[EXECUTION COPY]
AMENDED AND RESTATED HOLDINGS PLEDGE AGREEMENT
This AMENDED AND RESTATED HOLDINGS PLEDGE AGREEMENT (as
amended, supplemented, amended and restated or otherwise modified from time to
time, this "Pledge Agreement"), dated as of September 11, 1998 (amending and
restating the Holdings Pledge Agreement, dated as of February 13, 1998 (the
"Existing Pledge Agreement")), is made by XXXXX XXXXX INC., a Delaware
corporation (the "Pledgor"), in favor of FLEET NATIONAL BANK, as administrative
agent (together with its successor(s) thereto, in such capacity the
"Administrative Agent") for each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement, dated as of September 11, 1998, amending and restating in its
entirety that certain Credit Agreement, dated as of February 13, 1998 (as
amended prior to the Amendment Effective Date, the "Existing Credit Agreement")
(as so amended and restated or otherwise modified, and together with all
amendments, supplements, restatements and other modifications, if any,
thereafter made thereto, the "Credit Agreement"), among Xxxxx Xxxxx, a New York
general partnership (the "Borrower"), each of the Parent Guarantors named
therein (including the Pledgor), the various financial institutions as are, or
may from time to time become, parties thereto (each, individually, a "Lender",
and collectively, the "Lenders"), DLJ Capital Funding, Inc., as the Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making and maintaining of the
Credit Extensions under the Credit Agreement, the Pledgor was required to
execute and deliver the Existing Pledge Agreement;
WHEREAS, the Pledgor has requested that the Existing Pledge Agreement
be amended and restated in its entirety to read as hereinafter set forth; and
WHEREAS, it is in the best interests of the Pledgor to execute this
Pledge Agreement inasmuch as the Pledgor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders and the Issuer pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the
Lenders and the Issuer to make and maintain Credit Extensions to the Borrower
pursuant to the Credit Agreement, and to induce Secured Parties to enter into
Rate Protection Agreement(s), the Pledgor agrees, for the benefit of each
Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Note Issuer" means each Person identified in Item A of
Attachment 1 hereto as the issuer of the Pledged Note identified opposite the
name of such Person.
"Pledged Notes" means all promissory notes of any Pledged Note Issuer
in substantially the form of Exhibit A hereto which are delivered by the
Pledgor to the Administrative Agent as
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Pledged Property hereunder, as such promissory notes, in accordance with
Section 4.6, are amended, modified or supplemented from time to time, together
with any promissory note of any Pledged Note Issuer taken in extension or
renewal thereof or substitution therefor.
"Pledged Property" means all Pledged Shares, all Pledged Notes, and
all other pledged shares of capital stock or promissory notes, all other
securities, all assignments of any amounts due or to become due, all other
instruments which are now being delivered by the Pledgor to the Administrative
Agent or may from time to time hereafter be delivered by the Pledgor to the
Administrative Agent for the purpose of pledge under this Pledge Agreement or
any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item B of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by the Pledgor to the Administrative Agent as
Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code, as in effect from time to
time in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or
in the Credit Agreement or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Pledge Agreement,
including its preamble and recitals, with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. The Pledgor hereby (x) confirms
the pledge, hypothecation, assignment, charge, mortgage, delivery, and transfer
to the Administrative Agent, for its benefit and the ratable benefit of each of
the Secured Parties pursuant to the
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Existing Pledge Agreement and (y) not in limitation of such pledge,
hypothecation, assignment, charge, mortgage, delivery, and transfer but as a
supplement thereto, and hereby grants to the Administrative Agent, for its
benefit and the ratable benefit of the Secured Parties, a continuing security
interest in, all of the following property of the Pledgor (the "Collateral"):
(a) all promissory notes of each Pledged Note Issuer
identified in Item A of Attachment 1 hereto;
(b) all other Pledged Notes issued from time to time;
(c) all issued and outstanding shares of capital stock of
each Pledged Share Issuer identified in Item B of Attachment 1 hereto;
(d) all other Pledged Shares issued from time to time;
(e) all other Pledged Property, whether now or hereafter
delivered to the Administrative Agent in connection with this Pledge
Agreement;
(f) all Dividends, Distributions, interest, and other
payments and rights with respect to any Pledged Property; and
(g) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures
the payment in full in cash of all Obligations of the Borrower now or hereafter
existing under the Credit Agreement, the Notes and each other Loan Document to
which the Borrower is or may become a party, whether for principal, interest,
costs, fees, expenses, or otherwise, and all obligations of the Pledgor and
each other Obligor whether now or hereafter existing under this Pledge
Agreement and each other Loan Document to which the Pledgor or such other
Obligor is or may become a party (all such obligations of the Borrower, the
Pledgor and such other Obligor being the "Secured Obligations").
