EXHIBIT 4.3
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of November [ ], 2004, made by COINMACH
SERVICE CORP. (the "Company"), a Delaware corporation, and COINMACH LAUNDRY
CORPORATION ("Laundry Corp." and, together with the Company, the "Pledgors"), a
Delaware corporation, in favor of THE BANK OF NEW YORK ("BNY"), a New York
banking corporation, as Collateral Agent (in such capacity and together with any
successors in such capacity, the "Collateral Agent"), for the benefit of the
Secured Creditors (as defined below). Except as otherwise defined herein, all
capitalized terms used herein and defined in the security agreement, dated as of
the date hereof (as amended, modified or supplemented from time to time, the
"Security Agreement"), between the Pledgors and the Collateral Agent shall be
used herein as so defined.
R E C I T A L S :
1. The Company intends to issue on the date hereof $[ ] million
aggregate principal amount of its [ ]% Senior Secured Notes due 2024 (the
"Senior Secured Notes") pursuant to an indenture, dated as of the date hereof
(as amended, modified or supplemented from time to time, the "Indenture")
between the Company, the subsidiary guarantors party thereto from time to time
and BNY as trustee (the "Trustee") and as Collateral Agent, and may issue
additional Senior Secured Notes from time to time in accordance with the
Indenture.
2. The obligations of the Company under the Indenture and the Senior
Secured Notes will be guaranteed by Laundry Corp. in accordance with the
Indenture.
3. Laundry Corp. will receive substantial benefits from the proceeds
of the Senior Secured Notes and has agreed to grant to the Collateral Agent
Liens on and security interests in the Collateral owned by it to secure its
Obligations (as defined below).
4. Laundry Corp. has previously granted a Lien and pledged all of
its right, title and interest in and relating to the Capital Stock of Coinmach
Corporation ("Coinmach Corp."), a Delaware corporation, and Proceeds thereof
(collectively, the "Shared Collateral") in favor of Deutsche Bank Trust Company
Americas ("DB Trust"), as collateral agent (the "Credit Agreement Collateral
Agent") under the Credit Agreement (as amended, modified or supplemented from
time to time, the "Credit Agreement") dated as of January 25, 2002, among
Laundry Corp., Coinmach Corp., the lenders party thereto from time to time in
their capacities as lenders thereunder, DB Trust, as administrative agent and
the Credit Agreement Collateral Agent.
5. It is a condition precedent to the purchase of the Senior
Secured Notes that the Pledgors shall have executed and delivered this
Agreement to the Collateral Agent for the benefit of the Collateral Agent, the
Trustee and the Holders from time to time of the Senior Secured Notes
(collectively, the "Secured Creditors").
6. It is a condition precedent to the effectiveness of certain
amendments to the Credit Agreement and to the Holdings Pledge Agreement (as
defined therein) necessary to permit the grant by Laundry Corp. hereunder of the
Liens in favor of the Collateral Agent on the Shared Collateral that Laundry
Corp. shall have executed and delivered a certain intercreditor agreement (the
"Intercreditor Agreement") dated as of the date hereof (as the same may be
amended, supplemented or otherwise modified from time to time) among Laundry
Corp., the Collateral Agent and the Credit Agreement Collateral Agent.
7. The Pledgors desire to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph and to secure the
payment and performance of all the Obligations.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the above-described extensions
of credit to be made to the Pledgors and other benefits accruing to the
Pledgors, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:
Section 1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure the full and prompt
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise in accordance with the terms of the Indenture) of the
Obligations, whether outstanding on the date of this Agreement or extended from
time to time after the date of this Agreement.
Section 2. DEFINITION OF STOCK, INTERESTS, NOTES, SECURITIES, ETC.;
REPRESENTATIONS AND WARRANTIES. As used herein,
(i) the term "Stock" shall mean (x) with respect to corporations
incorporated under the laws of the United States or any State or territory
thereof (each, a "Domestic Corporation"), all of the issued and
outstanding shares of capital stock of whatever class at any time owned by
each Pledgor of each Domestic Corporation and (y) with respect to
corporations that do not constitute Domestic Corporations (each, a
"Foreign Corporation"), all of the issued and outstanding shares of
capital stock of whatever class at any time owned by each Pledgor of each
Foreign Corporation, in each case described in clauses (i)(x) and (i)(y)
of this sentence, together with the certificates representing such shares
and any interest of such Pledgor in the entries on the books of any
financial intermediary pertaining to such shares; provided that, except as
provided in the last sentence of this Section 2, such Pledgor shall not be
required to pledge hereunder more than 65% of the total combined voting
power of all classes of capital stock of any Foreign Corporation entitled
to vote,
(ii) the term "Interests" shall mean (x) with respect to limited
liability companies, partnerships or other entities (other than
corporations) organized under the laws of the United States or any State
or territory thereof (each, a "Domestic Non-Corporate Entity"), all of the
issued and outstanding membership interests, partnership interests or
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other interests of whatever class at any time owned by each Pledgor of
each Domestic Non-Corporate Entity and (y) with respect to limited
liability companies, partnerships or other entities (other than
corporations) that do not constitute Domestic Non-Corporate Entities
(each, a "Foreign Non-Corporate Entity"), all of the issued and
outstanding membership interests, partnership interests or other interests
of whatever class at any time owned by each Pledgor of each Foreign
Non-Corporate Entity, in each case described in clauses (ii)(x) and
(ii)(y) of this sentence, together with all rights, privileges, authority
and powers of such Pledgor in and to each such Domestic Non-Corporate
Entity or Foreign Non-Corporate Entity or under the membership,
partnership or other operative agreement of each such entity, and the
certificates, instruments and agreements, if any, representing such
membership, partnership or other equity interests; provided that, except
as provided in the last sentence of this Section 2, such Pledgor shall not
be required to pledge hereunder more than 65% of the total combined voting
power of all classes of interests of any Foreign Non-Corporate Entity
entitled to vote, and
(iii) the term "Notes" shall mean (x) all promissory notes at any
time issued to each Pledgor by any of its Subsidiaries (including the
Intercompany Note), together with all certificates or instruments
evidencing such promissory notes and all proceeds thereof, and all
accessions thereto and substitutions therefor and (y) except as provided
in the last sentence of this Section 2, such Pledgor shall not be
required to pledge hereunder any promissory notes issued to such Pledgor
by any Subsidiary of such Pledgor which is a Foreign Corporation or
Foreign Non-Corporate Entity.
