EXHIBIT 10.18
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of June 29, 2004, is
made by VISKASE COMPANIES, INC., a Delaware corporation (the "Company"), and
each of its Domestic Restricted Subsidiaries (such capitalized term and other
capitalized terms used but not defined herein having the meanings respectively
ascribed thereto in the Security Agreement (as defined below)) hereafter party
hereto (such Subsidiaries, together with Company, each, a "Pledgor" and,
collectively, the "Pledgors"), in favor of LASALLE BANK NATIONAL ASSOCIATION
("LaSalle"), as collateral agent (together with its successor(s) thereto in such
capacity, "Pledgee") for the Trustee and Holders, in light of the following:
RECITALS:
A. The Company and LaSalle, as collateral agent and as trustee, have
entered into an Indenture, dated as of June 29, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture"), pursuant
to which the Company has issued 90,000 Units (and, together with any additional
units that may be issued from time to time thereunder or exchanged therefor or
for such additional units, the "Units"), each of which consists of an 11-1/2%
Senior Secured Note due 2011 in a principal amount of $1,000 (and, together with
any additional notes that may be issued by the Company from time to time
thereunder or exchanged therefor or for such additional notes, the "Notes") and
a warrant to purchase 8.947 shares of common stock of the Company, at an
exercise price of $0.01 per share, subject to adjustment.
B. Each Domestic Restricted Subsidiary of the Company that is not an
Immaterial Subsidiary is required under the Indenture to (a) become a party to
the Indenture and deliver a Guarantee to guarantee the payment of the Notes and
the other Obligations of the Company thereunder and the other Indenture
Documents to which the Company is a party and (b) become a party hereto as a
Pledgor and secure its Obligations under the Indenture, such Guarantee and the
other Indenture Documents to which it is a party pursuant to the terms hereof.
C. The Pledgors and the Pledgee have entered into that certain Security
Agreement, dated as of June 29, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Security Agreement"), pursuant to
which the Pledgors have granted security interests in certain of their assets
(including the Collateral) as more fully described therein.
D. The Company and Xxxxx Fargo Foothill, Inc. ("Foothill") have entered
into that certain Loan and Security Agreement dated as of June 29, 2004 (as
amended, restated, supplemented, replaced or otherwise modified from time to
time, the "Credit Agreement").
E. The Pledgors and Foothill have entered into one or more pledge
agreements, dated as of June 29, 2004 (such pledge agreement(s), together with
any others entered into after the date hereof, the "Credit Agreement Pledge
Agreement"), pursuant to which the Pledgors have granted a security interest in
the Collateral in favor of the Administrative Agent.
F. The Pledgee, the Administrative Agent and the Company have entered into
that certain Intercreditor and Lien Subordination Agreement, dated as of June
29, 2004 (as amended,
restated, supplemented, replaced or otherwise modified from time to time, the
"Intercreditor Agreement"), which agreement, among other things, sets forth, as
between the Pledgee and the Administrative Agent, the relative priority of their
respective Liens in the Collateral and their rights with respect thereto.
G. The Company desires to secure its Obligations under the Notes, the
Indenture and each other Indenture Document to which it becomes a party and each
other Pledgor that becomes a party hereto desires to secure its Guarantee, the
Indenture and each other Indenture Document to which it becomes a party by
granting to the Pledgee, for the benefit of itself and the other Secured
Parties, security interests in the Collateral as set forth herein.
H. To induce the Initial Purchaser to purchase the Units and the
underlying Notes, each Holder to hold the Units and the underlying Notes to be
held by it and LaSalle to act in its capacities as trustee and collateral agent,
each Pledgor desires to pledge, grant, transfer, and assign to the Pledgee, for
the benefit of itself and the other Secured Parties, a security interest in the
Collateral to secure the Obligations, as provided herein.
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and each intending
to be bound hereby, the Pledgee and each Pledgor agree as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is for the benefit of the
Pledgee and the other Secured Parties to secure the prompt and complete payment
and performance when due of any and all of the Obligations.
2. DEFINITION OF ISSUERS; DESIGNATED NUMBER; CAPITAL STOCK; PLEDGED
INTERESTS; PLEDGED COLLATERAL. As used herein, (A) the term "Issuers" shall
mean, with respect to each Pledgor, each of the Persons identified as an Issuer
on Annex A attached hereto of such Pledgor (or any addendum or supplement
thereto), and any successors thereto, whether by merger or otherwise; (B) the
term "Designated Number" shall mean, with respect to any Issuer that is (1) a
Domestic Subsidiary of a Pledgor, all of the Capital Stock of such Issuer held
by such Pledgor and (2) a Foreign Subsidiary of a Pledgor, with respect to its
Capital Stock that is (x) not Voting Stock, all of such Capital Stock of such
Issuer held by such Pledgor and (y) Voting Stock, the largest whole number of
shares or units, as the case may be, of Voting Stock of such Issuer held by such
Pledgor representing not greater than sixty- five percent (65%) of all of the
fully diluted issued and outstanding Voting Stock of such Issuer (whether or not
owned by such Pledgor); (C) the term "Pledged Interest" means, with respect to
each Issuer, the Designated Number of Capital Stock identified as Pledged
Interests of such Issuer on Annex A attached hereto of the Pledgor that is a
holder of the Capital Stock of such Issuer (or any addendum or supplement
thereto); (D) the term "Pledged Collateral" means the "Pledged Interests" and
the "Future Rights" as defined in and acquired pursuant to Section 3.2 below,
collectively, and (E) "Excluded Capital Stock" means, with respect to any Issuer
that is a
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Subsidiary of the Company, that portion of such Issuer's Capital Stock that
would otherwise constitute Collateral to the extent the greater of the par
value, book value as carried by the Pledgor that is the holder thereof or the
market value of any such Capital Stock is equal to or greater than 20% of the
aggregate principal amount of the Notes then outstanding. Notwithstanding
anything to the contrary in the immediately preceding sentence, neither the
Pledged Collateral nor the Future Interests relating to any Issuer shall include
any Excluded Capital Stock. Annex A of any Pledgor may be supplemented from time
to time pursuant to Section 3.2 below. Each Pledgor represents and warrants to
the Pledgee for the benefit of the Pledgee and the other Secured Parties that on
the date hereof (a) Annex A attached hereto of such Pledgor correctly identifies
the Pledged Interests and the Pledged Collateral owned by such Pledgor with
respect to Issuers; and (b) such Pledgor is the holder of record and sole
beneficial and legal owner of such Pledged Interests and Pledged Collateral.