SECTION 2.3. Delivery of Pledged Property. All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares and all Pledged Notes, shall be delivered to and held by or on behalf of
(and, in the case of the Pledged Notes, endorsed to the order of) the
Administrative Agent pursuant hereto, shall be in suitable form for transfer by
delivery, and shall be accompanied by all necessary instruments of transfer or
assignment, duly executed in blank.
SECTION 2.4. Dividends on Pledged Shares and Payments on Pledged
Notes. In the event that any Dividend is to be paid on any Pledged Share or any
payment of principal or interest is to be made on any Pledged Note at a time
when no Default of the nature referred to in Section 8.1.9 of the Credit
Agreement or Event of Default has occurred and is continuing or
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would result therefrom, such Dividend or payment may be paid directly to the
Pledgor. If any such Default or Event of Default has occurred and is
continuing, then any such Dividend or payment shall be paid directly to the
Administrative Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This Pledge
Agreement shall create a continuing security interest in the Collateral and
shall
(a) remain in full force and effect until payment in full in
cash of all Secured Obligations, the termination or expiration of all
Letters of Credit, the termination of all Rate Protection Agreements
and the termination of all Commitments,
(b) be binding upon the Pledgor and its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the
provisions of Section 11.11 and Article X of the Credit Agreement. Upon (i) the
sale, transfer or other disposition of Collateral in accordance with the Credit
Agreement or (ii) the payment in full in cash of all Secured Obligations, the
termination or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, the security
interests granted herein shall automatically terminate with respect to (x) such
Collateral (in the case of clause (i)) or (y) all Collateral (in the case of
clause (ii)). Upon any such sale, transfer, disposition or termination, the
Administrative Agent will, at the Pledgor's sole expense, deliver to the
Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Pledged Shares and all Pledged Notes, together with all other Collateral held
by the Administrative Agent hereunder, and execute and deliver to the Pledgor
such documents as the Pledgor shall reasonably request to evidence such
termination.
SECTION 2.6. Security Interest Absolute. All rights of the
Administrative Agent and the security interests granted to the Administrative
Agent hereunder, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional, irrespective of
(a) any lack of validity or enforceability of the Credit
Agreement, any Note or any other Loan Document,
(b) the failure of any Secured Party or any holder of any
Note
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(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or
any other Person under the provisions of the Credit
Agreement, any Note, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Secured
Obligations,
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any
other extension, compromise or renewal of any Secured Obligation,
(d) any reduction, limitation, impairment or termination of
any Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to (and the Pledgor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Secured Obligations or otherwise,
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note or any other Loan Document,
(f) any addition, exchange, release, surrender or
non-perfection of any collateral (including the Collateral), or any
amendment to or waiver or release of or addition to or consent to
departure from any guaranty, for any of the Secured Obligations, or
(g) any other circumstances which might otherwise constitute
a defense available to, or a legal or equitable discharge of, the
Borrower, any other Obligor, any surety or any guarantor.
