following the occurrence and during the continuance of an Event of Default,
Agent shall have the right to exchange certificates or instruments representing
or evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
5. Representations and Warranties. Each Company represents and
warrants as follows:
(a) Schedule I hereto completely and accurately sets forth the
number of partnership interests of the Issuer being pledged hereunder by each
Company as of the Closing Date. The Pledged Partnership Interests held by each
Company constitute the percentage of the issued and outstanding partnership
interests of Issuer set forth on Schedule I hereto as of the Closing Date.
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(b) No consent of any other Person and no consent, authorization,
approval or other action by, and no notice to or filing with, any Governmental
Authority is required either (i) for the pledge by each Company of the Pledged
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by each Company or (ii) for the exercise by Agent
of the voting or other rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement (except (i) as has
already been obtained or taken , (ii) as may be required in connection with any
disposition of the Pledged Collateral by laws affecting the offering and sale of
securities generally and (iii) as to which the failure of which to obtain would
not be reasonably likely to have a Material Adverse Effect).
(c) None of the Pledged Partnership Interests constitutes margin
stock, as defined in Regulation U of the Board of Governors of the Federal
Reserve System.
(d) As of the date hereof, there are no certificates, instruments or
other documents evidencing the Pledge Collateral
6. Further Assurances.
(a) Each Company will, from time to time, at such Company's expense,
and upon Agent's reasonable request, promptly execute and deliver all further
instruments and documents and take all further action that may be reasonably
necessary, in order to perfect and protect any security interest granted or
purported to be granted hereby, to enable Agent to exercise and enforce the
rights and remedies of Agent hereunder with respect to any Pledged Collateral or
to carry out the provisions and purposes hereof. Without limiting the generality
of the foregoing, each Company will: (i) upon Agent's reasonable request, appear
in and defend any action or proceeding that may affect such Company's title to
or Agent's security interest in the Pledged Collateral; and (ii) promptly after
the purchase or other acquisition thereof, deliver to Agent all Pledged
Partnership Interests hereunder.
(b) Each Company will, promptly upon request, provide to Agent all
information and evidence it may reasonably request concerning the Pledged
Collateral to enable Agent to enforce the provisions of this Agreement.
(c) Each Company will, promptly upon the purchase or acquisition of
any additional partnership interests of Issuer, deliver to Agent such Pledged
Partnership Interests as required by Section 4 above, together with the other
documents required under Section 4 above.
7. Voting Rights; Distributions; Etc.
(a) So long as no Event of Default shall have occurred and is
continuing and Agent shall not have delivered to a Company notice of its
election to exercise the rights set forth in subsection (b) below:
(i) Each Company shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Collateral or any
part
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thereof; provided, however, that such Company shall not exercise or shall
refrain from exercising any such right if, in Agent's reasonable judgment,
such action or inaction would have a material adverse effect on the value
of the Pledged Collateral taken as a whole or any material part thereof.
(ii) To the extent permitted under the Credit Agreement, each
Company shall be entitled to receive (A) any cash distribution and other
cash distributions paid or payable with respect to any of the Pledged
Collateral, and (B) any and all instruments, chattel paper and other
rights, property or proceeds and products (other than cash or checks)
received, receivable or otherwise distributed in respect of any Pledged
Collateral.
(b) If an Event of Default has occurred and is continuing:
(i) All rights of each Company to exercise the voting and other
consensual rights which such Company would otherwise be entitled to
exercise pursuant to subsection 7(a)(i), shall cease to be effective upon
notice by Agent to such Company of Agent's intent to exercise its rights
hereunder, and upon delivery of such notice become vested in Agent who
shall thereupon have the sole right to exercise such voting and other
consensual rights. In order to effect the foregoing, each Company hereby
grants Agent an irrevocable proxy to vote the Pledged Collateral and each
Company agrees to execute such other proxies as Agent shall reasonably
require.
(ii) All rights of each Company to receive and retain any cash
distribution and other distributions shall cease upon notice by Agent to
such Company and any such cash distribution and other distributions paid
or payable with respect to any of the Pledged Collateral shall be paid to
Agent and held by Agent to secure the Secured Obligations until the
earlier of (a) such time as such Event of Default is cured or waived and
(b) such time as the Required Lenders elect to apply such cash
distribution and other distributions to the Secured Obligations (any such
application to be in such order and manner set forth in Section 8.03 of
the Credit Agreement). All cash distributions and distributions which are
received by either Company contrary to the provisions of this subsection
7(b) shall be received in trust for the benefit of Agent, shall be
segregated from other funds of such Company and shall be forthwith paid
over to Agent as Pledged Collateral in the same form as so received (with
any necessary endorsement).
8. Transfers and Other Liens; Additional Partnership Interests.
(a) Except as permitted under the Credit Agreement and the other
Loan Documents, each Company agrees that such Company will not (i) encumber,
sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral or (ii) enter
into any other Contractual Obligations (including without limitation any voting
or partnership agreement) which could reasonably be expected
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to restrict or inhibit Agent's rights or ability to vote or sell or otherwise
dispose of the Pledged Collateral or any part thereof after the occurrence of an
Event of Default.
