THIS EQUITY PLEDGE AGREEMENT (this
“Agreement”) dated as of this 24
th day of October, 2008, between MAIN STREET
CAPITAL CORPORATION, a Maryland corporation (the “
Borrower ”), MAIN STREET EQUITY INTERESTS, INC., a
Delaware corporation (“ MSEI ” and together with
the Borrower, the “ Pledgors ” and each, a
“ Pledgor ”), and BRANCH BANKING AND TRUST
COMPANY (“ BB&T ”), acting as agent (in such
capacity, the “ Administrative Agent ”) for
itself and the other Secured Parties (as defined in the Credit
Agreement referred to below).
WHEREAS, the Administrative Agent and the
Lenders (as defined in the Credit Agreement) have agreed to extend
credit to Borrower pursuant to the terms of that certain Credit
Agreement of even date herewith (as amended, restated, or otherwise
modified from time to time, the “ Credit Agreement
”) among the Pledgors, the other Guarantors, the
Administrative Agent, the Lenders signatory thereto and BB&T
Capital Markets, as Lead Arranger;
WHEREAS, the Pledgors may from time to time
enter into or guarantee one or more Hedge Transactions (as defined
in the Credit Agreement) with the Hedge Counterparties (as defined
in the Credit Agreement);
WHEREAS, each Pledgor beneficially and legally
owns the limited liability company membership interests, limited
partnership interests, stock and other equity interests in the
Guarantor and/or the other Loan Parties and the Subsidiaries (as
each such term is defined in the Credit Agreement) described on
Schedule I attached hereto (the “ Pledged
Entities ”); and
WHEREAS, it is a condition of the Lenders’
agreement to extend credit to Borrower pursuant to the Credit
Agreement that the Administrative Agent, on behalf of the Secured
Parties (as defined in the Credit Agreement), receive a pledge of
the Collateral (as defined below) hereunder by Pledgors’
execution and delivery of this Agreement to secure: (a) the
due and punctual payment by Borrower of: (i) the principal of
and interest on the Notes (including, without limitation, any and
all Revolver Advances), when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or
otherwise and any renewals, modifications or extensions thereof, in
whole or in part; (ii) each payment required to be made by any
Pledgor under the Credit Agreement, when and as due, including
payments in respect of reimbursement of disbursements, interest
thereon, and obligations, if any, to provide cash collateral and
any renewals, modifications or extensions thereof, in whole or in
part; and (iii) all other monetary obligations of any Pledgor
to the Secured Parties under the Credit Agreement and the other
Loan Documents to which any Pledgor is or is to be a party and any
renewals, modifications or extensions thereof, in whole or in part;
(b) the due and punctual performance of all other obligations of
any Pledgor under the Credit Agreement
and the other
Loan Documents to which such Pledgor is or is to be a party, and
any renewals, modifications or extensions thereof, in whole or in
part; (c) the due and punctual payment (whether at the stated
maturity, by acceleration or otherwise) of all obligations
(including any and all Hedging Obligations (as defined in the
Credit Agreement) arising under Hedging Agreements and obligations
which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), indebtedness and liabilities of
any Pledgor, now existing or hereafter incurred under, arising out
of or in connection with any and all Hedging Agreements and any
renewals, modifications or extensions thereof (including, all
obligations, if any, of any Pledgor as guarantor under the Credit
Agreement in respect of Hedging Agreements), and the due and
punctual performance and compliance by each Pledgor with all of the
terms, conditions and agreements contained in any Hedging
Agreements and any renewals, modifications or extensions thereof;
(d) the due and punctual payment and performance of all
indebtedness, liabilities and obligations of any one or more of
Pledgors and the Guarantors arising out of or relating to any Bank
Products; (e) the due and punctual payment and performance of
all indebtedness, liabilities and obligations of any one or more of
Pledgors and the Guarantors arising out of or relating to any Cash
Management Services; and (f) the due and punctual payment and
performance of all obligations of each of the Guarantors under the
Credit Agreement and the other Loan Documents to which they are or
are to be a party and any and all renewals, modifications or
extensions thereof, in whole or in part (all of the foregoing
indebtedness, liabilities and obligations being collectively called
the “ Obligations ”).
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, and for other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. Definitions . Any capitalized
terms used but not defined herein shall have the meanings assigned
to them in the Credit Agreement.