SECTION 2.7. Postponement of Subrogation, etc. The Pledgor will not
exercise any rights which it may acquire by reason of any payment made
hereunder, whether by way of subrogation, reimbursement or otherwise, until the
prior payment, in full and in cash, of all Secured Obligations, the termination
or expiration of all Letters of Credit, the termination of all Rate Protection
Agreements and the termination of all Commitments. Any amount paid to the
Pledgor on account of any payment made hereunder prior to the payment in full
in cash of all Secured Obligations shall be held in trust for the benefit of
the Secured Parties and each holder of a Note and shall immediately be paid to
the Secured Parties and each holder of a Note and credited and applied against
the Secured Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Agreement; provided, however, that if
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(a) the Pledgor has made payment to the Secured Parties and
each holder of a Note of all or any part of the Secured Obligations,
and
(b) all Secured Obligations have been paid in full in cash,
all Letters of Credit have been terminated or expired, all Rate
Protection Agreements have been terminated and all Commitments have
been permanently terminated,
each Secured Party and each holder of a Note agrees that, at the Pledgor's
request, the Secured Parties and the holders of the Notes will execute and
deliver to the Pledgor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation
to the Pledgor of an interest in the Secured Obligations resulting from such
payment by the Pledgor. In furtherance of the foregoing, for so long as any
Secured Obligations, Letters of Credit or Commitments remain outstanding or any
Rate Protection Agreement remains in full force and effect, the Pledgor shall
refrain from taking any action or commencing any proceeding against the
Borrower or any other Obligor (or its successors or assigns, whether in
connection with a bankruptcy proceeding or otherwise) to recover any amounts in
respect of payments made under this Pledge Agreement to any Secured Party or
any holder of a Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties, etc. The Pledgor
represents and warrants to each Secured Party, as at the date of each pledge
and delivery hereunder (including each pledge and delivery of Pledged Shares
and each pledge and delivery of a Pledged Note) by the Pledgor to the
Administrative Agent of any Collateral, as set forth in this Article III.
SECTION 3.2. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except
any lien or security interest granted pursuant hereto in favor of the
Administrative Agent.
SECTION 3.3. Valid Security Interest. The delivery of such Collateral
to the Administrative Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof,
securing the Secured Obligations. No filing or other action will be necessary
to perfect or protect such security interest.
SECTION 3.4. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized
and validly issued, fully paid, and non-assessable, and constitute all of the
issued and outstanding shares of capital stock of each
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Pledged Share Issuer. The Pledgor has no Subsidiaries other than the Pledged
Share Issuers, except as set forth in Item C of Attachment 1.
SECTION 3.5. As to Pledged Notes. In the case of each Pledged Note,
all of such Pledged Notes have been duly authorized, executed, endorsed, issued
and delivered, and are the legal, valid and binding obligation of the issuers
thereof, and are not in default.
SECTION 3.6. Authorization, Approval, etc. No authorization, approval,
or other action by, and no notice to or filing with, any governmental
authority, regulatory body or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant
to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by the Pledgor, or
(b) for the exercise by the Administrative Agent of the
voting or other rights provided for in this Pledge Agreement, or,
except with respect to any Pledged Shares, as may be required in
connection with a disposition of such Pledged Shares by laws affecting
the offering and sale of securities generally, the remedies in respect
of the Collateral pursuant to this Pledge Agreement.
SECTION 3.7. Compliance with Laws. The Pledgor is in compliance with
the requirements of all applicable laws (including the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected to materially
adversely affect the value of the Collateral or the worth of the Collateral as
collateral security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Pledgor covenants and agrees that,
so long as any portion of the Secured Obligations shall remain unpaid, any
Letters of Credit shall be outstanding, any Rate Protection Agreement shall
remain in full force and effect or any Secured Party shall have any outstanding
Commitment, the Pledgor will, unless the Required Lenders shall otherwise
consent in writing, perform, comply with and be bound by the obligations set
forth in this Article IV.
SECTION 4.2. Protect Collateral; Further Assurances, etc. The Pledgor
agrees and covenants that it will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). The Pledgor will warrant and
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defend the right and title herein granted unto the Administrative Agent in and
to the Collateral (and all right, title, and interest represented by the
Collateral) against the claims and demands of all Persons whomsoever. 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 take all further action, that may be necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby or to enable
the Administrative Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral.
SECTION 4.3. Stock Powers, etc. The Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral)
delivered by the Pledgor pursuant to this Pledge Agreement will be accompanied
by duly executed undated blank stock powers, or other equivalent instruments of
transfer acceptable to the Administrative Agent. The Pledgor will, from time to
time upon the request of the Administrative Agent, promptly deliver to the
Administrative Agent such stock powers, instruments, and similar documents,
satisfactory in form and substance to the Administrative Agent, with respect to
the Collateral as the Administrative Agent may reasonably request and will,
from time to time upon the request of the Administrative Agent after the
occurrence of any Event of Default, promptly transfer any Pledged Shares or
other shares of common stock constituting Collateral into the name of any
nominee designated by the Administrative Agent.