3. PLEDGE OF PLEDGED COLLATERAL AND OTHER COLLATERAL.
3.1 Pledge. (i) To secure the Obligations and for the purposes set forth
in Section 1 hereof, each Pledgor hereby pledges and collaterally assigns, and
grants a security interest in and lien on, in favor of Pledgee for the benefit
of the Pledgee and the other Secured Parties, all of such Pledgor's right, title
and interest in, to, and under (A) the Pledged Collateral, (B) any additional
Pledged Collateral acquired pursuant to Section 3.2 below (whether by purchase,
dividend, merger, consolidation, sale of assets, split, spin-off, or any other
dividend or distribution of any kind or otherwise), (C) all distributions,
dividends, cash, certificates, liquidation rights and interests, options,
rights, warrants, instruments or other property from time to time received,
receivable or otherwise distributed in respect of or in exchange or substitution
for any and all of the Pledged Collateral (excluding any of the foregoing items
in the preceding clause with respect to an Issuer to the extent and only to the
extent that their inclusion would cause (i) the number of shares or units, as
the case may be, of Capital Stock pledged under this Agreement to exceed, with
respect to such Issuer, the Designated Number or (ii) such Pledged Collateral to
constitute Excluded Capital Stock, in each case, after giving effect to such
issuances), (D) such Pledgor's right to vote the Pledged Collateral, and (E) all
proceeds, products, replacements and substitutions for any of the foregoing, in
each case whether now owned or hereafter acquired by such Pledgor (collectively,
the "Collateral"). Notwithstanding the foregoing, the term Collateral shall in
no event include the Excluded Capital Stock of any Issuer.
(ii) If the Pledged Collateral is evidenced by certificates, then such
Pledgor shall concurrently herewith deposit with the Pledgee, for the benefit of
itself, the other Secured Parties and the Administrative Agent, in accordance
with the terms of the Intercreditor Agreement, the Pledged Collateral owned by
such Pledgor on the date hereof and the certificates representing the Pledged
Collateral endorsed in blank by such Pledgor or accompanied by undated stock
powers or instruments of transfer, in each case, duly executed in blank by such
Pledgor. If any Capital Stock does not constitute Pledged Collateral but instead
constitutes Excluded Capital Stock that is evidenced by certificates, then such
Pledgor shall concurrently herewith deposit with the Pledgee, (x) for the
benefit of the Administrative Agent (and not any Secured Party), in accordance
with the terms of the Intercreditor Agreement and (y) on behalf of such Pledgor,
such
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Excluded Capital Stock owned by such Pledgor on the date hereof and the
certificates representing such Excluded Capital Stock endorsed in blank by such
Pledgor or accompanied by undated stock powers or instruments of transfer, in
each case, duly executed in blank by such Pledgor. For the avoidance of doubt,
if any certificate or instrument representing any Pledged Collateral also
represents any Excluded Capital Stock, the Lien created hereunder shall only
attach to the Capital Stock evidenced thereby to the extent such Capital Stock
does not constitute Excluded Capital Stock.
(iii) Whether or not the Pledged Collateral is evidenced by certificates,
such Pledgor shall, and hereby authorizes the Pledgee to, file a Code Financing
Statement naming such Pledgor as debtor and the Pledgee as secured party with
respect to the Collateral in the applicable filing office and in such form and
containing such substance as may be necessary to perfect the security interest
of the Pledgee in the Pledged Collateral by the filing of a Code Financing
Statement; provided, however, that no such authorization shall obligate the
Pledgee to make any such filing. Notwithstanding anything to the contrary
contained in this Agreement, the Pledgee shall not as a result of this Agreement
be responsible or liable for any obligations or liabilities of such Pledgor in
such Pledgor's capacity as a holder of any Capital Stock of any Issuer, and the
Pledgee shall not be deemed to have assumed any of such obligations or
liabilities.
3.2 Subsequently Acquired Pledged Collateral. (i) If at any time or from
time to time after the date hereof during the term of this Agreement, any
Pledgor shall acquire any additional Pledged Interests, including any further
stock, or equity in each Issuer (whether by purchase, dividend, merger,
consolidation, sale of assets, split, spin-off, or any other dividend or
distribution of any kind or otherwise) (collectively, the "Future Rights")
(provided, however, that Future Rights under this clause shall exclude any
Future Rights to the extent and only to the extent that (i) their inclusion
would cause the number of shares or units, as the case may be, of Capital Stock
pledged hereunder to exceed the Designated Number or (ii) such Future Rights
would constitute Excluded Capital Stock, in each case, after giving effect to
the issuance of such Future Rights and any related issuances).