If and to the extent that the Collateral Agent receives or holds
stock certificates representing more than 65% of the total combined voting power
of all classes of capital stock or other interests of any Foreign Corporation or
Foreign Non-Corporate Entity entitled to vote, the Collateral Agent agrees to
act as bailee and custodian for the benefit of the applicable Pledgor with
respect to any portion of such capital stock or other interest representing more
than 65% of the total combined voting power of all classes of capital stock or
other interest of any Foreign Corporation or Foreign Non-Corporate Entity
entitled to vote except as otherwise provided in the last sentence of this
Section 2. As used herein, the term "Securities" shall mean all of the Stock,
Interests and Notes.
Each Pledgor represents and warrants, as to the stock of
corporations, interests in non-corporate entities and promissory notes owned by
such Pledgor, that on the date hereof (a) the Stock consists of the number and
type of shares of the stock of the corporations as described in Part I of
Schedule A hereto; (b) such Stock constitutes that percentage of the issued and
outstanding capital stock of the issuing corporation as is set forth in Part I
of Schedule A hereto; (c) the Notes consist of the promissory notes described in
Part II of Schedule A hereto; (d) the Interests consist of the type of interests
of the non-corporate entities as described in Part III of Schedule A hereto; (e)
such Interests constitute that percentage of the issues interests of the issuing
non-corporate entities as described in Part III of Schedule A hereto; and (f)
such Pledgor is the holder of record and sole beneficial owner of the Stock, the
Interest and the Notes and there exist no options or preemptive rights in
respect of any of the Securities. If following a change in the relevant sections
of the Code or the regulations, rules, rulings, notices or other official
pronouncements issued or promulgated thereunder which would permit a pledge (x)
of 66-2/3% or more (or would be adjusted to permit a pledge of less than
66-2/3%) of the total com-
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bined voting power of all classes of capital stock of any Foreign Corporation or
Foreign Non-Corporate Entity entitled to vote and (y) of any promissory note
issued by any Subsidiary of each Pledgor which is a Foreign Corporation or
Foreign Non-Corporate Entity without causing the undistributed earnings of such
Foreign Corporation or Foreign Non-Corporate Entity as determined for Federal
income taxes to be treated as a deemed dividend to such Pledgor for Federal
income tax purposes and without causing any other material adverse tax
consequences to the applicable Pledgor or any of its Subsidiaries or Affiliates,
then the 65% limitation set forth in the provisions to clauses (i) and (ii) and
the limitation set forth in clause (iii)(y) of this Section 2 shall no longer be
applicable (or shall be adjusted as appropriate) and such Pledgor shall duly
pledge and deliver to the Collateral Agent such of the Securities not
theretofore required to be pledged hereunder or the Collateral Agent shall
return such Securities, as applicable.
Section 3. PLEDGE OF SECURITIES, ETC.
Section 3.1. Pledge. To secure the payment and performance when due
of all of the Obligations and for the purposes set forth in Section 1, each
Pledgor (i) hereby grants to the Collateral Agent for the benefit of the Secured
Creditors a continuing security interest in and to all of the right, title and
interests of such Pledgor in, to and under the Collateral (as hereinafter
defined), (ii) hereby pledges and deposits with the Collateral Agent the
Securities owned by such Pledgor on the date hereof, and, subject to Section 24,
delivers to the Collateral Agent certificates therefor, duly endorsed in blank
in the case of promissory notes and accompanied by undated stock powers duly
executed in blank by such Pledgor (and accompanied by any transfer tax stamps
required in connection with the pledge of such Securities) in the case of
capital stock, or such other instruments of transfer as are reasonably
acceptable to the Collateral Agent and (iii) hereby collaterally assigns,
transfers, hypothecates and sets over to the Collateral Agent all of such
Pledgor's right, title and interest in and to such Securities (and in and to the
certificates or instruments evidencing such Securities and the other
Collateral), to be held by the Collateral Agent as collateral security for the
Obligations, upon the terms and conditions set forth in this Agreement.