SECTION 4.4. Continuous Pledge. The Pledgor will, at all times, keep
pledged to the Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, all Pledged Notes, all interest, principal
and other proceeds received by the Administrative Agent with respect to the
Pledged Notes, and all other Collateral and other securities, instruments,
proceeds, and rights from time to time received by or distributable to the
Pledgor in respect of any Collateral and will not permit any Pledged Share
Issuer to issue any capital stock which shall not have been immediately duly
pledged hereunder on a first priority perfected basis.
SECTION 4.5. Voting Rights; Dividends, etc. The Pledgor agrees:
(a) after any Default of the nature referred to in Section
8.1.9 of the Credit Agreement or any Event of Default shall have
occurred and be continuing, promptly upon receipt of notice thereof by
the Pledgor and without any request therefor by the Administrative
Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all interest, all principal, all other cash
payments, and all proceeds of the Collateral, all of which shall be
held by the Administrative Agent as additional Collateral for use in
accordance with Section 6.4; and
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(b) after any Event of Default shall have occurred and be
continuing and the Administrative Agent has notified the Pledgor of
the Administrative Agent's intention to exercise its voting power
under this Section 4.5(b)
(i) the Administrative Agent may exercise (to the
exclusion of the Pledgor) the voting power and all other
incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting
Collateral and the Pledgor hereby grants the Administrative
Agent an irrevocable proxy, exercisable under such
circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent
such additional proxies and other documents as may be
necessary to allow the Administrative Agent to exercise such
voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which
the Pledgor is then obligated to deliver to the Administrative Agent, shall,
until delivery to the Administrative Agent, be held by the Pledgor separate and
apart from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.5(b), the Pledgor shall have the exclusive voting
power with respect to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of the Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Pledgor which are
necessary to allow the Pledgor to exercise voting power with respect to any
such share of capital stock (including any of the Pledged Shares) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
SECTION 4.6. Additional Undertakings. The Pledgor will not, without the
prior written consent of the Administrative Agent:
(a) enter into any agreement amending, supplementing, or
waiving any provision of any Pledged Note (including any underlying
instrument pursuant to which such Pledged Note is issued) or
compromising or releasing or extending the time for payment of any
obligation of the maker thereof; or
(b) take or omit to take any action the taking or the
omission of which would result in any impairment or alteration of any
obligation of the maker of any Pledged Note or other instrument
constituting Collateral.
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ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The
Pledgor hereby irrevocably appoints the Administrative Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time in the
Administrative Agent's discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including after the
occurrence and during the continuance of a Default of the nature referred to in
Section 8.1.9 of the Credit Agreement or an Event of Default:
(a) to ask, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Pledgor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Pledgor pursuant to Section 6.4.
SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on
the Administrative Agent hereunder are solely to protect its interest (on
behalf of the Secured Parties) in the Collateral and shall not impose any duty
on it to exercise any such powers. Except for reasonable care of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any Collateral or
responsibility for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Property, whether or not the Administrative Agent has
or is deemed to have knowledge of such matters, or
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(b) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may, without notice
except as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as the Administrative
Agent may deem commercially reasonable. The Pledgor agrees that, to
the extent notice of sale shall be required by law, at least ten days'
prior notice to the Pledgor of the time and place of any public sale
or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not
be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any
public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into
the name of the Administrative Agent or its nominee, with or
without disclosing that such Collateral is subject to the
lien and security interest hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent of any
amount due or to become due thereunder,
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(iii) enforce collection of any of the Collateral by
suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings
in the Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral,
and
(vi) execute (in the name, place and stead of the
Pledgor) endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or
any of the Collateral.
SECTION 6.2. Securities Laws. If the Administrative Agent shall
determine to exercise its right to sell all or any of the Collateral pursuant
to Section 6.1, the Pledgor agrees that, upon request of the Administrative
Agent, the Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Administrative Agent, advisable to
register such Collateral under the provisions of the Securities Act of
1933, as from time to time amended (the "Securities Act"), and to
cause the registration statement relating thereto to become effective
and to remain effective for such period as prospectuses are required
by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable
thereto;
(b) use its best efforts to qualify the Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Collateral, as requested by
the Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law.