(ii) Such Pledgor will forthwith pledge and, if applicable, deposit such
additional Pledged Collateral with the Pledgee, for the benefit of itself, the
other Secured Parties and the Administrative Agent in accordance with the terms
of the Intercreditor Agreement and deliver to the Pledgee, for the benefit of
itself, the other Secured Parties and the Administrative Agent in accordance
with the terms of the Intercreditor Agreement, certificates or instruments
therefor, endorsed in blank by such Pledgor or accompanied by undated stock
powers or instruments of transfer, in each case, duly executed in blank by such
Pledgor, and will promptly thereafter deliver to the Pledgee, for the benefit of
itself, the other Secured Parties and the Administrative Agent in accordance
with the terms of the Intercreditor Agreement, a certificate (which shall be
deemed to supplement Annex A attached hereto of such Pledgor) executed by such
Pledgor describing such Pledged Collateral and the other Pledged Collateral
pledged to the Pledgee, and certifying that the same have been duly pledged with
the Pledgee hereunder. If any Capital Stock does not constitute any such
additional Pledged Collateral but instead constitutes Excluded Capital Stock
that is evidenced by certificates, then such Pledgor shall concurrently promptly
thereafter deposit with the Pledgee, (x) for the benefit of the Administrative
Agent (and not any
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Secured Party), in accordance with the terms of the Intercreditor Agreement and
(y) on behalf of such Pledgor, such Excluded Capital Stock owned by such Pledgor
on the date hereof and the certificates representing such Excluded Capital Stock
endorsed in blank by such Pledgor or accompanied by undated stock powers or
instruments of transfer, in each case, duly executed in blank by such Pledgor.
For the avoidance of doubt, if any certificate or instrument representing any
such additional Pledged Collateral also represents any Excluded Capital Stock,
the Lien created hereunder shall only attach to the Capital Stock evidenced
thereby to the extent such Capital Stock does not constitute Excluded Capital
Stock.
(iii) Whether or not such additional Pledged Collateral is evidenced by
certificates, such Pledgor shall, and hereby authorizes the Pledgee to, file a
Code Financing Statement naming such Pledgor as debtor and the Pledgee as
secured party with respect to the additional Collateral in the applicable filing
office and in such form and containing such substance as may be necessary to
perfect the security interest of the Pledgee in the additional Collateral by the
filing of a Code Financing Statement; provided, however, that no such
authorization shall obligate the Pledgee to make any such filing.
3.3 Uncertificated Pledged Collateral. In addition to anything contained
in Sections 3.1 and 3.2 hereof, if any Pledged Collateral (whether now owned or
hereafter acquired) is not certificated or becomes an uncertificated security,
the applicable Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required to perfect or improve the perfection of the
security interest and pledge in favor of the Pledgee under applicable law
(including, in any event, any action required or appropriate under this
Agreement or the Code). Such Pledgor further agrees to take such actions as may
be necessary to permit the Pledgee to exercise any of its rights and remedies
hereunder.
4. VOTING, ETC. Until the occurrence and continuance of an Event of
Default, each Pledgor shall be entitled to vote any and all of the Pledged
Collateral and the Excluded Capital Stock; provided, however, that no vote shall
be cast or any action taken by such Pledgor with respect to any Pledged
Collateral or Excluded Capital Stock which would violate or be materially
inconsistent with any of the terms of this Agreement, the Indenture, any other
Indenture Document, or which would have the effect of materially impairing the
position or interests of the Pledgee or which would authorize or effect actions
prohibited under the terms of the Indenture or any Indenture Document. All such
rights of such Pledgor to vote any Pledged Collateral shall cease upon the
occurrence and during the continuance of an Event of Default, if the Pledgee so
directs and provides notice to such Pledgor to do so; provided, however, that
upon the cure or waiver of such Event of Default, all rights of the Pledgee to
vote any and all of the Pledged Collateral shall cease. Upon the giving of any
such notice by the Pledgee, such Pledgor shall retain the right to exercise all
voting and other consensual rights relating to all Excluded Capital Stock
applicable to it so long as it exercises any such voting or other consensual
right in a manner identical to the exercise by the Pledgee of any such voting or
other consensual right of the Capital Stock (of the Issuer of such Excluded
Capital Stock) constituting Pledged Collateral applicable to such Pledgor.
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5. PAYMENTS AND OTHER DISTRIBUTIONS. Until the occurrence and continuance
of an Event of Default and subject in all cases to the Intercreditor Agreement,
all cash, dividends or distributions payable in respect of the Pledged
Collateral (to the extent such payments shall be permitted pursuant to the terms
and provisions of the Indenture) shall be paid to the applicable Pledgor;
provided, however, upon the occurrence and during the continuance of an Event of
Default, all cash, dividends or distributions payable in respect of the Pledged
Collateral shall be paid to the Pledgee as security for the Obligations if the
Pledgee so directs and provides notice to such Pledgor to that effect (it being
understood and agreed that such Pledgor shall retain the right, whether an Event
of Default is outstanding, to receive all cash, dividends or distributions
payable in respect of the Excluded Capital Stock so long as the cash, dividends
or distributions payable in respect of the Excluded Capital Stock are made on a
pro rata basis with the Capital Stock (of the Issuer of such Excluded Capital
Stock) that constitute Pledged Collateral applicable to such Pledgor); provided
further, that upon the cure or waiver of such Event of Default, all cash
dividends or distributions payable in respect of the Pledged Collateral shall be
paid to such Pledgor. The Pledgee shall be entitled to receive directly, and to
retain as part of the Collateral:
(a) all other or additional securities or investment property, or
rights to subscribe for or purchase any of the foregoing, or property
(other than cash) paid or distributed by way of dividend in respect of the
Pledged Collateral (excluding any of the foregoing items in the preceding
clause with respect to an Issuer to the extent and only to the extent that
their inclusion would cause (i) the number of shares or units, as the case
may be, of such other or additional securities or investment property
pledged hereunder to exceed the Designated Number or (ii) such other or
additional securities or investment property to constitute Excluded
Capital Stock, in each case, after giving effect to such issuances); and
(b) all other or additional securities, investment property or
property (including cash) paid or distributed in respect of the Pledged
Collateral by way of split, spin-off, split-up, reclassification,
combination of shares or similar rearrangement (excluding any of the
foregoing items in the preceding clause with respect to an Issuer to the
extent and only to the extent that their inclusion would cause (i) the
number of shares or units, as the case may be, of Capital Stock pledged
hereunder to exceed the Designated Number or (ii) such other or additional
securities or investment property to constitute Excluded Capital Stock, in
each case, after giving effect to such issuances).
