THIS PLEDGE
AGREEMENT, dated as of March 31, 2006, is made and given by
[PLEDGOR] (the “Pledgor”) to WELLS FARGO BANK, N.A.
(the “Secured Party”), acting through its WELLS FARGO
BUSINESS CREDIT operating division.
A. The
Pledgor, other borrowers and the Secured Party have entered into a
Credit and Security Agreement dated as of May 7, 2002 (as the
same has been and may hereafter be amended, restated, supplemented
or otherwise modified from time to time, the “Credit
Agreement”) pursuant to which the Secured Party has agreed to
extend to the Pledgor certain credit accommodations.
B. The
Pledgor is the owner of the shares (the “Pledged
Shares”) of stock described in Part I of Schedule I
hereto issued by the corporations named therein and of the
indebtedness (together with those items listed in
Section 2(e), the “Pledged Debt”) described in
Part II of Schedule I and issued by the obligors named
therein. The Pledged Debt is secured as described in said
Part II of Schedule I.
C. The
Secured Party has required that this Agreement be executed and
delivered by the Pledgor.
D. The
Pledgor finds it advantageous, desirable and in the best interests
of the Pledgor to comply with the requirement that this Agreement
be executed and delivered to the Secured Party.
NOW, THEREFORE, in
consideration of the premises and in order to induce the Secured
Party to enter into the Credit Agreement and to extend credit
accommodations to the Pledgor thereunder, the Pledgor hereby agrees
with the Secured Party for the Secured Party’s benefit as
follows:
(a) As used in
this Agreement, the following terms shall have the meanings
indicated:
“
Collateral ” shall have the meaning given to such term
in Section 2.
“ Event
of Default ” shall have the meaning given to such term in
Section 11.
“
Lien ” shall mean any security interest, mortgage,
pledge, lien, charge, encumbrance, title retention agreement or
analogous instrument or device (including the interest of the
lessors under capitalized leases), in, of or on any assets or
properties of the Person referred to.
“
Obligations ” shall mean (a) all indebtedness,
liabilities and obligations of the Pledgor to the Secured Party of
every kind, nature or description under the Credit Agreement,
including the Pledgor’s obligation on any promissory note or
notes under the Credit Agreement and any note or notes hereafter
issued in substitution or replacement thereof, (b) all
liabilities of the Pledgor under this Agreement, (c) any and
all other liabilities and obligations of the Pledgor to the Secured
Party of every kind, nature and description, whether direct or
indirect or hereafter acquired by the Secured Party from any
Person, absolute or contingent, regardless of how such liabilities
arise or by what agreement or instrument they may be evidenced, and
in all of the foregoing cases whether due or to become due, and
whether now existing or hereafter arising or incurred.
“
Person ” shall mean any individual, corporation,
partnership, joint venture, limited liability company, association,
joint stock company, trust, unincorporated organization or
government or any agency or political subdivision
thereof.
“ Pledged
Debt ” shall have the meaning given to such term in
Recital B above.
“ Pledged
Shares ” shall have the meaning given to such term in
Recital B above.
“ Related
Collateral ” shall have the meaning given to such term in
Section 2.
“
Security Interest ” shall have the meaning given to
such term in Section 2.
(b) Terms
Defined in Uniform Commercial Code . All other terms used in
this Agreement that are not specifically defined herein or the
definitions of which are not incorporated herein by reference shall
have the meaning assigned to such terms in Revised Article 9
of the Uniform Commercial Code as adopted in the State of
Colorado.
(c)
Singular/Plural, Etc . Unless the context of this Agreement
otherwise clearly requires, references to the plural include the
singular, the singular, the plural and “or” has the
inclusive meaning represented by the phrase “and/or.”
The words “ “include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” The words
“hereof,” “herein,”
“hereunder,” and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of
this Agreement. References to Sections are references to Sections
in this Pledge Agreement unless otherwise provided.
2.
Pledge . As security for the payment and performance of all
of the Obligations, the Pledgor hereby pledges to the Secured Party
and grants to the Secured Party a security interest (the
“Security Interest”) in the following, including any
securities account containing a securities entitlement with respect
to the following (the “Collateral”):
(a) The Pledged
Shares and the certificates representing the Pledged Shares, and
all future, issued and outstanding shares of capital stock, or
other equity or investment securities of, or partnership,
membership, or joint venture interests in, each subsidiary, whether
now owned or hereafter acquired by the Pledgor and whether or not
evidenced or
represented by
any stock certificate, certificated security or other instrument,
together with the certificates representing such equity interests,
all options and other rights, contractual or otherwise, in respect
thereof, and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the
foregoing.