Section 3.2. Subsequently Acquired Securities. If any Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional Securities at
any time or from time to time after the date hereof, such Pledgor will promptly
thereafter (and in any event within five Business Days) pledge and deposit such
Securities (or certificates or instruments representing Securities) as security
with the Collateral Agent and deliver to the Collateral Agent certificates or
instruments therefor, duly endorsed in blank in the case of promissory notes,
and accompanied by undated stock powers duly executed in blank by such Pledgor
(and accompanied by any transfer tax stamps required in connection with the
pledge of such Securities) in the case of capital stock, or such other
instruments of transfer as are reasonably acceptable to the Collateral Agent,
and will promptly thereafter (and in any event within five Business Days)
deliver to the Collateral Agent a pledge amendment duly executed by a principal
executive officer of such Pledgor in substantially the form of Exhibit 1 hereto
(each, a "Pledge Amendment") describing such Securities and certifying that the
same have been duly pledged with the Collateral Agent hereunder. Subject to the
last sentence of Section 2, no Pledgor shall be required at any time to pledge
hereunder any promissory notes issued to such Pledgor by a Subsidiary which is a
Foreign Corporation or Foreign Non-Corporate Entity or more than 65% of the
total combined voting power of
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all classes of capital stock or other interests of any Foreign Corporation or
Foreign Non-Corporate Entity entitled to vote.
Section 3.3. Uncertificated Securities. Notwithstanding anything to
the contrary contained in Sections 3.1 and 3.2, if any Securities (whether now
owned or hereafter acquired) are uncertificated securities, each Pledgor shall
promptly (and in any event within ten Business Days) notify the Collateral Agent
thereof, and shall promptly (and in any event within ten Business Days) take all
actions reasonably required to perfect the security interest of the Collateral
Agent under applicable law. Each Pledgor further agrees to take such actions as
the Collateral Agent deems reasonably necessary or desirable to effect the
foregoing (including, without limitation, causing the issuer of such
uncertificated Securities to execute and deliver to the Collateral Agent an
acknowledgment of the pledge of such Securities hereunder substantially in the
form of Exhibit 2 hereto) and to permit the Collateral Agent to exercise any of
its rights and remedies hereunder, and agrees to provide an opinion of counsel
reasonably satisfactory to the Collateral Agent with respect to any such pledge
of uncertificated Securities promptly upon the reasonable request of the
Collateral Agent.
Section 3.4. Definitions of Pledged Stock; Pledged Notes; Pledged
Securities and Collateral. As used herein, "Collateral" shall mean all of the
following property of each Pledgor, whether now existing or owned or hereafter
arising or acquired:
(i) all Stock at any time pledged or required to be pledged
hereunder (hereinafter called the "Pledged Stock");
(ii) all Interests at any time pledged or required to be pledged
hereunder (hereinafter called the "Pledged Interests");
(iii) all Notes at any time pledged or required to be pledged
hereunder (hereinafter called the "Pledged Notes"; together with all
Pledged Stock and Pledged Interests are hereinafter called the "Pledged
Securities");
(iv) all dividends, cash, options, warrants, rights, instruments,
distributions, returns of capital or principal, income, interest, profits
and other property, interests (debt or equity) or proceeds, including as a
result of a split, revision, reclassification or other like change of the
Pledged Securities, from time to time received, receivable or otherwise
distributed to such Pledgor in respect of or in exchange for any or all of
the Pledged Securities (collectively, "Distributions");
(v) without affecting the obligations of such Pledgor under any
provision prohibiting such action hereunder or under the Indenture, in the
event of any consolidation or merger in which any Person listed in
Schedule A hereto is not the surviving entity, all shares of each class of
the capital stock of the successor corporation or interests or
certificates of the successor limited liability company or partnership or
other entity owned by such Pledgor (unless such successor is such Pledgor
itself) formed by or resulting from such consolidation or merger; and
(vi) all Proceeds (as defined under the Uniform Commercial Code as
in effect in any relevant jurisdiction (the "UCC") or under other relevant
law) of any of the fore-
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going, and in any event, including, without limitation, any and all (a)
proceeds of any insurance, indemnity, warranty or guarantee payable to the
Collateral Agent or to any Pledgor from time to time with respect to any
of the Collateral, (b) payments (in any form whatsoever) made or due and
payable to any Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Collateral by any Governmental Authority (or any person
acting under color of a Governmental Authority), (c) instruments
representing obligations to pay amounts in respect of any Collateral, (d)
products of the Collateral and (e) any and all other amounts from time to
time paid or payable under or in connection with any of the Collateral,
including any securities and moneys received and at any time held by the
Collateral Agent hereunder.
Section 4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The
Collateral Agent shall have the right to appoint one or more sub-agents, at the
cost and expense of the Pledgors, for the purpose of retaining physical
possession of the Pledged Securities, which may be held (in the reasonable
discretion of the Collateral Agent) in the name of the applicable Pledgor,
endorsed or assigned in blank or in favor of the Collateral Agent or any nominee
or nominees of the Collateral Agent or a sub-agent appointed by the Collateral
Agent.