Subject to the Intercreditor Agreement, if at any time any Pledgor shall
obtain or possess any of the foregoing Collateral described in this Section,
such Pledgor shall be deemed to hold such Collateral in trust for the Pledgee
for the benefit of the Pledgee and the other Secured Parties, and such Pledgor
shall promptly surrender and deliver such Collateral to the Pledgee.
6. REMEDIES IN CASE OF AN EVENT OF DEFAULT. (i) Subject to the
Intercreditor Agreement, upon the occurrence and during the continuance of an
Event of Default, the Pledgee shall be entitled to exercise all of the rights,
powers and remedies (whether vested in it by this Agreement, the Indenture, any
other Indenture Documents, and/or in equity or by law,
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and including, without limitation, all rights and remedies of a secured party of
a debtor in default under the Code) for the protection and enforcement of its
rights in respect of the Pledged Collateral, and to the fullest extent permitted
by applicable law, the Pledgee shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(a) to receive all amounts payable to such Pledgor in respect of the
Pledged Collateral in accordance with Section 5 hereof;
(b) to transfer all or any part of the Pledged Collateral into the
Pledgee's name or the name of its nominee or nominees for the benefit of
the Pledgee and the other Secured Parties;
(c) to vote all or any part of the Pledged Collateral and otherwise
act with respect thereto as though it were the outright owner thereof in
accordance with Section 4 hereof;
(d) at any time or from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Pledged Collateral in
one or more parcels, or any interest therein, at any public or private
sale at any exchange, broker's board or at any of the Pledgee's offices or
elsewhere, without demand of performance, advertisement or notice of
intention to sell or of time or place of sale or adjournment thereof or to
redeem (all of which, except as may be required by mandatory provisions of
applicable law, are hereby expressly and irrevocably waived by such
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 Pledgee in its commercially reasonable
judgment may determine. Such Pledgor agrees that to the extent that notice
of sale shall be required by law that at least ten (10) calendar days'
notice to such Pledgor of the time (which shall be during normal business
hours) and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Pledgee
shall not be obligated to make any sale of Pledged Collateral regardless
of notice of sale having been given. The Pledgee may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and any such sale may, without further notice, be made at the
time and place to which it was so adjourned. Such Pledgor hereby waives
and releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Pledged Collateral, whether before or after
sale hereunder, and all rights, if any of marshalling the Pledged
Collateral and any other security for the Obligations or otherwise. At any
such sale, unless prohibited by applicable law, the Pledgee may bid for
and purchase all or any part of the Pledged Collateral so sold free from
any such right or equity of redemption. Neither the Pledgee nor any of the
other Secured Parties shall be liable for failure to collect or realize
upon any or all of the Pledged Collateral or for any delay in so doing nor
shall the Pledgee nor any of the other Secured Parties be under any
obligation to take any action whatsoever with regard thereto;
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(e) to settle, adjust, compromise and arrange all accounts,
controversies, questions, claims and demands whatsoever in relation to all
or any part of the Pledged Collateral;
(f) in respect of the Pledged Collateral, to execute all such
contracts, agreements, deeds, documents and instruments, to bring, defend
and abandon all such actions, suits and proceedings, and to take all
actions in relation to all or any part of the Pledged Collateral as the
Pledgee in its reasonable discretion may determine;
(g) to appoint managers, sub-agents, officers and servants for any
of the purposes mentioned in the foregoing provisions of this Section and
to dismiss the same, all as the Pledgee in its reasonable discretion may
determine; and
(h) generally, to take all such other action as the Pledgee in its
reasonable discretion may determine as incidental or conducive to any of
the matters or powers mentioned in the foregoing provisions of this
Section and which the Pledgee may or can do lawfully and to use the name
of such Pledgor for the purposes aforesaid and in any proceedings arising
therefrom.
(ii) During the continuance of any Event of Default, each Pledgor shall
retain the right to exercise all voting and other consensual rights relating to
all Excluded Capital Stock applicable to it so long as it exercises any such
voting or other consensual right in a manner identical to the exercise by the
Pledgee of any such voting or other consensual right of the Capital Stock (of
the Issuer of such Excluded Capital Stock) constituting Pledged Collateral
applicable to such Pledgor and (ii) receive and retain all cash, dividends and
distributions that it would otherwise be entitled to exercise or receive and
retain in respect of the Excluded Capital Stock applicable to it to the extent,
and solely to the extent, that such cash, dividends and distributions are made
on a pro rata basis with the Capital Stock (of the Issuer of such Excluded
Capital Stock) that constitute Pledged Collateral applicable to such Pledgor.
7. REMEDIES, ETC., CUMULATIVE. (a) Each right, power and remedy of the
Pledgee (for the benefit of the Pledgee and the other Secured Parties) provided
for in this Agreement, the Indenture, any Indenture Document or any other
security agreement, mortgage, guaranty or 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 Pledgee (for the benefit of the Pledgee and the other Secured
Parties) of any one or more of the rights, powers or remedies provided for in
this Agreement, the Indenture, or any other Indenture Document or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
to exercise any such right, power or remedy shall operate as a waiver thereof.