(b) All additional
shares of stock of any issuer of the Pledged Shares from time to
time acquired by the Pledgor in any manner, and the certificates
representing such additional shares, and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of such shares.
(c) All investment
property, financial assets, securities, capital stock, other equity
interests, stock options and commodity contracts of the Pledgor,
all notes, debentures, bonds, promissory notes or other evidences
of indebtedness payable or owing to the Pledgor, and all other
assets now or hereafter received or receivable with respect to the
foregoing.
(d) The Pledged
Debt set forth on Schedule I and the instruments evidencing
the Pledged Debt set forth on Schedule I, and all interest,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Debt set forth on
Schedule I.
(e) All additional
debt evidenced by any note, bond, debenture or like instrument from
time to time issued by any Person payable or owing to the Pledgor,
which additional debt is owed to or acquired by the Pledgor, and
the instruments evidencing such debt, and all interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any of all of such debt.
(f) Any and all
collateral security (the “Related Collateral”) now or
hereafter securing all or any items of the Pledged Debt (including
after-acquired security), and agreements granting such security,
and all rights, remedies, powers and privileges of the Pledgor
under all of the foregoing.
(g) All securities
entitlements of the Pledgor in any and all of the
foregoing.
(h) All present
and future increases, profits, combinations, reclassifications, and
substitutes and replacements for all or part of the foregoing
Collateral.
(i) All proceeds
of any and all of the foregoing (including proceeds that constitute
property of types described above).
3.
Delivery of Collateral . All certificates and instruments
representing or evidencing the Pledged Shares and the Pledged Debt
shall be delivered to the Secured Party contemporaneously with the
execution of this Agreement. All certificates and instruments
representing or evidencing Collateral received by the Pledgor after
the execution of this Agreement shall be delivered to
the
Secured Party
promptly upon the Pledgor’s receipt thereof along with an
updated Schedule I. All such certificates and instruments
shall be held by or on behalf of the Secured Party pursuant hereto
and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to the Secured
Party. With respect to all Pledged Shares and Pledged Debt
consisting of uncertificated securities, book-entry securities or
securities entitlements, the Pledgor shall either (a) execute
and deliver, and cause any necessary issuers or securities
intermediaries to execute and deliver, control agreements in form
and substance satisfactory to the Secured Party covering such
Pledged Shares or Pledged Debt, or (b) cause such Pledged
Shares or Pledged Debt to be transferred into the name of the
Secured Party. The Secured Party shall have the right at any time,
whether before or after an Event of Default, to cause any or all of
the Collateral to be transferred of record into the name of the
Secured Party or its nominee (but subject to the rights of the
Pledgor under Section 6) and to exchange certificates
representing or evidencing Collateral for certificates of smaller
or larger denominations. If the Collateral is in the possession of
a bailee, the Pledgor will join with the Secured Party in notifying
the bailee of the interest of the Secured Party and in obtaining
from the bailee an acknowledgment that it hold the Collateral for
the benefit of the Secured Party. The Pledgor shall execute and
deliver to the Secured Party such items of assignment and transfer
(including, without limitation, assignments of financing statements
and recordable assignments of mortgages and deeds of trust) of any
Related Collateral as the Secured Party may from time to time
reasonably request.
4.
Certain Warranties and Covenants . The Pledgor makes the
following warranties and covenants:
(a) The Pledgor
has title to the Pledged Shares and the Pledged Debt and will have
title to each other item of Collateral hereafter acquired, free of
all Liens except the Security Interest and the Lien of Amatis
Limited.
(b) The Pledgor
has full power and authority to execute this Pledge Agreement, to
perform the Pledgor’s obligations hereunder and to subject
the Collateral to the Security Interest created hereby.
(c) No financing
statement covering all or any part of the Collateral is on file in
any public office (except for any financing statements filed by the
Secured Party or Amatis Limited, and any financing statements or
other documents filed or recorded by the Pledgor with respect to
its Lien on any Related Collateral).
(d) The Pledged
Shares have been duly authorized and validly issued by the issuer
thereof and are fully paid and non-assessable. The Pledged Debt has
been duly authorized, issued and delivered and is the legal, valid
and binding obligation of the issuers thereof, and is not in
default. The certificates representing the Pledged Shares and the
instruments evidencing the Pledged Debt are genuine. Neither the
Pledged Shares nor the Pledged Debt are subject to any offset or
similar right or claim of the issuers thereof.