SECTION 2.
Pledge; Perfection .
(a) As collateral security for the due and
punctual payment of the Obligations, each Pledgor hereby pledges,
hypothecates, delivers and assigns and grants unto Administrative
Agent, as agent for itself and the Secured Parties, a security
interest (which security interest shall constitute a first priority
security interest), in all of Pledgor’s membership interests,
limited partnership interests, common stock and other equity
interests in the Pledged Entities and all securities instruments or
other rights convertible into or exercisable for the foregoing (the
“ Equity Interests ”), together with all
proceeds, profits, interests, capital accounts, accounts, contract
rights, general intangibles, deposits, funds, dividends,
distributions, rights to dividends, rights to distributions,
including both distributions of money and of property, and other
rights, claims and interests relating to or arising out of
Pledgor’s Equity Interests, now owned or hereafter acquired,
in the Pledged Entities, together with any and all replacements or
substitutions for or proceeds of all of the foregoing
(collectively, the “ Collateral ”);
provided that , notwithstanding anything herein to
the contrary, Collateral shall not include, and the security
interest herein shall not attach to, (i) the Equity Interests
issued by the entities identified as Small Business Investment
Corporations on Schedule I , (ii) any outstanding
Equity Interests of a Foreign Subsidiary in excess
2
of 65% of the
voting power of all classes of Equity Interests of such Foreign
Subsidiary entitled to vote or (iii) any property rights in
Equity Interests (other than Equity Interests issued by any
Subsidiary), or any Operating Documents of any issuer of such
Equity Interests to which Pledgor is a party, or any of its rights
or interests thereunder, if the grant of such security interest
shall constitute or result in (A) the abandonment,
invalidation or unenforceability of any right, title or interest of
the Pledgor therein or (B) in a breach or termination pursuant
to the terms of, or a default under, any such property rights or
Operating Documents (other than to the extent that any such term
would be rendered ineffective pursuant to Sections 9-406,
9-407, 9-408 or 9-409 of the UCC (or any successor provisions) of
any relevant jurisdiction or any other Applicable Law (including
the Bankruptcy Code) or principals of equity) (the Equity Interests
described in foregoing clauses (i) through (iii), the “
Excluded Equity Interests ”); provided
further that , (x) immediately upon any
amendment, modification or repeal of the Restrictive Provisions to
allow the pledge of any Excluded Equity Interests of the type
described in clause (i), the Collateral shall include, and the
security interest granted hereunder shall attach to, such Equity
Interests that are no longer subject to such Restrictive Provisions
and (y) until such time as attachment occurs with respect to
any Excluded Equity Interest of the type described in clause
(i) or (iii), references in this Agreement to “Pledged
Entities” shall be deemed not to include the issuers of such
Excluded Equity Interest.
This Agreement is not intended to place
Administrative Agent or any Secured Party in a position of being a
member, shareholder or partner of any Pledged Entity, but is
intended to grant Administrative Agent, on behalf of the Secured
Parties, a lien on and security interest in Pledgor’s Equity
Interests in the Pledged Entities including, without limitation,
any and all of the Collateral but specifically excluding any
general partnership interests.
(b) Each Pledgor hereby delivers to the
Administrative Agent (or to the Collateral Custodian as its agent
and bailee), on behalf of the Secured Parties, including itself,
herewith all certificates, instruments and documents, if any,
representing the Equity Interests in the Pledged Entities to be
held by the Administrative Agent as Collateral, together with a
transfer power in blank duly executed by Pledgor.