(b) Each Pledgor authorizes the Pledgee to sell all or any portion of the
Excluded Capital Stock together with all of the Pledged Interests of the Issuer
of such Excluded Capital Stock to the same extent as it is permitted to
authorize the sale of the Pledged Interests hereunder
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without any liability thereto or any duty owed thereby other than as otherwise
expressly required hereunder with respect to such Pledged Interests in the same
sale and on the same terms and for the same consideration as provided in such
sale of the Pledged Interests and at the same price per share or unit of Pledged
Interest as the Excluded Capital Stock; provided that the Pledgee shall promptly
upon receipt of such consideration turn over to such Pledgor (after deducting a
pro rata portion of the costs and expenses incurred in connection with such
sale) the proceeds of such sale relating to the Excluded Capital Stock so sold,
together with a copy of any instruments or other documentation evidencing such
share and an accounting of the costs and expenses applied thereto. Each Pledgor
agrees that the foregoing provisions of this Section 9 shall apply to such
Excluded Capital Stock as if such Excluded Capital Stock were Pledged Interests,
subject to the immediately preceding sentence, the last sentence of Section 4
and Section 6(ii).
8. APPLICATION OF PROCEEDS. Subject to any mandatory requirements of
applicable law and the terms of the Indenture and the Intercreditor Agreement,
all moneys collected by the Pledgee (for the benefit of the Pledgee and the
other Secured Parties) upon sale or other disposition of the Collateral,
together with all other moneys received by the Pledgee hereunder, shall be
turned over to the Trustee for distribution in accordance with Section 6.10 of
the Indenture.
9. INDEMNITY. Without duplication of any amounts payable under any other
similar indemnity provision set forth in the Indenture or any other Indenture
Documents, each Pledgor shall, jointly and severally: (i) pay all out-of-pocket
costs and expenses of the Pledgee incurred in connection with the administration
of and in connection with the preservation of rights under, and enforcement of,
and any renegotiation or restructuring of this Agreement and any amendment,
waiver or consent relating thereto (including, without limitation, the
reasonable fees and disbursements of counsel for the Pledgee); (ii) pay and hold
the Pledgee and the other Secured Parties harmless from and against any and all
present and future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to
this Agreement and save the Pledgee and the other Secured Parties harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission to pay any such taxes, charges or levies; and (iii) indemnify the
Pledgee and each of the other Secured Parties, and each of their respective
officers, directors, shareholders, employees, representatives and agents from
and hold each of them harmless against any and all costs, losses, liabilities,
claims, obligations, suits, penalties, judgments, damages or expenses incurred
by or asserted against any of them (whether or not any of them is designated a
party thereto) arising out of or by reason of this Agreement or any transaction
contemplated hereby (including, without limitation, any investigation,
litigation or other proceeding related to this Agreement), including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding.
Notwithstanding anything in this Agreement to the contrary, such Pledgor shall
not be responsible to the Pledgee or any other Secured Party for any costs,
losses, damages, liabilities or expenses which result from the gross negligence
or willful misconduct on the part of such Pledgee or any other Secured Party.
Each Pledgor's obligations under this Section shall survive any termination of
this Agreement.
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10. FURTHER ASSURANCES. (a) Each Pledgor agrees that, at any time and from
time to time, such Pledgor will join with the Pledgee in executing and, at such
Pledgor's own expense, will file and refile under the Code such financing
statements, continuation statements and other documents in such offices as may
be necessary and wherever required or permitted by law in order to perfect and
preserve the Pledgee's security interest in the Collateral, and hereby
authorizes the Pledgee to file financing statements and amendments thereto
relative to all or any part of the Collateral (provided, however, that no such
authorization shall obligate the Pledgee to make any such filing), and agrees to
do such further acts and things and to promptly execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and instruments as
may be required to carry into effect the purpose of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) In addition, Pledgee shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral and
Excluded Capital Stock for certificates or instruments of smaller or larger
denominations or for certificates or instruments separately evidencing Capital
Stock constituting Pledged Collateral and Capital Stock constituting Excluded
Capital Stock.
11. REASONABLE CARE BY PLEDGEE. The Pledgee shall be deemed by each
Pledgor to have exercised reasonable care in the custody and preservation of the
Collateral and the Excluded Capital Stock in its possession if the Collateral
and the Excluded Capital Stock is accorded treatment substantially equal to that
which the Pledgee accords its own similar property.
12. TRANSFER BY EACH PLEDGOR. Except as otherwise permitted under the
Indenture, if at all, the Pledgor shall not Dispose of, grant any option with
respect to, or pledge or otherwise encumber any of the Collateral, any Excluded
Capital Stock or any interest therein.
13. REPRESENTATIONS AND WARRANTIES OF EACH PLEDGOR. Each Pledgor hereby
represents and warrants to the Pledgee for the benefit of the Pledgee and the
other Secured Parties, which representations and warranties shall survive the
execution and delivery of this Agreement, as follows:
13.1 Validity, Perfection and Priority. (a) The pledge and security
interests in the Pledged Collateral granted to the Pledgee constitute valid and
continuing security interests in the Pledged Collateral.
(b) Subject to the Intercreditor Agreement, the security interests in the
Collateral granted to the Pledgee for the benefit of itself, the other Secured
Parties and the Administrative Agent hereunder and under the Credit Agreement
Pledge Agreement constitute valid and perfected security interests therein
superior and prior to the rights or claims of any other person or entity
therein.