(b) Each Company agrees that it will not cause Issuer to issue any
partnership interests or other securities (including any warrants, options,
subscriptions or other Contractual Obligations for the purchase of partnership
interests or securities convertible into partnership interests) in addition to
or in substitution for the Pledged Partnership Interests.
9. Agent Appointed Attorney-in-Fact. Each Company hereby irrevocably
appoints Agent as such Company's attorney-in-fact effective during the
continuance of an Event of Default, with full authority in the place and stead
of such Company and in the name of such Company, Agent or otherwise, from time
to time in Agent's discretion to take any action (including completion and
presentation of any proxy) and to execute any instrument that Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation (but subject to the other provisions hereof), to (i) receive,
endorse and collect all instruments made payable to such Company representing
any cash distribution or other distribution in respect of the Pledged Collateral
or any part thereof to the extent it is Pledged Collateral; (ii) exercise the
voting and other consensual rights pertaining to the Pledged Collateral; and
(iii) sell, transfer, pledge, make any agreement with respect to or otherwise
deal with any of the Pledged Collateral as fully and completely as though Agent
was the absolute owner thereof for all purposes, and to do, at Agent's option
and such Company's expense, at any time or from time to time, all acts and
things that Agent deems necessary to protect, preserve or realize upon the
Pledged Collateral. Each Company hereby ratifies and approves all acts of Agent
made or taken pursuant to this Section 9. Except as specifically set forth in
Section 11 hereof, neither Agent nor any Person designated by Agent shall be
liable for any acts or omissions or for any error of judgment or mistake of fact
or law. This power of attorney, being coupled with an interest, shall be
irrevocable until all Secured Obligations shall have been paid in full and the
Credit Agreement shall have been terminated.
10. Agent May Perform. If either Company fails to perform any
agreement contained herein, Agent may itself perform, or cause performance of,
such agreement, and the expenses of Agent incurred in connection therewith shall
be payable by such Company under Section 15 hereof, and be a part of the Secured
Obligations.
11. Limitation on Duty of Agent with Respect to the Pledged
Collateral. The powers conferred on Agent hereunder are solely to protect its
interest in the Pledged Collateral and shall not impose any duty on it to
exercise any such powers. Except for the safe custody of any Pledged Collateral
in its possession and the accounting for monies actually received by it
hereunder, Agent shall have no duty with respect to any Pledged Collateral in
its possession (or in the possession of any agent or bailee). Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if it takes such action for that purpose as a
Company reasonably requests in writing, but failure of Agent to comply with any
such request at any time shall not of itself be deemed a failure to exercise
reasonable care. It is expressly agreed that Agent shall have no
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responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not Agent has 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, but Agent may do so and, subject
to Section 15, all expenses incurred in connection therewith shall be payable by
and for the sole account of such Company.
12. Remedies upon Event of Default. If any Event of Default shall
have occurred and is continuing:
(a) Agent may exercise in respect of the Pledged 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 under the Uniform
Commercial Code (the "UCC") in effect in the State of Illinois at that time,
whether or not the UCC applies to the affected Pledged Collateral, and Agent may
also, without notice except as specified below, sell the Pledged Collateral or
any part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of Agent's offices or elsewhere, for cash, on
credit, or for future delivery, at such price or prices and upon such other
terms as Agent deems commercially reasonable. Each Company agrees that, to the
extent notice of sale shall be required by law, at least ten (10) days' prior
written notice to such Company 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. At any sale of the Pledged Collateral, if permitted by law, Agent
may bid (which bid may be, in whole or in part, in the form of cancellation of
indebtedness) for the purchase of the Pledged Collateral or any portion thereof.
Agent shall not be obligated to make any sale of Pledged Collateral regardless
of notice of sale having been given. 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) Each Company recognizes that Agent may be unable to effect a
public sale of all or part of the Pledged Collateral and may be compelled to
resort to one or more private sales 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. Each Company acknowledges that any such private sales may be at
prices and on terms less favorable to the seller than if sold at public sales
and agrees that such private sales shall be deemed to have been made in a
commercially reasonable manner, and that Agent shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of time necessary
to permit the issuing corporation of such securities to register such securities
for public sale under the Securities Act of 1933, as from time to time amended
(the "Securities Act"), or under any other requirement of law, even if the
issuing corporation would agree to do so. To the extent permitted by law, each
Company hereby specifically waives all rights of redemption, stay or appraisal
which such Company has or may have under any law now existing or hereafter
enacted.
13. Remedies Cumulative. No failure on the part of Agent to
exercise, and no delay in exercising and no course of dealing with respect to,
any power, privilege or right
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under the other Loan Documents or this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise by Agent of any power,
privilege or right under any of the other Loan Documents or this Agreement
preclude any other or further exercise thereof or the exercise of any other such
power, privilege or right. The powers, privileges and rights in this Agreement
and the Loan Documents are cumulative and are not exclusive of any other
remedies provided by law.
14. Application of Proceeds. If an Event of Default has occurred and
is continuing, the proceeds of any sale of, or other realization upon, all or
any part of the Pledged Collateral shall be applied as provided in Section 8.03
of the Credit Agreement.