(e) The Pledged
Shares constitute 100% of the issued and outstanding shares of
stock of the respective issuers thereof.
(f) The Pledged
Debt set forth on Schedule I constitutes all of the
outstanding indebtedness for money borrowed or for the deferred
purchase price of property (other than accounts payable on ordinary
trade terms) of the respective obligors thereof owed to the Pledgor
and is outstanding in the principal amount indicated on
Schedule I.
(g) The Pledgor
shall not forgive, cancel, subordinate, compromise, modify, amend
or extend the time for payment of, or waive any default under, any
of the Pledged Debt, or modify or amend, or waive any default under
any agreement with respect to the Related Collateral, or consent to
or acquiesce in any of the foregoing, without in each case the
prior written consent of the Secured Party.
5.
Further Assurances . The Pledgor agrees that at any time and
from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments and documents,
and take all further action that may be necessary or that the
Secured Party may reasonably request, in order to perfect and
protect the Security Interest or to enable the Secured Party to
exercise and enforce its rights and remedies hereunder with respect
to any Collateral (but any failure to request or assure that the
Pledgor execute and deliver such instruments or documents or to
take such action shall not affect or impair the validity,
sufficiency or enforceability of this Agreement and the Security
Interest, regardless of whether any such item was or was not
executed and delivered or action taken in a similar context or on a
prior occasion).
6. Voting
Rights; Dividends; Etc .
(a) Subject to
Section 6(d), the Pledgor shall be entitled to exercise or
refrain from exercising any and all voting and other consensual
rights pertaining to the Pledged Shares or any other stock that
becomes part of the Collateral or any part thereof for any purpose
not inconsistent with the terms of this Agreement or the Credit
Agreement; provided , however , that the Pledgor
shall not exercise or refrain from exercising any such right if
such action could reasonably be expected to have a material adverse
effect on the value of the Collateral or any material part
thereof.
(b) Subject to
Section 6(e), the Pledgor shall be entitled to receive,
retain, and use in any manner not prohibited by the Credit
Agreement or any Subordination Agreement (as defined in the Credit
Agreement) any and all interest and dividends paid in respect of
the Collateral; provided , however , that any and
all
(i) dividends paid
or payable other than in cash in respect of, and instruments and
other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Collateral,
(ii) dividends and
other distributions paid or payable in cash in respect of any
Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital
surplus or paid-in-surplus, and
(iii) cash paid,
payable or otherwise distributed in respect of principal of, or in
redemption of, or in exchange for, any Collateral,
shall be, and
shall be forthwith delivered to the Secured Party to hold as,
Collateral and shall, if received by the Pledgor, be received in
trust for the benefit of the Secured Party, be segregated from the
other property or funds of the Pledgor, and be forthwith delivered
to the Secured Party as Collateral in the same form as so received
(with any necessary indorsement or assignment). The Pledgor shall,
upon request by the Secured Party, promptly execute all such
documents and do all such acts as may be necessary or desirable to
give effect to the provisions of this Section 6(b).
(c) The Secured
Party shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise the voting and other rights that it is entitled
to exercise pursuant to Section 6(a) hereof and to receive the
dividends and interest that it is authorized to receive and retain
pursuant to Section 6(b) hereof.
(d) Upon the
occurrence and during the continuance of any Event of Default, the
Secured Party shall have the right in its sole discretion, and the
Pledgor shall execute and deliver all such proxies and other
instruments as may be necessary or appropriate to give effect to
such right, to terminate all rights of the Pledgor to exercise or
refrain from exercising the voting and other consensual rights that
it would otherwise be entitled to exercise pursuant to Section 6(a)
hereof, and all such rights shall thereupon become vested in the
Secured Party who shall thereupon have the sole right to exercise
or refrain from exercising such voting and other consensual rights;
provided , however , that the Secured Party shall not
be deemed to possess or have control over any voting rights with
respect to any Collateral unless and until the Secured Party has
given written notice to the Pledgor that any further exercise of
such voting rights by the Pledgor is prohibited and that the
Secured Party and/or its assigns will henceforth exercise such
voting rights; and provided , further , that neither
the registration of any item of Collateral in the Secured
Party’s name nor the exercise of any voting rights with
respect thereto shall be deemed to constitute a retention by the
Secured Party of any such Collateral in satisfaction of the
Obligations
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