Section 5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default and the
Collateral Agent has given written notice thereof to the Company in accordance
with Article Six of the Indenture to the extent such notice is required pursuant
to Article Six of the Indenture, each Pledgor shall, to the extent not
prohibited in the Indenture, be entitled to vote any and all Pledged Securities
owned by it, and to give consents, waivers or ratifications in respect thereof,
provided that no vote shall be cast or any consent, waiver or ratification given
or any action taken which would violate or result in breach of any covenant
contained in this Agreement or the Indenture or which is not permitted under
this Agreement or the Indenture and could reasonably be expected to have the
effect of materially impairing the value of the Collateral or any material part
thereof or the position or interests of the Collateral Agent or any Secured
Creditor. All such rights of each Pledgor to vote and to give consents, waivers
and ratifications shall cease in case an Event of Default has occurred and is
continuing and the Collateral Agent has given written notice to the Company in
accordance with Article Six of the Indenture to the extent such notice is
required pursuant to Article Six of the Indenture, and Section 7 hereof shall
become applicable.
Section 6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default and the Collateral
Agent has given written notice thereof to the Company in accordance with Article
Six of the Indenture to the extent such notice is required pursuant to Article
Six of the Indenture, all cash dividends and distributions payable in respect of
the Pledged Stock and Pledges Interests and all payments in respect of the
Pledged Notes shall be paid to the applicable Pledgor. If there shall have
occurred and be continuing an Event of Default, the Collateral Agent shall be
entitled to receive directly, and to retain as part of the Collateral:
(a) all other or additional stock or securities or other interests
(other than cash) paid or distributed by way of dividend or otherwise, as
the case may be, in respect of the Pledged Securities;
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(b) all other or additional stock or other securities or other
interests paid (other than cash) or distributed in respect of the Pledged
Securities by way of stock split, spin-off, split-up, reclassification,
combination of shares or similar rearrangement; and
(c) all other or additional stock or other securities or other
interests or property (excluding cash) which may be paid in respect of the
Collateral by reason of any consolidation, merger, exchange of stock,
conveyance of assets, liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Collateral Agent's right to receive proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments which are received by each Pledgor contrary to the provisions of
this Section 6 and Section 7 shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith paid or delivered over to the Collateral Agent as
Collateral in the same form as so received (with any necessary endorsement).
Section 7. REMEDIES IN CASE OF EVENTS OF DEFAULT. If there shall
have occurred and be continuing an Event of Default and the Collateral Agent has
given written notice thereof to the Company in accordance with Article Six of
the Indenture to the extent such notice is required pursuant to Article Six of
the Indenture, then and in every such case, the Collateral Agent shall be
entitled to exercise all of the rights, powers and remedies (whether vested in
it by this Agreement, the Senior Secured Notes or the Indenture, or by law) for
the protection and enforcement of its rights in respect of the Collateral, and
the Collateral Agent shall be entitled to exercise all the rights and remedies
of a secured party under the UCC and also shall be entitled, without
limitation, to exercise the following rights, which the Collateral Agent agrees
to exercise in a commercially reasonable manner:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 to the Pledgors;
(b) to transfer all or any part of the Collateral into the
Collateral Agent's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note at such times and under the conditions set forth
therein;
(d) to vote all or any part of the Pledged Stock and/or Pledged
Interests (whether or not transferred into the name of the Collateral
Agent) and give all consents, waivers and ratifications in respect of the
Collateral and otherwise act with respect thereto in a commercially
reasonable manner as though it were the outright owner thereof (each
Pledgor hereby irrevocably constituting and appointing the Collateral
Agent the proxy and attorney-in-fact of such Pledgor, with full power of
substitution to do so upon the occurrence and during the continuance of an
Event of Default provided the Collateral Agent has delivered written
notice thereof to the Company in accordance with Article Six of the
Indenture to the extent such notice is required pursuant to Article Six of
the Indenture); and
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(e) to sell, assign and deliver, or grant options to purchase, all
or any part of the Collateral, or any interest therein, at any public or
private sale, without demand of performance, advertisement or notice of
intention to sell or of the time or place of sale or adjournment thereof
or to redeem or otherwise (all of which are hereby waived by each
Pledgor), for cash, on credit or for other property, for immediate or
future delivery without any assumption of credit risk, and for such price
or prices and on such terms as the Collateral Agent may determine in a
commercially reasonable manner, provided that at least 10 days' written
notice of the time and place of any such sale shall be given to the
applicable Pledgor. The Collateral Agent shall not be obligated to make
any such sale of Collateral regardless of whether any such notice of sale
has theretofore been given. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, other
than such Pledgor's right to receive any excess proceeds or Collateral
remaining after the occurrence of the Termination Date. At any such sale,
unless prohibited by applicable law, the Collateral Agent on behalf of the
Secured Creditors may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Collateral Agent nor any Secured Creditor shall be liable for
failure to collect (except in such cases where the Collateral Agent bids
for and purchases all or part of the Collateral) or realize upon any or
all of the Collateral or for any delay in so doing nor shall any of them
be under any obligation to take any action whatsoever with regard thereto.