15. Expenses. Subject to the provisions of Section 10.04 of the
Credit Agreement, each Company shall promptly pay to Agent all reasonable costs
and expenses of Agent (including reasonable Attorney Costs) in connection with
protecting or perfecting Agent's security interest in the Pledged Collateral or
in connection with any matters contemplated by or arising out of this Agreement
(including without limitation the enforcement of this Agreement), the Credit
Agreement or any of the other Loan Documents.
16. Termination of Security Interests; Release of Collateral. Upon
payment and performance in full of all Secured Obligations and termination of
the Credit Agreement, the security interests granted herein shall automatically
terminate and all rights to the Pledged Collateral shall revert to each Company
(as applicable). Upon such termination of the security interests or release of
any Pledged Collateral, Agent will, at the expense of Companies, return to each
Company (as applicable) all Pledged Collateral then in Agent's possession and
execute and deliver to each Company (as applicable) such documents as such
Company shall reasonably request to evidence the termination of the security
interests or the release of such Pledged Collateral which has not yet
theretofore been sold or otherwise applied or released. Such release shall be
without recourse or warranty to Agent.
17. Amendments, Waivers and Consents. No amendment, modification,
termination or waiver of any provision of this Agreement, or consent to any
departure by either Company therefrom, shall in any event be effective without
the written concurrence of Agent and each Company.
18. Notices. All notices, requests and other communications
hereunder shall be given to each Company at the facsimile number and address set
forth on the signature page hereof and to Agent in accordance with Schedule
10.02 of the Credit Agreement.
19. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither Company may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of Agent and each Lender.
20. Waiver. In addition to any other waivers herein, each Company
waives to the greatest extent it may lawfully do so, and agrees that it shall
not at any time insist upon, plead or in any manner whatever claim or take the
benefit or advantage of, any appraisal,
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valuation, stay, extension, marshalling of assets, redemption or similar law, or
exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by such Company of its obligations
under, or the enforcement by Agent of, this Agreement. Each Company hereby
waives diligence, presentment and demand (whether for nonpayment or protest or
of acceptance, maturity, extension of time, change in nature or form of the
Secured Obligations, acceptance of further security, release of further
security, composition or agreement arrived at as to the amount of, or the terms
of the Secured Obligations, notice of adverse change in such Company's or any
other Person's financial condition or any other fact which might materially
increase the risk to such Company) with respect to any of the Secured
Obligations or all other demands whatsoever. Each Company hereby waives, to the
extent it may lawfully do so, any requirement on the part of any holder of any
Note to mitigate the damages resulting from any default under any Note.
21. Applicable Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED, THAT EACH COMPANY AND AGENT
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
SITTING IN COOK COUNTY, ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
COMPANY AND Agent CONSENT, FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH COMPANY AND Agent
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH COMPANY AND Agent
WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
22. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
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ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
23. Failure or Indulgence Not Waiver; Remedies Cumulative;
Severability.
(a) No failure or delay on the part of Agent or any Lender in the
exercise of, and no course of dealing with respect to, any power, right or
privilege under the Credit Agreement or this Agreement or any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any Default or Event of Default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or any other right, power or privilege. All rights
and remedies existing under the Credit Agreement, this Agreement, the other Loan
Documents or by law afforded are cumulative to, and not exclusive of, any rights
or remedies otherwise available and shall be available to Agent until the
Secured Obligations have been indefeasibly paid in full and the termination of
all Commitments.
(b) The invalidity, illegality or unenforceability of any provision
in or obligation under this Agreement shall not affect or impair the validity,
legality or enforceability of the remaining provisions or obligations under this
Agreement.
24. Survival of Representations. All representations and warranties
of each Company contained in this Agreement shall survive the execution and
delivery of this Agreement.
25. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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Witness the due execution hereof by the duly authorized officer of
the undersigned as of the day first above written.
CHELSEA COURT HOLDINGS LLC
By: Playboy TV International, LLC,
its Sole Member
By: Playboy Entertainment Group, Inc.,
its Sole Member
By /s/ Robert Campbell
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Its Treasurer
-------------------------------------
Address for notices:
Chelsea Court Holdings LLC
c/o PEI Holdings, Inc.
680 North Lake Shore Drive
Chicago, Illinois 60611
Attn: Executive Vice President,
Finance and Operations and
Chief Financial Officer
Facsimile: (312) 649-1395
CANDLELIGHT MANAGEMENT LLC
By: Playboy TV International, LLC,
its Sole Member
By: Playboy Entertainment Group, Inc.,
its Sole Member
By /s/ Robert Campbell
-------------------------------------
Its Treasurer
-------------------------------------
Address for notices:
Candlelight Management LLC
c/o PEI Holdings, Inc.
680 North Lake Shore Drive
Chicago, Illinois 60611
Attn: Executive Vice President,
Finance and Operations and
Chief Financial Officer
Facsimile: (312) 649-1395
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SCHEDULE I
TO PLEDGE AGREEMENT
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Ownership Percentage of Percentage of
Interest Interest Interest Pledged
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1945/1947 Cedar River C.V. 100% 65%
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