-13-
The Pledgor further acknowledges the impossibility of ascertaining the amount
of damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if the Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION 6.3. Compliance with Restrictions. The Pledgor agrees that in
any sale of any of the Collateral whenever an Event of Default shall have
occurred and be continuing, the Administrative Agent is hereby authorized to
comply with any limitation or restriction in connection with such sale as it
may be advised by counsel is necessary in order to avoid any violation of
applicable law (including compliance with such procedures as may restrict the
number of prospective bidders and purchasers, require that such prospective
bidders and purchasers have certain qualifications, and restrict such
prospective bidders and purchasers to persons who will represent and agree that
they are purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and the Pledgor further agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall the Administrative
Agent be liable nor accountable to the Pledgor for any discount allowed by the
reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral shall be applied by the
Administrative Agent against, all or any part of the Secured Obligations as
follows:
(a) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit Agreement
and Section 6.5;
(b) second, to the equal and ratable payment of Secured
Obligations, in accordance with each Secured Party's Secured
Obligations owing to it under or pursuant to the Credit Agreement or
any other Loan Document, or under or pursuant to any Hedging
Obligation included in the Secured Obligations as to each Secured
Party, applied
(i) first to fees and expense reimbursements then
due to such Secured Party,
(ii) then to interest due to such Secured Party,
-14-
(iii) then to pay or prepay principal of the Loans
owing to, or to reduce the "credit exposure" of, such Secured
Party under such Hedging Obligation, as the case may be, and
(iv) then to pay the remaining outstanding Secured
Obligations and cash collateralize all Letter of Credit
Outstandings;
(c) third, without duplication of any amounts paid pursuant
to clause (b) above, to the Indemnified Parties to the extent of any
amounts owing pursuant to Section 11.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security
until the payment in full in cash of all of the Secured Obligations,
the termination or expiration of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of
all Commitments, after which such remaining cash proceeds shall be
paid over to the Pledgor or to whomsoever may be lawfully entitled to
receive such surplus.
For purposes of this Pledge Agreement, the "credit exposure" at any time of any
Secured Party with respect to a Hedging Obligation to which such Secured Party
is a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal
amount and term of such Hedging Obligation.
SECTION 6.5. Indemnity and Expenses. The Pledgor hereby indemnifies
and holds harmless the Administrative Agent from and against any and all
claims, losses, and liabilities arising out of or resulting from this Pledge
Agreement (including enforcement of this Pledge Agreement), except claims,
losses, or liabilities resulting from the Administrative Agent's gross
negligence or wilful misconduct. Upon demand, the Pledgor will pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and disbursements of its counsel and of any experts and
agents, which the Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any of
the provisions hereof.
-15-
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments, etc. No amendment to or waiver of any
provision of this Pledge Agreement nor consent to any departure by the Pledgor
herefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be) and the Pledgor in the case of an
amendment, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
SECTION 7.3. Protection of Collateral. The Administrative Agent may
from time to time, at its option, perform any act which the Pledgor agrees
hereunder to perform and which the Pledgor shall fail to perform after being
requested in writing so to perform (it being understood that no such request
need be given after the occurrence and during the continuance of an Event of
Default) and the Administrative Agent may from time to time take any other
action which the Administrative Agent reasonably deems necessary for the
maintenance, preservation or protection of any of the Collateral or of its
security interest therein.
SECTION 7.4. Addresses for Notices. All notices and other
communications provided for hereunder to any party hereto shall be in writing
(including telegraphic communication) and mailed or telecopied or delivered to
such party, addressed to such party at its address specified in the Credit
Agreement. All such notices and other communications, when mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any such notice or
communication, if transmitted by telecopier, shall be deemed given when
transmitted and electronically confirmed.
SECTION 7.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
-16-
SECTION 7.7. Counterparts. This Pledge Agreement may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION 7.8. Governing Law, Entire Agreement, etc. THIS PLEDGE
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK, 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. THIS PLEDGE AGREEMENT AND THE OTHER LOAN
DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS,
WRITTEN OR ORAL, WITH RESPECT THERETO.