13.2 No Liens; Other Financing Statements.
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(a) Such Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Pledged Collateral.
(b) Except for any filing made by the Administrative Agent, no financing
statement or other evidence of lien covering or purporting to cover any of the
Pledged Collateral is on file in any public office.
13.3 Pledged Collateral.
(a) The Pledged Collateral described in Annex A attached hereto of such
Pledgor is, and all other Pledged Collateral in which such Pledgor shall
hereafter xxxxx x xxxx or security interest pursuant to Section 2 hereof will
be, duly authorized, validly issued, and fully paid, and, except for the pledge
provided in Section 3.1 hereof in favor of Pledgee and in the Credit Agreement
Pledge Agreement in favor of the Administrative Agent, none of such Pledged
Collateral is or will be subject to any legal or contractual restriction. The
Pledged Collateral is, as of the date hereof, and shall be at all times
hereafter during the term of this Agreement, freely transferable without
restriction or limitation (except as limited by the terms of this Agreement).
(b) The Pledged Collateral described in Annex A hereto of such Pledgor
constitutes all of the issued and outstanding securities and investment property
legally and beneficially owned by such Pledgor on the date hereof in or relating
to each of the Issuers.
13.4 Power and Authority. Such Pledgor has the power and authority to
pledge and collaterally assign all of the Pledged Collateral pursuant to this
Agreement.
13.5 Article 8 Securities. The Pledged Interests that are Capital Stock in
general partnerships, limited partnerships or limited liability companies (i)
are not dealt in or traded on securities exchanges or in securities markets,
(ii) do not have terms expressly providing that they are securities governed by
Article 8 of the Code, and (iii) are not investment company securities, and are
not, therefore, "securities" governed by Article 8 of the Code.
13.6 Litigation. There are no actions, suits or proceedings pending or, to
such Pledgor's best knowledge, threatened against or involving such Pledgor
before any court with respect to any of the transactions contemplated by this
Agreement or the ability of such Pledgor to perform any of the obligations of
such Pledgor hereunder.
13.7 State of Organization. Such Pledgor's state of organization is
specified on Annex A of such Pledgor.
13.8 Continued Existence. Upon any transfer of the Pledged Collateral to
any Person as permitted upon the occurrence and during the continuance of an
Event of Default in accordance with Section 6 hereof, each of the Issuers shall
continue in existence.
13.9 Neither the pledge of the Pledged Collateral pursuant to this
Agreement nor the extensions of credit represented by the Obligations violates
Regulation T, U or X of the Board of Governors of the Federal Reserve System.
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13.10 Each direct Subsidiary of such Pledgor is an Issuer of Pledged
Interests that have been pledged hereunder.
14. COVENANTS OF EACH PLEDGOR. Each Pledgor covenants and agrees with the
Pledgee that on and after the date hereof and until all of the Obligations shall
have been paid and performed in full (other than contingent indemnification
obligations) or the Defeasance thereof shall have been consummated and this
Agreement terminates in accordance with its terms:
14.1 Collateral. (a) Such Pledgor will use its commercially reasonable
efforts to defend the Pledgee's right, title and security interest in and to the
Collateral against the claims and demands of all Persons whomsoever; (b) such
Pledgor will have good and marketable title to and right to pledge any other
property at any time hereafter constituting Collateral and will likewise use its
commercially reasonable efforts to defend the right thereto and security
interest therein of the Pledgee; and (c) such Pledgor will not, with respect to
any Pledged Collateral, enter into any shareholder type agreements, voting
agreements, voting trusts, trust deeds, irrevocable proxies or any other similar
agreements or instruments, other than any shareholder type agreements, voting
agreements, voting trusts, trust deeds, irrevocable proxies or any other similar
agreements or instruments which would not (x) be inconsistent with the terms of
this Agreement, (y) materially and adversely affect the Pledgee's interest in
any of the Pledged Collateral or (z) have a Material Adverse Effect.
14.2 Right of Inspection. To the extent permitted in Section 2.6 of the
Security Agreement, the Pledgee and its representatives shall have access to all
the books, correspondence and records of such Pledgor relating to the
Collateral, if any, and the Pledgee and its representatives may examine the
same, take extracts therefrom and make photocopies thereof.
14.3 Compliance with Laws. Such Pledgor will comply with all requirements
of law applicable to the Pledged Collateral or any part thereof, except where
the failure to comply could not reasonably be expected to have a Material
Adverse Effect.
14.4 Non-Pro Rata Dividends. To the extent it may lawfully do so, such
Pledgor shall use its best efforts to prevent the Issuers from issuing Future
Rights, cash, dividends and any other distributions unless made on a pro rata
basis between Capital Stock of such Issuers constituting Pledged Interests and
Excluded Capital Stock.
14.5 No Impairment. Such Pledgor will not take or permit to be taken any
action which could materially impair the Pledgee's rights in the Pledged
Collateral. Such Pledgor will not create, incur or permit to exist, will use its
commercially reasonable efforts to defend the Pledged Collateral against and
will take such other action as is necessary to remove, any lien or claim on or
to the Pledged Collateral, other than the liens created hereby and liens in
favor of the Administrative Agent in accordance with the Intercreditor
Agreement, and will use its commercially reasonable efforts to defend the right,
title and interest of the Pledgee in and to any of the Pledged Collateral
against the claims and demands of all Persons whomsoever.
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14.6 Performance by Pledgee of Such Pledgor's Obligations. If such Pledgor
fails to perform or comply with any of the agreements contained herein, the
Pledgee may, upon the occurrence and during the continuance of an Event of
Default, without notice to or consent by such Pledgor, perform or comply or
cause performance or compliance therewith; provided, however, the Pledgee shall
not be under any obligation to taken any such action.