SECTION 3. Representations and Warranties
. Each Pledgor hereby represents and warrants, as of the date
hereof and each day on which a Borrowing is made, that:
(a) Pledgor has all requisite power and
authority to enter into this Agreement, to grant a security
interest in the Collateral for the purposes described in
Section 2 and to carry out the transactions contemplated by
this Agreement;
(b) No approval of or consent from any
person or entity (other than the acknowledgement and consent of any
Pledged Entity which is a Subsidiary as evidenced by its signature
hereto) is required in connection with the execution and delivery
by Pledgor of this Agreement, the granting and perfection of the
security interests in the Collateral, or the carrying out of the
transactions contemplated by this Agreement (including the exercise
by the Administrative Agent of the voting or other rights provided
for in this Agreement or the exercise of remedies in respect
thereof);
3
(c) Pledgor is the record and beneficial
owner of the Collateral as of the date hereof;
(d) All of the Collateral is owned by
Pledgor free and clear of any pledge, mortgage, hypothecation,
lien, charge, encumbrance or any security interest in such
Collateral or the proceeds thereof, except for the security
interest granted to the Administrative Agent on behalf of the
Secured Parties hereunder, and there are no outstanding warrants,
options or other rights to purchase, or shareholder, voting trust
or similar agreements outstanding with respect to, or property that
is convertible into, or that requires the issuance of sale of, any
Equity Interests;
(e) The execution, delivery and performance
by Pledgor of this Agreement do not and will not contravene or
constitute a default under or result in any violation of any
agreement (including, without limitation, the operating or
partnership agreement of any Pledged Entity), indenture or other
instrument, license, judgment, decree, order, law, statute,
ordinance or other governmental rule or regulation applicable to
Pledgor;
(f) On each Representation Date (as defined
in the Security Agreement), Schedule I hereto (as such
schedule may be amended or supplemented from time to time pursuant
to the terms of this Agreement) sets forth all of the issued and
outstanding Equity Interests held by Pledgor and such Equity
Interests constitute the percentage of issued and outstanding
shares of stock, percentage of membership interests or percentage
of partnership interests of the respective Pledged Entities
indicated on Schedule I .
(g) Each Pledged Entity is a limited
liability company, limited partnership or corporation duly formed,
validly existing and in good standing as such under the laws of the
jurisdiction of its organization as set forth on
Schedule I hereto, and the execution and delivery of
this Agreement require no action by or in respect of, or filing
with, any governmental body, agency or official (except for the
Uniform Commercial Code filings set forth in paragraph
(h) below) and do not contravene, or constitute a default
under, the operating agreement, partnership agreement, charter or
by-laws of any Pledged Entity;
(h) Upon filing of a Uniform Commercial
Code Financing Statement with the U.C.C. records of the Secretary
of State of the state of organization of each Pledgor, this
Agreement creates and grants a valid lien on and perfected security
interest in the Collateral and the proceeds thereof, subject to no
prior security interest, lien, charge or encumbrance, or to any
agreement purporting to grant to any third party a security
interest in the property or assets of such Pledgor which would
include the Collateral;
(i) A true, correct and complete copy of
the operating agreement, limited partnership agreement, charter and
by-laws, as the case may be, of each Pledged Entity (together with
all amendments thereto) has been provided to the Administrative
Agent;
4
(j) to the extent that any limited
liability company interests or partnership interests pledged as
Collateral are or represent issuers that have opted to be treated
as securities under the applicable U.C.C., the certificates
representing such securities have been delivered to the
Administrative Agent (or to the Collateral Custodian as its agent
and bailee), and no limited liability company interests or
partnership interests pledged as Collateral are dealt in or traded
on securities exchanges or markets; and
(k) None
of the Equity Interests constitutes Margin Stock.
SECTION 4.
Voting Rights; Distributions, Etc.
(a) So long as no Event of Default, as
defined in the Credit Agreement, shall have occurred and be
continuing:
|
|
(i)
|
|
Each Pledgor shall be entitled to
exercise any and all voting and/or other consensual rights and
powers relating or pertaining to the Collateral or any part
thereof, provided, however, that no vote shall be cast or right
exercised or other action taken which would (x) impair the
Collateral or any portion thereof or the rights and remedies of the
Administrative Agent under the Loan Documents, or (y) have or
would reasonably be expected to have a material adverse effect on
the Collateral or any material part thereof or (z) result in any
violation of the provisions of this Agreement, the Credit Agreement
or any other Loan Document,
|
|
|
(ii)
|
|
except to the extent limited by
this Agreement, the Credit Agreement or any other Loan Document,
each Pledgor shall be entitled to receive and retain any and all
cash dividends or cash distributions payable on the Collateral, but
any and all equity interests and/or liquidating dividends,
distributions in property, returns of capital, or other
distributions made on or in respect of the Collateral, whether
resulting from a subdivision, combination, or reclassification of
the outstanding ownership units or other interests of the Pledged
Entities or received in exchange for the Collateral or any part
thereof or as a result of any merger, consoli
|
|