Section 8. REMEDIES, ETC., CUMULATIVE. Each and every right, power
and remedy of the Collateral Agent provided for in this Agreement, the Senior
Secured Notes or the Indenture now or hereafter existing at law or in equity or
by statute, shall be cumulative and concurrent and shall be in addition to
every other such right, power or remedy. The exercise or beginning of the
exercise by the Collateral Agent or any Secured Creditor of any one or more of
the rights, powers or remedies provided for in this Agreement, the Senior
Secured Notes or the Indenture or now or hereafter existing at law or in equity
or by statute shall not preclude the simultaneous or later exercise by the
Collateral Agent or any Secured Creditor of all such other rights, powers or
remedies, and no failure or delay on the part of the Collateral Agent or any
Secured Creditor to exercise any such right, power or remedy shall operate as a
waiver thereof except as required by applicable law. Unless otherwise required
by the Indenture, no notice to or demand on any Pledgor in any case shall
entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Collateral
Agent or any Secured Creditor to any other or further action in any
circumstances without notice or demand.
Section 9. APPLICATION OF PROCEEDS. All moneys collected by the
Collateral Agent upon any sale or other disposition of the Collateral, together
with all other moneys received by the Collateral Agent hereunder, shall be
applied to the payment of the Obligations in the manner set forth in Section 7.4
of the Security Agreement.
Section 10. PURCHASERS OF COLLATERAL. Upon any sale of the
Collateral by the Collateral Agent hereunder (whether by virtue of the power of
sale herein granted, pursuant to judicial process or otherwise), the receipt of
the Collateral Agent or the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the
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purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication or nonapplication thereof.
Section 11. INDEMNITY. Each Pledgor agrees to indemnify and hold
harmless the Collateral Agent and each Secured Creditor and their respective
successors, assigns, employees, agents and servants (each an "Indemnitee";
collectively, the "Indemnitees") from and against any and all claims, demands,
losses, judgments and liabilities (including liabilities for penalties) of
whatsoever kind or nature, and to reimburse each Indemnitee for all costs and
expenses, including reasonable attorneys' fees, growing out of or resulting from
this Agreement or the exercise by any Indemnitee of any right or remedy granted
to it hereunder or under the Indenture (but excluding any claims, demands,
losses, judgments and liabilities or expenses to the extent finally judicially
determined to have been incurred by reason of gross negligence or willful
misconduct of such Indemnitee). If and to the extent that the obligations of any
Pledgor under this Section 11 are unenforceable for any reason, such Pledgor
hereby agrees to make the maximum contribution to the payment and satisfaction
of such obligations that is permissible under applicable law.
Section 12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Collateral Agent in executing and, at its own
expense, file and refile under the UCC or other applicable law such financing
statements, continuation statements and other documents in such offices as the
Collateral Agent may deem reasonably necessary and wherever required by law in
order to perfect and preserve the Collateral Agent's security interest in the
Collateral and hereby authorizes the Collateral Agent to file financing
statements and amendments thereto relative to all or any part of the Collateral
without the signature of such Pledgor, and agrees to do such further acts and
things and to execute and deliver to the Collateral Agent such additional
conveyances, assignments, agreements and instruments as the Collateral Agent may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Collateral Agent its rights,
powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Collateral Agent such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default and provided that the
Collateral Agent shall have delivered notice thereof to the Company in
accordance with Article Six of the Indenture to the extent such notice is
required pursuant to Article Six of the Indenture, in the Collateral Agent's
reasonable discretion to take any action and to execute any instrument which the
Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes of this Agreement.
Section 13. THE PLEDGEE AS AGENT. The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed by the parties
hereto and each Secured Creditor, by accepting the benefits of this Agreement,
each such person acknowledges and agrees that the obligations of the Collateral
Agent as holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement. The Collateral Agent shall act hereunder
on the terms and conditions set forth herein and in Article Seven of the
Indenture.
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Section 14. TRANSFER BY THE PLEDGOR. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Indenture).