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
XXXXX XXXXX INC.
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ Authorized Signatory
----------------------------------
Name:
Title:
EXHIBIT A
to Holdings
Pledge Agreement
PROMISSORY NOTE
$--------------- -------- --, ----
FOR VALUE RECEIVED, the undersigned, ______________, a _______________
corporation (the "Maker"), promises to pay to the order of XXXXX XXXXX INC., a
Delaware corporation (the "Payee"), in equal ________ installments, commencing
__________ __, ____ to and including __________ __, ____, the principal sum of
DOLLARS ($ ), representing the aggregate principal amount of
an intercompany loan made by the Payee to the Maker.
The unpaid principal amount of this promissory note (this "Note") from
time to time outstanding shall bear interest at a rate of interest equal to
____________, which the Maker represents to be a lawful and commercially
reasonable rate, payable __________, and all payments of principal of and
interest on this Note shall be payable in lawful currency of the United States
of America. All such payments shall be made by the Maker to an account
established by the Payee at _______________ and shall be recorded on the grid
attached hereto by the holder hereof (including the Administrative Agent
(hereinafter defined) as pledgee). Upon notice from the Administrative Agent
that a Default (as defined in the Amended and Restated Credit Agreement, dated
as of September 11, 1998 amending and restating in its entirety that certain
Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date) (as so amended and restated or otherwise modified,
and together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Credit Agreement"), among
Xxxxx Xxxxx, a New York general partnership (the "Borrower"), the Payee and the
other Parent Guarantors named therein, the various financial institutions as
are, or may from time to time become, parties thereto (each, individually, a
"Lender", and collectively, the "Lenders"), DLJ Capital Funding, Inc., as
Syndication Agent, Fleet National Bank, as the administrative agent (in such
capacity, the "Administrative Agent") and Credit Lyonnais New York Branch, as
the documentation agent (in such capacity, the "Documentation Agent") as of the
nature referred to in Section 8.1.9 of the Credit Agreement or an Event of
Default (as defined in the Credit Agreement) has occurred and is continuing
under the Credit Agreement, the Maker shall make such payments, in same day
funds, to such other account as the Administrative Agent shall direct in such
notice.
This Note is one of the Pledged Notes referred to in the Pledge
Agreement. Upon the occurrence and continuance of an Event of Default under the
Credit Agreement, and notice thereof by the Administrative Agent to the Maker,
the Administrative Agent shall have all rights of the Payee to collect and
accelerate, and enforce all rights with respect to, the Indebtedness
evidenced by this Note. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
Reference is made to the Credit Agreement for a description of the
Pledge Agreement pursuant to which this Note has been pledged to the
Administrative Agent as security for the Secured Obligations outstanding from
time to time under the Credit Agreement and each other Loan Document.
In addition to, but not in limitation of, the foregoing, the Maker
further agrees to pay all expenses, including reasonable attorneys' fees and
legal expenses, incurred by the holder (including the Administrative Agent as
pledgee) of this Note endeavoring to collect any amounts payable hereunder
which are not paid when due, whether by acceleration or otherwise.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
-2-
THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON
THIS NOTE. THE MAKER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PAYEE TO ACCEPT THIS NOTE.
[NAME OF MAKER]
By
----------------------------------
Name:
Title:
Pay to the order of FLEET NATIONAL
BANK, as Administrative Agent
XXXXX XXXXX INC.
By
----------------------------------
Name:
Title:
-3-
GRID
Intercompany Loans made by Xxxxx Xxxxx Inc. to [Name of Maker] and
payments of principal of such Loans.
Amount of Amount of Outstanding
Intercompany Principal Principal Notation
Date Loan Payment Balance Made By
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ATTACHMENT 1
to Holdings
Pledge Agreement
XXXXX XXXXX INC.
Item A. Pledged Notes
Pledged Note Issuer Description
------------------- ------------
None.
Item B. Pledged Shares
Common Stock
------------------------------------------------
Authorized Outstanding % of
Pledged Share Issuer Shares Shares Shares
-------------------- ---------- ----------- --------
DRI I Inc. 1,000 1,000 Pledged
100%
Item C. Additional Subsidiaries
None.
