GS ENERGY PLEDGE AGREEMENTPLEDGE AGREEMENT (this "Agreement"), dated as of October 25, 2006, by and
between THE STILLWATER ASSET-BACKED FUND LP, a Delaware limited partnership
("Lender"), and GS ENERGY CORPORATION, a Delaware corporation ("Pledgor").
WHEREAS, NextGen Acquisition Inc., a Delaware corporation (the "Borrower"),
and Lender have entered into a credit agreement dated as of the date hereof (as
amended, modified or supplemented from time to time in accordance with its
terms, the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, the Lender has agreed to extend
the Term Loan (as defined in the Credit Agreement) to the Borrower, pursuant to,
and subject to the terms and conditions of, the Credit Agreement;
WHEREAS, the Pledgor has guaranteed the obligations of the Borrower under
the Credit Agreement pursuant to a guaranty dated as of the date hereof (the
WHEREAS, by this Pledge Agreement, the Pledgor is providing the Lender with
security for its obligations under the Guaranty.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions of Terms. All capitalized terms used herein, but not defined
herein, shall have the meanings set forth in the Credit Agreement. As used
herein, the following terms shall have the following meanings:
(a) "Collateral" shall have the meaning set forth in Section 2 hereof.
(b) "Issuer" shall mean Warnecke Design Services, Inc., an Ohio
(c) "Pledged Stock" shall mean all of the shares of common stock of the
Issuer owned by the Pledgor.
(d) "Proceeds" shall mean any consideration received from the exchange or
other disposition of any of the Pledged Stock, and any other value
received as a consequence of the possession of any Pledged Stock,
which accrued prior to the occurrence of an Event of Default.
2. Grant and Perfection of Security Interest.
(a) As security for the payment of the Obligations, the Pledgor hereby
pledges, creates and grants to the Lender, its successors and its
assigns, a continuing security interest in, lien upon, and right of
setoff against, and hereby assigns to the Lender, the Pledged Stock
and Proceeds (the "Collateral").
(b) The Pledgor irrevocably and unconditionally authorizes the Lender (or
its agent) to file at any time and from time to time such financing
statements with respect to the Collateral naming the Lender as the
secured party and the Pledgor as debtor, as the Lender may require,
and including any other information with respect to the Pledgor or
otherwise required by Article 9 of the Uniform Commercial Code of such
jurisdiction as the Lender may determine in good faith, together with
any amendment and continuations with respect thereto, which
authorization shall apply to all financing statements filed on, prior
to or after the date hereof. The Lender hereby ratifies and approves
all financing statements naming the Lender as secured party and the
Pledgor, as debtor with respect to the Collateral (and any amendments
with respect to such financing statements) filed by or on behalf of
the Lender prior to the date hereof and ratifies and confirms the
authorization of the Lender to file such financing statements (and
amendments, if any). The Pledgor hereby authorizes the Lender to adopt
on behalf of the Pledgor any symbol required for authenticating any
(c) The certificates for such Pledged Stock, to the extent that such
interests are represented by certificates, accompanied by stock powers
or other appropriate instruments of assignment thereof duly endorsed
in blank by the Pledgor, have been delivered to the Lender. If the
Pledgor at any time receives additional or replacement certificates
with respect to the Collateral, it shall immediately deliver such
certificates to the Lender.
3. Representations; Further Assurances.
(a) Pledgor is the legal and beneficial owner of the Pledged Stock, free
and clear of all liens, except such as are created pursuant to this
Agreement. Pledgor has the legal right to pledge and grant a security
interest in the same as herein provided without the consent of any
other Person other than any such consent that has been obtained.
(b) All of the Pledged Stock have been duly authorized and validly issued
and is fully paid and non-assessable, and are subject to no options to
purchase or similar rights of any Person. Pledgor is not and will not
become a party to or otherwise be bound by any agreement, other than
this Agreement which restricts in any manner the rights of any present
or future holder of any of the Pledged Stock with respect thereto.
(c) The Pledgor will not permit to be effected any amendment or
modification of the charter, by-laws or other applicable organization
documents of the Issuer which would (or would be reasonably likely to)
materially adversely affect the rights or remedies of the Lender
hereunder or the value of the Collateral.
(d) The Pledgor agrees to take any other actions reasonably requested by
the Lender to insure the attachment, perfection of, and the ability of
the Lender to enforce, the security interest of the Lender in any and
all of the Collateral, including, without limitation, (i) executing,
delivering and, where appropriate, filing financing statements and
amendments relating thereto under the NYUCC or other applicable law,
to the extent, if any, that the Pledgor's signature thereon is
required therefor, and (ii) complying with any provision of any
statute, regulation or treaty of the United States as to any
Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of the Lender to
enforce, the security interest of the Lender in such Collateral.
4. Taxes; Encumbrances. At its option, the Lender may discharge past due
taxes, liens, security interests or other encumbrances at any time levied
or placed on the Collateral, and may pay for the maintenance and
preservation of the Collateral to the extent the Pledgor fails to do so,
and; provided, however, that nothing in this Section 4 shall be interpreted
as excusing the Pledgor from his performance of any covenants or other
promises with respect to taxes, liens, security interests or other
encumbrances and maintenances as set forth herein or in the Credit
5. Priority. The Lender's security interest in the Collateral is and shall
remain a first priority security interest.