Section 15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGOR. (a) Each Pledgor represents and warrants that as of the date hereof (i)
it is, or at the time when pledged hereunder will be, the legal, record and
beneficial owner of, and has (or will have) good title to, all Collateral
pledged by it hereunder, subject to no Lien (except the Lien created by this
Agreement and except Permitted Liens); (ii) it has full corporate power,
authority and legal right to pledge all the Collateral pursuant to this
Agreement; (iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of such
Pledgor enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law); (iv) except to the extent
already obtained or made, no consent of any other party (including, without
limitation, any stockholder or creditor of such Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required to be obtained by such Pledgor in
connection with (w) the execution, delivery or performance of this Agreement,
(x) the validity or enforceability of this Agreement, (y) the perfection or
enforceability of the Collateral Agent's security interest in the Collateral or
(z) except for compliance with or as may be required by applicable securities
laws, the exercise by the Collateral Agent of any of its rights or remedies
provided herein; (v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation or of any
order, judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, applicable to such Pledgor, or of the
Certificate of Incorporation or By-Laws of such Pledgor or of any securities
issued by such Pledgor or any of its Subsidiaries, or of any material mortgage,
indenture, lease, loan agreement, credit agreement or other contract, agreement
or instrument or undertaking to which such Pledgor or any of its Subsidiaries is
a party or which purports to be binding upon such Pledgor or any of its
Subsidiaries or upon any of their respective material assets and will not result
in the creation or imposition of (or the obligation to create or impose) any
lien or encumbrance on any of the assets of such Pledgor or any of its
Subsidiaries except as contemplated by this Agreement; (vi) all the shares of
the Pledged Stock and Pledged Interests have been duly and validly issued, are
fully paid and non-assessable (in the case of Pledged Stock) and are subject to
no options to purchase or similar rights; (vii) each of the Pledged Notes to the
extent executed by the Company or any of its Subsidiaries constitutes, or when
executed by the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms, except to
the extent that the enforceability thereof may by limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law); and (viii) the pledge,
collateral assignment and, in the case of certificated securities (other than
the Pledged Stock of Coinmach Corp. for so long as the Intercreditor Agreement
remains in full force and effect), delivery to the Collateral Agent of the
Securities or, in the case of uncertificated securities and securities of
Coinmach Corp., the filing of a financing statement naming such Pledgor, as
debtor, and the Collateral Agent, as Secured Party, in each
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case pursuant to this Agreement creates a valid and perfected Lien on the
Collateral, subject to no other Lien or to any agreement purporting to grant to
any third party a Lien on the property or assets of the Pledgor which would
include the Collateral, except Permitted Liens. Each Pledgor covenants and
agrees that it will take commercially reasonable steps to defend the Collateral
Agent's right, title and security interest in and to the Collateral against the
claims and demands of all persons whomsoever; and each Pledgor covenants and
agrees that it will have like title to and right to pledge any other property at
any time hereafter pledged to the Collateral Agent as Collateral hereunder and
will likewise take commercially reasonable steps to defend the right thereto and
security interest therein of the Collateral Agent and the Secured Creditors.
(b) Each Pledgor further represents, warrants and covenants that the
exact legal name, type of organization and jurisdiction of organization
(together with the organizational identification number, if any, issued by such
jurisdiction to such Pledgor) of such Pledgor is set forth in Schedule B hereto.
Such Pledgor shall not "reincorporate" or "reorganize" or otherwise cause the
Collateral to be transferred to a Person incorporated or organized in another
state except to the extent (x) permitted pursuant to the provisions of the
Indenture, (y) it shall have given to Collateral Agent not less than 10 days'
prior written notice (in the form of an officers' certificate) of its intention
so to do clearly describing such transaction and providing such other
information in connection therewith as Collateral Agent may reasonably request
and (z) with respect to such transaction, such Pledgor shall have taken all
action reasonably satisfactory to Collateral Agent to maintain the perfection
and priority of the security interest of Collateral Agent for the benefit of the
Secured Parties in the Collateral intended to be granted hereby.
(c) Intercompany Note. No pledgor shall:
(i) sell, convey, transfer or assign (or otherwise engage in any
other transfer for value of the Intercompany Note or any of its interest
therein:
(ii) amend, supplement or waive any provision of the Intercompany
Note, other than any amendment, supplement or waiver which would not have an
adverse effect on the interests of the Collateral Agent or any other Secured
Creditor, the Indenture or the Senior Secured Notes, or subordinate its rights
under the Intercompany Note to the rights of any other creditor of Coinmach
Corp.
(iii) compromise, reduce, forgive or release or extend the time for
payment of any obligation of Coinmach Corp. under the Intercompany Note, or
(iv) take or omit to take any action the taking or the omission of
which would result in any material impairment or alteration of any obligation of
Coinmach Corp. under the Intercompany Note.
Section 16. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (a) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from the Indenture or any other instrument or agreement referred to therein, or
any assignment or transfer of any thereof; (b) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such agreement
or instrument, including, without limitation, this Agreement; (c) any furnishing
of any additional security to the Collateral Agent or its assignee or any
acceptance thereof or any release of any security by the Collateral Agent or its
assignee; (d) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof or (e) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of such Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
Section 17. REGISTRATION, ETC. If at any time when the Collateral
Agent shall determine to exercise its right to sell all or any part of the
Pledged Securities pursuant to Section 7, and such Pledged Securities or the
part thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the Collateral
Agent may, in its sole and absolute discretion, sell such Pledged Securities or
part thereof by private sale in such manner and under such circumstances as the
Collateral Agent may deem
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reasonably necessary or advisable in order that such sale may legally be
effected without such registration. Without limiting the generality of the
foregoing, in any such event the Collateral Agent, in its commercially
reasonable discretion, (i) may proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under such Securities Act, (ii)
may approach and negotiate with a single possible purchaser to effect such sale
and (iii) may restrict such sale to a purchaser who will represent and agree
that such purchaser is purchasing for its own account, for investment, and not
with a view to the distribution or sale of such Pledged Securities or part
thereof. In the event of any such sale, the Collateral Agent shall incur no
responsibility or liability for selling all or any part of the Pledged
Securities at a price which the Collateral Agent, in its commercially reasonable
discretion, in good xxxxx xxxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
Section 18. TERMINATION; RELEASE. (a) On the Termination Date, this
Agreement and the security interest created hereby shall terminate, and the
Collateral Agent shall, at the request and expense of the Pledgors, execute and
deliver to the Pledgors as promptly thereafter as reasonably practicable a
proper instrument or instruments acknowledging the satisfaction and termination
of this Agreement, and will duly assign, transfer and deliver to the Pledgors
(without recourse and without any representation or warranty other than a
representation that the Collateral Agent has not granted any lien on or security
interest in the Collateral) such of the Collateral as may be in the possession
of the Collateral Agent or any of its sub-agents and has not theretofore been
sold or otherwise applied or released pursuant to this Agreement, together with
any proceeds of Collateral at the time held by the Collateral Agent or any of
its sub-agents hereunder.