14.7 Further Identification of Pledged Collateral. Such Pledgor will
furnish to the Pledgee from time to time such reports in connection with the
Pledged Collateral as the Pledgee may reasonably request from time to time.
14.8 Continuous Perfection. No Pledgor will change its name,
organizational identification number, state of organization or organizational
identity unless such Pledgor shall within ten Business Days of any such change
provide written notice to the Pledgee of such change and file any financing
statements or amendments thereto necessary to continue the perfection of the
Liens of the Pledgee on the Collateral.
14.9 Stay or Extension Laws. Such Pledgor will not at any time claim,
take, insist upon or invoke the benefit or advantage of or from any law now or
hereafter in force providing for the valuation or appraisement of the Pledged
Collateral prior to any sale or sales thereof to be made pursuant to the
provisions hereof or pursuant to the decree, judgment, or order of any court of
competent jurisdiction; nor, after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state to redeem
the property so sold or any part thereof, and such Pledgor hereby expressly
waives (to the extent not prohibited by applicable law), on behalf of such
Pledgor and each and every person or entity claiming by, through and under such
Pledgor, all benefit and advantage of any such law or laws, and covenants that
such Pledgor will not invoke or utilize any such law or laws or otherwise
hinder, delay or impede the execution of any power, right or remedy herein or
hereby granted and delegated to the Pledgee, but will authorize, allow and
permit the execution of every such power, right or remedy as though no such law
or laws had been made or enacted.
14.10 The Issuers' Records. Such Pledgor shall cause each of the Issuers
to make a notation on its respective records indicating the interest granted
hereby in favor of the Pledgee.
15. EACH PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional in accordance
with its terms and shall remain in full force and effect (except as otherwise
provided herein under Section 19) 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 change in the
time, place or manner of payment of, or in any other term of, all or any of the
Obligations, any waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or any
other action or inaction under or in respect of this Agreement, the Indenture or
any other Indenture Document, or any of the other documents, instruments or
agreements relating to the Obligations or any other instrument or agreement
referred to therein or any assignment or transfer of any thereof; (b) any lack
of validity or enforceability of the Indenture, or any other Indenture Document,
or any other
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documents, instruments or agreement referred to therein or any assignment or
transfer of any thereof; (c) any furnishing of any additional security or
collateral to the Pledgee, for the benefit of the Pledgee and/or the other
Secured Parties; or its assignees or any acceptance thereof or any release of
any security by the Pledgee or its assignees; (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; (e) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to such Pledgor or any other Person, as applicable, 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; (f) any exchange, release or nonperfection of any other
collateral, or any release, or amendment or waiver of or consent to departure
from any guaranty or security, for all or any of the Obligations; or (g) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, such Pledgor.
16. NOTICES, ETC. Except as otherwise expressly provided herein, any
notice required or desired to be served, given or delivered hereunder shall be
in the form and manner, and shall be addressed to the parties set forth in the
Indenture.
17. POWER OF ATTORNEY. Each Pledgor hereby absolutely and irrevocably
constitutes and appoints the Pledgee for the benefit of the Pledgee and the
other Secured Parties as such Pledgor's true and lawful agent and
attorney-in-fact with full power of substitution, in the name of such Pledgor
upon the occurrence and during the continuance of an Event of Default: (a) to
execute and do all such assurances, acts and things which such Pledgor ought to
do but has failed to do under the covenants and provisions contained in this
Agreement; (b) to take any and all such action as may be necessary for the
purpose of maintaining preserving or protecting the security constituted by this
Agreement or any of the rights, remedies, powers or privileges of the Pledgee
under this Agreement; and (c) generally, in the name of such Pledgor, exercise
all or any of the powers, authorities, and discretions conferred on or reserved
to the Pledgee by or pursuant to this Agreement, and (without prejudice to the
generality of any of the foregoing) to deliver or otherwise perfect any deed,
assurance, agreement, instrument or act as may be proper in or for the purpose
of exercising any of such powers, authorities or discretions. Such Pledgor
hereby ratifies and confirms, and hereby agrees to ratify and confirm, whatever
lawful acts the Pledgee or any of the Pledgee's sub-agents or attorneys shall do
or purport to do in the exercise of the power of attorney granted to the Pledgee
pursuant to this Section, which power of attorney, being coupled with an
interest and given for security, is irrevocable; provided, however, that such
Pledgor neither ratifies nor confirms any acts of the Pledgee or any of the
Pledgee's sub-agents or attorneys do in the exercise of this power of attorney
if such acts constitute the negligence, bad faith or willful misconduct of such
Person.
18. MISCELLANEOUS. Each Pledgor agrees with the Pledgee that each of the
obligations and liabilities of such Pledgor to the Pledgee under this Agreement
may be enforced against such Pledgor without the necessity of joining any other
Person as a party. This Agreement shall create a continuing security interest in
the Pledged Collateral and shall be binding upon the heirs and legal
beneficiaries, and permitted successors and assigns, of such
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Pledgor, as applicable, and shall inure to the benefit of and be enforceable by
the Pledgee and its successors and assigns; provided, however, that no party may
assign this Agreement or any rights or duties hereunder other than pursuant to
the terms of the Indenture. Unless otherwise defined herein, terms defined in
the Code are used herein as therein defined. The headings and titles in this
Agreement are for convenience 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. If 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. No Pledgor shall have any right of subrogation as to any of the Pledged
Collateral until full and complete performance and payment of the Obligations
(other than contingent indemnification obligations) or the Defeasance thereof. A
signature hereto distributed by facsimile or electronic mail shall be deemed to
be as legally binding as a signed original.