6. Continuing Obligations of the Pledgor. The Pledgor shall remain liable to
observe and perform all the conditions and obligations to be observed and
performed by it under each contract, agreement, interest or obligation
relating to the Collateral, all in accordance with the terms and conditions
7. Right to Receive Distributions and Vote; Remedies Upon Default.
(a) Pledgor shall be entitled to receive the distributions and profits
allocable to the Pledged Stock and exercise the voting, consent,
administration, management and other powers, rights and remedies
relating to the Pledged Stock. Upon the occurrence of an Event of
Default, all such powers and rights permitted Pledgor pursuant to the
preceding sentence shall cease.
(b) Upon the occurrence and during the continuance of an Event of Default,
the Lender shall have the right, with or without legal process and
with or without previous notice or demand for performance, to take
possession of the Collateral and, generally, to exercise any and all
rights afforded to a secured party under, and subject to its
obligations contained in, the Uniform Commercial Code as in effect in
any state or other applicable law.
8. Application of Proceeds. The proceeds of any Collateral shall be applied by
the Lender as follows:
FIRST, to the payment of the out-of-pocket costs and expenses of the Lender
and the reasonable fees and expenses of its counsel, and all expenses incurred
and advances made by the Lender in connection with the administration of this
Agreement, the Credit Agreement or any other Financing Agreements;
SECOND, to the payment of the Obligations; and
THIRD, to the Pledgor, his successors and assigns, or as a court of
competent jurisdiction may otherwise direct.
9. Security Interest Absolute. All rights of the Lender hereunder, including
without limitation, the security interest granted hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of the Credit
Agreement, any other agreement with respect to the Term Loan or any other
agreement or instrument relating to any of the foregoing, (ii) any change
in the time, manner or place of payment of, or in any other term of, the
Term Loan, or any other amendment or waiver of or consent to any departure
from the Credit Agreement, or any other agreement or instrument, (iii) any
exchange, release or nonperfection of any other Collateral, or any release
or amendment or waiver of or consent to or departure from any guarantee,
for the Term Loan, or (iv) any other circumstance which might otherwise
constitute a defense available to, or discharge of, the Pledgor, any of the
Guarantors or any other obligor in respect of the Term Loan or in respect
of this Agreement.
10. No Waiver. No failure on the part of the Lender to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Lender preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies
provided by law. The Lender shall not be deemed to have waived any rights
hereunder or under any other agreement or instrument unless such waiver
shall be in writing and signed by such parties.
11. Lender Appointed Attorney-in-Fact. The Pledgor hereby appoints the Lender
the attorney-in-fact of the Pledgor solely for the purpose of carrying out
the provisions of this Agreement and taking any action and executing any
instrument which the Lender may deem necessary or advisable to accomplish
the purposes hereof, which appointment is irrevocable and coupled with an
12. Submission to Jurisdiction.
(a) Any legal action or proceeding with respect to this Agreement may be
brought in the courts of the State of New York (located in New York
County) or of the United States of America for the Southern District
of New York, and, by execution and delivery of this Agreement, the
Pledgor hereby accepts for itself and in respect of his property,
generally and unconditionally, the jurisdiction of the aforesaid
(b) The Pledgor hereby irrevocably waives, in connection with any such
action or proceeding, any objection, including, without limitation,
any objection to the laying of venue or based on the grounds of forum
non conveniens, which she may now or hereafter have to the bringing of
any such action or proceeding in such respective jurisdictions.
(c) The Pledgor hereby irrevocably consents to the service of process of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to her, as the case may be, at her address set forth in the
(d) Nothing herein shall affect the right of the Lender to serve process
in any other manner permitted by law or to commence legal proceedings
or otherwise proceed against the Pledgor in any other jurisdiction.
13. Entire Agreement; Waiver of Jury Trial, etc.
(a) This Agreement and the Guaranty constitute the entire contract between
the parties hereto relative to the subject matter hereof. Nothing in
this Agreement or in the Guaranty, expressed or implied, is intended
to confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement or the Guaranty.
(b) THE PLEDGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT AND THE OTHER FINANCING
(c) Except as prohibited by law, each party hereto hereby waives any right
it may have to claim or recover in any litigation referred to in
paragraph (b) of this Section 13 any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to,
(d) Each party hereto (i) certifies that no representative, Lender or
attorney of the Lender has represented, expressly or otherwise, that
the Lender would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that it has been induced to
enter into this Agreement or the other Financing Agreements, as
applicable, by, among other things, the mutual waivers and
14. Binding Agreement; Assignments. This Agreement, and the terms, covenants
and conditions hereof, shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
the Pledgor shall not be permitted to assign this Agreement or any interest
herein or in the Collateral, or any part thereof, or any cash or property
held by the Lender as Collateral under this Agreement.
15. Applicable Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York (other than the conflicts of
laws principles thereof) except to the extent that the validity or
perfection of the security interest hereunder, or remedies hereunder, in
respect of any particular collateral are governed by the laws of a
jurisdiction other than the State of New York.
16. Notices. All communications and notices hereunder shall be in writing and
given as provided in the Credit Agreement.
17. Severability. In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
18. Section Headings. Section headings used herein are for convenience only and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
19. Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered to the Lender.
Delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually executed
signature page hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
Agreement as of the day and year first above written.
THE STILLWATER ASSET-BACKED FUND LP
GS ENERGY CORPORATION
By:/s/ Kevin Kriesler
Name: Kevin Kreisler
Title: Chairman and Chief Executive Officer