(b) Notwithstanding anything to the contrary contained above, upon
the presentment of satisfactory evidence to the Collateral Agent in its sole
discretion that all obligations evidenced by any Pledged Note have been repaid
or otherwise satisfied or forgiven in full, and that any payments received by
the applicable Pledgor were permitted to be received by such Pledgor pursuant to
Section 6 hereof, the Collateral Agent shall, upon the request and at the
expense of such Pledgor, duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty other than a
representation that the Collateral Agent has not granted any lien on or security
interest in such Pledged Note) such Pledged Note if same is then in the
possession of the Collateral Agent or any of its sub-agents and has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement.
(c) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 4.16 of the Indenture or released in
accordance with Section 11.05 of the Indenture and the proceeds of such sale or
sales or from such release are applied in accordance with, and to the extent
required by, the Indenture, to the extent required to be so applied, the
Collateral Agent, at the request and expense of the Pledgors, will duly assign,
transfer and deliver to the applicable Pledgor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and as may be in the possession of the Collateral
Agent or any of its sub-agents and has not theretofore been released pursuant to
this Agreement.
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(d) At any time that any Pledgor desires that Collateral be released
as provided in the foregoing subsection (a), (b) or (c), it shall deliver
to the Collateral Agent a certificate signed by its chief financial
officer stating that the release of the respective Collateral is permitted
pursuant to such subsection (a), (b) or (c).
(e) The Collateral Agent shall have no liability whatsoever to any
Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 18.
Section 19. NOTICES, ETC. All notices and communications hereunder
shall be telecopied or delivered by messenger or overnight courier service and
all such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when delivered
to the telegraph company, cable company or overnight courier, as the case may
be, or sent by telex or telecopier and when mailed shall be effective three
Business Days following deposit in the mail with proper postage, except that
notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent. All notices and other communications shall be
in writing and addressed as follows:
(a) if to any Pledgor, at:
Coinmach Service Corp.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Coinmach Corporation
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
(b) if to the Collateral Agent, at:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
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or at such other address as shall have been furnished in writing by any Person
described above to and received by the party required to give notice hereunder.
Section 20. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in accordance with Article Nine of the Indenture.
Section 21. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings
in this Agreement are for purposes of reference only and shall not limit or
define the meaning hereof. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement, which shall remain
binding on all parties hereto.
Section 22. RECOURSE. This Agreement is made with full recourse to
each Pledgor and pursuant to and upon all the representations, warranties,
covenants and agreements on the part of such Pledgor contained herein or in the
Indenture, and otherwise in writing in connection herewith or therewith.
Section 23. INTERCREDITOR AGREEMENT.
(a) The Liens granted hereunder in favor of the Collateral Agent for
the benefit of the Secured Creditors in respect of the Shared Collateral
and the exercise of any right related thereto thereby shall be subject, in
each case, to the terms of the Intercreditor Agreement.
(b) In the event of any direct conflict between the express terms
and provisions of this Agreement and of the Intercreditor Agreement, the
terms and provisions of the Intercreditor Agreement shall control.
(c) Notwithstanding anything to the contrary herein, any provision
hereof that requires any Pledgor to (i) deliver any Shared Collateral to
the Collateral Agent or (ii) provide that the Collateral Agent have
control over such Shared Collateral may be satisfied by (A) the delivery
of such Shared Collateral by such Pledgor to the Credit Agreement
Collateral Agent for
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the benefit of the Lenders and the Collateral Agent for the benefit of the
Secured Creditors pursuant to Section 5.4 of the Intercreditor Agreement
and (B) providing that the Credit Agreement Collateral Agent be provided
with control with respect to such Shared Collateral of such Pledgor for
the benefit of the Lenders and the Collateral Agent for the benefit of
Secured Creditors pursuant to Section 5.4 of the Intercreditor Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXHIBIT 4.3
IN WITNESS WHEREOF, each Pledgor and the Collateral Agent have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
COINMACH SERVICE CORP.,
as the Company and Pledgor
By:_________________________________________
Name:
Title:
COINMACH LAUNDRY CORPORATION,
as Guarantor and Pledgor
By:_________________________________________
Name:
Title:
THE BANK OF NEW YORK, as Collateral Agent
By:_________________________________________
Name:
Title:
S-1
EXHIBIT 4.3
SCHEDULE A
PLEDGOR: COINMACH SERVICE CORP.