19. TERMINATION; RECOVERY CLAIM. This Agreement shall terminate after the
Obligations are paid in full (other than contingent indemnification obligations)
or the Defeasance thereof. Upon the termination of this Agreement, or as
otherwise provided in the Indenture, the Pledgee, at the request of any
applicable Pledgor and at the cost and expense of such Pledgor, will promptly
execute and deliver to such Pledgor the proper instruments acknowledging the
termination of this Agreement and the security interest and lien on the Pledged
Collateral created hereby and will duly assign, transfer and deliver to such
Pledgor or to whomsoever shall be lawfully entitled to receive the same (without
recourse and without any representation or warranty of any kind) such of the
Pledged Collateral and Excluded Capital Stock as may be in the possession of the
Pledgee and has not theretofore been sold or otherwise applied or released
pursuant to this Agreement. Should a claim ("Recovery Claim") be made upon the
Pledgee or any or all of the other Secured Parties at any time for recovery of
any amount received by the Pledgee or any or all of the other Secured Parties in
payment of the Obligations (whether received such Pledgor or otherwise) and
should the Pledgee or any or all of the other Secured Parties repay all or part
of said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Pledgee or any or all of the
other Secured Parties or any of their respective property; or (b) any settlement
or compromise of any such Recovery Claim effected by the Pledgee or any or all
of the other Secured Parties with the claimant (including, without limitation,
such Pledgor), this Agreement and the security interests granted to the Pledgee
for the benefit of the Pledgee and the other Secured Parties hereunder shall
continue in effect with respect to the amount so repaid to the same extent as if
such amount had never originally been received by the Pledgee or any or all of
the other Secured Parties, notwithstanding any prior termination of this
Agreement, the return of this Agreement to such Pledgor, or the cancellation of
any note or other instrument evidencing the Obligations.
20. AMENDMENTS; MARSHALLING, ETC. (a) None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by such Pledgor and the Pledgee.
Notwithstanding the foregoing, the parties hereto agree that in the event that
Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or
interpreted by the SEC to require (or is replaced with another rule or
regulation, or any other law, rule or regulation is adopted, which would
require)
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the filing with the SEC of separate financial statements of any Issuer whose
Capital Stock constitute Pledged Collateral, the term "Excluded Capital Stock"
shall be deemed amended (without further action or consent by any Pledgor, the
Pledgee, the Trustee or any Noteholder) to the extent, and only to the extent,
necessary to avoid the requirement of filing with the SEC of such separate
audited financial statements of such Issuer, and for the avoidance of doubt,
Pledged Interests shall not include any Excluded Capital Stock as amended.
(b) The Pledgee shall be under no obligation to marshal any assets or
collateral in favor of such Pledgor or any other person or entity or against or
in payment of any or all of the Obligations. All indemnities set forth herein
shall survive the execution and delivery of this Agreement and the making and
repayment of the Obligations or the Defeasance thereof. The Secured Parties
(other than the Pledgee) are the intended third party beneficiaries of this
Agreement.
21. REVIEW OF AGREEMENT BY EACH PLEDGOR. Each Pledgor acknowledges that
such Pledgor has thoroughly read and reviewed the terms and provisions of this
Agreement, and that such terms and provisions are clearly understood by such
Pledgor, and has been fully and unconditionally consented to by such Pledgor
with the full benefit and advice of counsel chosen by such Pledgor, and that
such Pledgor has freely and voluntarily signed this Agreement without duress.
22. WAIVER OF CLAIMS. Except as otherwise provided in this Agreement or
prohibited by law, EACH PLEDGOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE PLEDGEE'S
TAKING POSSESSION OR SALE OR THE PLEDGEE'S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH PLEDGOR WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF
ANY STATE, and each Pledgor hereby further waives (and releases any cause of
action and claim against the Pledgee as a result of), to the fullest extent
permitted by law: (a) all damages occasioned by such taking of possession,
collection or sale except any damages which are the direct result of the
Pledgee's gross negligence or willful misconduct; (b) all other requirements as
to the time, place and terms of sale or other requirements with respect to the
enforcement of the Pledgee's rights hereunder; (c) demand of performance or
other demand, notice of intent to demand or accelerate, notice of acceleration,
presentment, protest, advertisement or notice of any kind to or upon such
Pledgor or any other person or entity; and (d) all rights of redemption,
appraisement, valuation, diligence, stay, extension or moratorium now or
hereafter in force under any applicable law in order to delay the enforcement of
this Agreement.
23. REVIVAL AND REINSTATEMENT OF OBLIGATIONS. If the incurrence or payment
of the Obligations by any Pledgor or the transfer by any Pledgor to the Pledgee
of any property of such Pledgor should for any reason subsequently be declared
to be void or voidable under any state or federal law relating to creditors'
rights, including provisions of the Bankruptcy Code relating to
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fraudulent conveyances, preferences, or other voidable or recoverable payments
of money or transfers of property (collectively, a "Voidable Transfer"), and if
the Pledgee is required to repay or restore, in whole or in part, any such
Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that the Pledgee
is required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys fees of the Pledgee related thereto, the liability of
such Pledgor automatically shall be revived, reinstated, and restored and shall
exist as though such Voidable Transfer had never been made.
24. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
25. WAIVER OF TRIAL BY JURY. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
26. INTEGRATION. This Agreement, together with the other Indenture
Documents, reflects the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, before the date hereof.
27. Intercreditor Agreement.
(a) The Liens granted hereunder in favor of the Pledgee for the benefit of
itself and the other Secured Parties in respect of the 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
PLEDGOR
VISKASE COMPANIES, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
PLEDGEE:
LASALLE BANK NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Xxxxxxxx X. Xxxxxx
Title: First Vice President