Part I. Pledged Stock
Percentage of
all Outstanding
Shares of
Name of Number Certificate Capital Stock
Issuing Corporation Type of Shares of Shares No(s). of Issuer
----------------------------------- --------------------- --------- ------------ ----------------
Coinmach Laundry Corporation Common Stock [other?] [ ] [ ] 100%
Appliance Warehouse of America Inc. Common Stock [ ] [ ] 100%
Part II. Pledged Interests
Percentage of all
Name of Issuing Outstanding Interests of
Non-Corporate Entity Type of Interest Certificate No(s). Issuer
------------------- ---------------- ------------------ -------------------------
Part III. Pledged Notes
Name of Principal Date of Maturity
Issuer Amount Issuance Interest Rate Date
-------------------- ----------------- ------------------- ------------- --------
Coinmach Corporation As stated therein November [ ], 2004 [ ]% [ ], 2024
[List Guarantors of November [ ], 2004 N/A [ ], 2024
Intercompany Note]
PLEDGOR: COINMACH LAUNDRY CORPORATION
Part I. Pledged Stock
Percentage of
all Outstanding
Shares of
Name of Number Certificate Capital Stock
Issuing Corporation Type of Shares of Shares No(s). of Issuer
-------------------- -------------------- --------- ----------- ----------------
Coinmach Corporation Common Stock [other?] [ ] [ ] 100%
Part II. Pledged Interests
Percentage of all
Name of Issuing Outstanding Interests of
Non-Corporate Entity Type of Interest Certificate No(s). Issuer
-------------------- ---------------- ------------------ ------------------------
Part III. Pledged Notes
Name of Principal Date of Maturity
Issuer Amount Issuance Interest Rate Date
------- --------- -------- ------------- --------
* NOTE: A SEPARATE SHEET SHOULD BE USED FOR EACH PLEDGOR.
-3-
SCHEDULE B
Organizational
Pledgor's Type of Jurisdiction of Identification Chief Executive Principal Place
Exact Name Organization Organization Number Office of Business
---------- ------------ --------------- ------------- --------------- ---------------
EXHIBIT 1
PLEDGE AMENDMENT
This Pledge Amendment, dated _______________________, is delivered
pursuant to Section 3.2 of the Agreement referred to below. The undersigned
hereby agrees that this Pledge Amendment may be attached to the PLEDGE
AGREEMENT, dated as of November [ ], 2004, among the undersigned, certain other
parties identified therein and The Bank of New York, as Collateral Agent (the
"Agreement"; capitalized terms used herein and not defined have the meanings
ascribed to them in the Agreement) and that the Pledged Securities listed on
this Pledge Amendment shall be deemed to be and shall become part of the
Collateral and shall secure all Obligations.
___________________________________,
as Pledgor
By: _______________________________
Name:
Title:
Part I. Pledged Stock
Percentage of
all
Outstanding
Shares of
Name of Number Certificate Capital Stock
Issuing Corporation Type of Shares of Shares No(s). of Issuer
------------------- -------------- --------- ----------- ----------------
Part II. Pledged Interests
Percentage of all
Name of Issuing Outstanding Interests
Non-Corporate Entity Type of Interest Certificate No(s). of Issuer
-------------------- ---------------- ---------------- ----------------------
Part III. Pledged Notes
Name of Principal Date of Maturity
Issuer Amount Issuance Interest Rate Date
------- --------- -------- ------------- --------
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EXHIBIT 2
FORM OF ISSUER ACKNOWLEDGMENT
The undersigned hereby (i) acknowledges receipt of a copy of the PLEDGE
AGREEMENT (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Agreement"; capitalized terms used herein but not
defined herein have the meanings given such terms in the Agreement), dated as of
November [ ], 2004, among COINMACH SERVICE CORP., COIMACH LAUNDRY CORPORATION
and THE BANK OF NEW YORK, as collateral agent (in such capacity, the "Collateral
Agent"), (ii) agrees promptly to note on its books the security interests
granted and confirmed under the Agreement in [DESCRIBE SECURITIES] (the
"Uncertificated Securities"), (iii) agrees that it will comply with the
instructions of the Collateral Agent with respect to the Uncertificated
Securities and all proceeds and other interests related thereto constituting
Collateral without further consent by the applicable Pledgor, (iv) agrees to
notify the Collateral Agent upon obtaining knowledge of any interest in favor of
any Person in the Uncertificated Securities or any related Collateral that is
adverse to the interest of the Collateral Agent therein and (v) waives any right
or requirement at any time hereafter to receive a copy of the Agreement in
connection with the registration of the Uncertificated Securities thereunder in
the name of the Collateral Agent or its nominee or the exercise of voting rights
by the Collateral Agent or its nominee.
[NAME OF ISSUER]
By: ____________________________________
Name:
Title:
