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EXHIBIT 10.39
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of November 20, 1995 by and between All
American Fremantle, Inc., a Delaware corporation ("AAF" or "Pledgor"), and The
Interpublic Group of Companies, Inc., a Delaware corporation ("IPG"), is being
entered into pursuant to that certain Intercreditor Agreement, dated as of
October 6, 1995, among Chemical Bank, for itself and as agent for the Lenders
(the "Agent"), IPG, All American Xxxxxxx, Inc., a Delaware corporation ("AAG"),
All American Communications, Inc., a Delaware Corporation ("AACI"), All
American Television II, Inc., a Delaware corporation ("AATVII"), All American
Fremantle II, Inc., a Delaware corporation ("AAFII"), and Xxxx Xxxxxxx
Productions, LLC, a New York limited liability company ("LLC") (the
"Intercreditor Agreement"). Unless otherwise defined herein, terms defined in
the Intercreditor Agreement are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, the LLC, IPG and AACI have entered into an Asset Purchase
Agreement (the "Asset Purchase Agreement"), dated as of October 6, 1995, with
Xxxx Xxxxxxx Productions, L.P., The Child's Play Company (together the
"Sellers") and certain other parties pursuant to which the LLC and IPG
purchased certain of the assets and the LLC assumed certain liabilities of the
Sellers;
WHEREAS, the LLC and AAG have entered into a License Agreement (the "Main
License Agreement"), dated as of October 6, 1995, with respect to the
exploitation of the Library Rights, Library Physical Properties, Programs (as
each of the foregoing terms is defined in the Main License Agreement) or
portions thereof or rights therein acquired pursuant to the Asset Purchase
Agreement, including, without limitation, the right to sublicense to third
parties the rights granted in the Main License Agreement;
WHEREAS, AACI, AAG, IPG and Infoplan International, Inc. ("Infoplan") have
entered into an Amended and Restated Operating Agreement (the "Operating
Agreement"), dated as of October 6, 1995, in connection with the operations of
the LLC which Operating Agreement became effective immediately after the Final
Closing (as defined in the Asset Purchase Agreement);
WHEREAS, IPG, Infoplan, Interpublic Game Shows, Inc., a Delaware
corporation, AACI, AAG, AAFII, AATVII and the LLC have entered into a letter
agreement (the "Letter Agreement"), dated as of October 6, 1995, in connection
with certain matters arising under the Asset Purchase Agreement, the Main
License Agreement and the Operating Agreement;
WHEREAS, each of AAG, AATVII and AAFII (each, a "Guarantor" and
collectively, the "Guarantors") have entered into a Guaranty (each, a
"Guaranty" and collectively the "Guaranties"), dated as of the date hereof, in
favor of IPG guaranteeing certain obligations of the Guarantors;
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WHEREAS, each of AAG, AATVII and AAFII have entered into a Security
Agreement (the "Security Agreements"), dated as of the date hereof, in favor
of IPG;
WHEREAS, each of AACI, AAG and All American Television, Inc. a Delaware
corporation ("AAT"), have entered into a Pledge Agreement (together with this
Agreement, the "Pledge Agreements"), dated as of the date hereof, in favor of
IPG, substantially in the form of this Agreement;
WHEREAS, the parties hereto desire to enter into this Pledge Agreement
(this "Agreement") wherein Pledgor has agreed to grant a perfected subordinated
security interest in all issued and outstanding shares of capital stock in
AATVII; and
WHEREAS, pursuant to the Intercreditor Agreement, Pledgor's security
interest in the Pledged Shares (as defined below) shall be subordinate to the
Senior Obligations until such time as the Senior Obligations have been paid and
performed in full and following the payment and performance in full of the
Senior Obligations, the security interest shall be senior to all other
obligations of Pledgor;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions; Interpretation.
(a) In this Agreement, references to a Person include its successors and
assigns and references to a document are references to that document as
amended, novated or supplemented through the time such reference become
effective.
(b) The following terms shall have the following meanings (which shall be
applicable to both the singular and plural forms of the terms defined):
"Event of Default" shall have the meaning set forth in the Security
Agreement, dated the date hereof, by and between AAG and IPG.
"Secured Obligations" means the Parent Obligations as defined in the
Intercreditor Agreement.
2. Pledge. In order to secure the prompt payment and performance in full
of all of the Secured Obligations, Pledgor hereby pledges, assigns, grants a
security interest in, transfers and delivers unto IPG each of the following
(the "Collateral"):
(a) all of Pledgor's right, title and interest in and to all shares
of capital stock of AAFII (the "Company") (the "Pledged Shares") and the
certificates, if any, representing the Pledged Shares, and all dividends,
instruments and other property, other than cash dividends or
distributions, from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares;
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(b) all additional shares of capital stock of the Company (the
"Additional Shares") from time to time acquired by Pledgor in any manner
(including, without limitation, any shares of preferred stock issued by
any such issuer) and the certificates, if any, representing such
Additional Shares, and all dividends, instruments and other property,
other than cash dividends or distributions, from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of such Shares;
(c) all other rights appurtenant to the property described in
clauses (a) and (b) above; and
(d) all cash and noncash proceeds of the disposition of any and all
of the foregoing.
Pledgor hereby consents that, pursuant to Section 16 of the Intercreditor
Agreement, upon payment and performance in full of the Senior Obligations, the
Agent shall deliver the certificates representing the Pledged Shares and the
Additional Shares which have become Pledged Shares, if any, set forth on
Schedule I hereto, accompanied by proper instruments of assignment duly
executed in blank by the Pledgor, to IPG in New York City, New York.
Subject to the terms of the Intercreditor Agreement, promptly upon
Pledgor's acquisition of any Additional Shares and following the payment and
performance in full of the Senior Obligations, Pledgor will deliver to IPG (i)
proper instruments of assignment duly executed in blank by Pledgor together
with any certificates representing such Additional Shares, whereupon such
Additional Shares shall be Pledged Shares and (ii) an amendment to Schedule I
reflecting the addition of such Additional Shares, together with a signed
statement authorizing IPG to replace the prior Schedule I with such amendment
to Schedule I.
3. Representations and Warranties. Pledgor hereby represents and
warrants to IPG that as of the date hereof:
(a) Pledgor is the sole holder of record and sole beneficial owner
of the Pledged Shares set forth on Schedule I hereto, free and clear of
any pledge, hypothecation, assignment, lien, charge, claim, security
interest, option, preference, priority or other preferential arrangement
of any kind or nature whatsoever ("Lien") thereon or affecting the title
thereto; provided, however, that as of the date hereof the Pledged
Shares are subject to a Lien in favor of the Lenders under Tranche E of
the Credit Facility as provided in the Intercreditor Agreement (the
"Tranche E Lien") and under Tranches A through D of the Credit Facility
(the "Junior Lien"). The Tranche E Lien is superior to that of IPG to
the extent set forth in the Intercreditor Agreement but shall be fully
extinguished and discharged with the payment in full of the Senior
Obligations.
(b) The Pledged Shares have been duly authorized and validly issued
by each of the respective issuers set forth in Schedule I, are fully paid
and non-assessable, and
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constitute the respective percentages of the authorized and outstanding
shares of the capital stock of the Company referred to on Schedule I.
Pledgor has the right and all requisite corporate authority to pledge,
assign, grant a security interest in, transfer and deliver the Collateral
to IPG as provided herein.
(c) This Agreement has been duly authorized, executed and delivered
by Pledgor and constitutes the legal, valid and binding obligation of
Pledgor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity.
(d) No consent, approval, authorization or other order of any Person
other than as provided in or contemplated by the Intercreditor Agreement
is required for (i) the execution and delivery of this Agreement by
Pledgor or the delivery by Pledgor of the Collateral to IPG as provided
herein except as have been obtained, or (ii) the exercise by IPG of the
rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement, except as may be required in
connection with the disposition of the Collateral by laws affecting the
offering and sale of securities generally. To the best of Pledgor's
knowledge, none of the Pledged Shares has been issued or transferred in
violation of the securities registration, securities disclosure or
similar laws of any jurisdictions to which such issuance or transfer may
be subject.
(e) The chief executive office of Pledgor is located at the address
set forth in Section 15, and during the four months immediately preceding
the date hereof the chief executive office of Pledgor has not been
located elsewhere. Pledgor has no trade or other fictitious name.
(f) Upon the delivery to Chemical Bank of the certificates
representing the Pledged Shares, IPG will have a valid, perfected, second
priority security interest in the Pledged Shares subject to no prior lien
(other than, as of the date hereof, the Tranche E Lien).
(g) Upon the delivery to IPG by Chemical Bank of the certificates
representing the Pledged Shares and following the payment and performance
in full of the Senior Obligations, (i) IPG will have a valid, perfected,
first priority security interest in the Pledged Shares subject to no
prior Lien and (ii) Chemical Bank will have a valid, perfected, second
priority security interest in the Pledged Shares subject to no prior lien
(other than, as of the date thereof, IPG's Lien).
(h) The authorized, issued and outstanding capital shares of the
Company is set forth on Schedule I, and there are no existing options,
warrants, calls or commitments of any character whatsoever relating to
any of the unissued capital shares, or any securities convertible into or
exchangeable for such shares, of the Company, except as set forth on
Schedule I.
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(i) The Pledged Shares or the Additional Shares, as the case may be, are
and will be freely transferable and assignable (subject to applicable
securities laws), other than pursuant to the Operating Agreement.
The representations and warranties set forth in clauses (a), (b), (d)(ii),
(f), (g), (h) and (i) of this Section 3 shall be deemed to be reaffirmed on the
date of each delivery of Additional Shares to IPG. The representations and
warranties set forth in this Section 3 shall survive the execution and delivery
of this Agreement.
4. Rights of Pledgor. Unless an Event of Default shall have occurred and
be continuing:
(a) Subject to the Letter Agreement, Pledgor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Pledged Shares or any part thereof for any purpose not inconsistent with
the terms of this Agreement and the Intercreditor Agreement. Pledgor
shall not in any event exercise or refrain from exercising such right in
a manner which would (or take or omit to take any other action which
would) authorize or effect (i) the dissolution or liquidation, in whole
or in part, of the Company, (ii) the consolidation or merger of the
Company with any corporation or other entity unless the party to such
merger or consolidation agrees to assume the obligations hereunder and
under the Intercreditor Agreement, (iii) the sale, disposition or
encumbrance of any asset of the Company, except in the ordinary course of
business consistent with past practice or as permitted by the
Intercreditor Agreement, (iv) any change in the authorized number of
shares, the stated capital or the authorized share capital of the
Company, or the issuance of any additional capital shares of the Company
unless such Additional Shares are pledged to IPG to the extent required
herein, or (v) the alteration of the voting rights with respect to the
shares of the Company.
(b) Pledgor shall be entitled, from time to time, to collect and
receive for its own use all cash dividends and cash distributions (except
cash dividends paid or payable in respect of the total or partial
liquidation of an issuer) paid on the Pledged Shares. All stock
dividends and all distributions (other than cash distributions governed
by the immediately preceding sentence) in respect of any of the
Collateral, whenever paid or made after the payment in full of the Senior
Obligations, shall be delivered to IPG and held by it subject to the Lien
created by this Agreement.
5. Covenants. Pledgor covenants and agrees that until the termination of
this Agreement:
(a) Pledgor will not, without the prior written consent of IPG, (i)
sell, assign, transfer, mortgage, pledge or otherwise encumber any of its
rights in or to the Collateral or any dividends or other distributions or
payments with respect thereto (other than cash dividends and
distributions) or xxxxx x Xxxx on any thereof or (ii) cause or permit the
Company to issue any capital shares (or options, warrants, calls or
commitments of any character whatsoever relating to such shares, or any
securities convertible into or exchangeable for such shares) in addition
to or in substitution for the
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Pledged Shares except to the Agent and Pledgor as their respective
interests may appear.
(b) Pledgor will, at its own expense, execute, acknowledge and
deliver all such instruments and take all such action as IPG from time to
time may reasonably request in order to ensure to IPG the benefits of its
Lien on and to the Collateral intended to be created by this Agreement.
(c) Pledgor will defend the title to the Collateral and the Lien of
IPG thereon against the claim of any Person (other than against the
claims of the Agent in connection with the Senior Obligations) and will
maintain and preserve such Lien so long as this Agreement shall remain in
effect.
(d) Unless Pledgor shall have given IPG not less than 30 days' prior
notice thereof, Pledgor will not change its name, identity or corporate
structure in any manner or the location of its chief executive office.
6. Remedies. Subject to the terms of the Intercreditor Agreement:
(a) Upon the occurrence of an Event of Default, then or at any time
during the continuance thereof, IPG is hereby authorized and empowered,
at its election, (i) to transfer and register in its name, or in the name
of the nominee of IPG, the whole or any part of the Collateral, (ii) to
exercise all voting rights with respect thereto and (iii) to demand, xxx
for, collect, receive and give acquittance for any and all cash dividends
or other distributions or monies due or to become due upon or by virtue
thereof, and to settle, prosecute or defend any action or proceeding with
respect thereto, Pledgor hereby irrevocably constituting IPG as its proxy
and attorney-in-fact, with full power of substitution to do so.
(b) Upon the occurrence of an Event of Default, then or at any time
during the continuance of such occurrence, IPG is hereby further
authorized and empowered, at its election, (i) to sell in one or more
sales the whole or any part of the Collateral or otherwise to transfer or
assign the same, applying the proceeds therefrom to the payment of the
Secured Obligations in such order as IPG shall determine and (ii) to the
extent permitted by law, otherwise to act with respect to the Collateral
or the proceeds thereof as though IPG were the outright owner thereof,
Pledgor hereby irrevocably constituting IPG as its proxy and
attorney-in-fact, with full power of substitution to do so.
(c) IPG shall give Pledgor not less than ten days' prior written
notice of the time and place of any sale or other intended disposition of
any of the Collateral except any Collateral that is perishable or
threatens to decline speedily in value or is of a type customarily sold
on a recognized market. Pledgor agrees that such notice constitutes
"reasonable notification" within the meaning of Section 9-504 of the
Uniform Commercial Code. Any sale shall be made at a public or private
sale at IPG's place of business, or at any public building in The City of
New York to be named in the notice
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of sale, either for cash or upon credit or for future delivery at such
price as IPG may deem fair, and, to the extent permitted by applicable
law, IPG may be the purchaser of the whole or any part of the Collateral
so sold and hold the same thereafter in its own right free from any claim
of Pledgor or any right or equity of redemption, which right or equity is
hereby waived and released. Each sale shall be made to the highest
bidder, but IPG reserves the right to reject any and all bids at such
sale which, in its sole discretion, it shall deem inadequate. Except as
otherwise herein specifically provided for or required by applicable law,
demands of performance, notices of sale, advertisements and the presence
of property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer of agent of IPG.
(d) If, at the original time or times appointed for the sale of the
whole or any part of the Collateral, either (i) the highest bid, if there
be but one sale, shall be inadequate to discharge in full all of the
Secured Obligations, or (ii) if the Collateral be offered for sale in
lots, if at any of such sales the highest bid for the lot offered for
sale would indicate to IPG in its sole discretion the unlikelihood of the
proceeds of the sales of the whole of the Collateral being insufficient
to discharge all the Secured Obligations, then in either such event IPG
may, on one or more occasions, postpone any of said sales by public
announcement at the time of sale. In the event of any such postponement,
IPG shall give Pledgor notice of such postponement.
(e) If, at any time when IPG shall determine to exercise its right
to sell the whole or any part of the Collateral hereunder, such
Collateral or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Act, IPG may, in it sole
and absolute discretion (subject only to applicable requirements of law),
sell such Collateral or part thereof by private sale in such manner and
under such circumstances as IPG may deem necessary or advisable, but
subject to the other requirements of this Section 6, and shall not be
required to effect such registration or to cause the same to be effected.
Without limiting the generality of the foregoing, in any such event IPG
in its sole and absolute discretion may (i) proceed to make such private
sale notwithstanding that a registration statement for the purpose of
registering such Collateral or part thereof could be or shall have been
filed under the Act (or similar statute), (ii) approach and negotiate
with a single possible purchaser to effect such sale, (iii) restrict such
sale to a purchaser who will represent and agree that such purchaser is
purchasing for its own account, for investment and not with a view to the
distribution or sale of such Collateral or part thereof, and (iv) require
that any sale hereunder (including a sale at auction) be conducted
subject to restrictions (A) as to the financial sophistication and
ability of any Person permitted to bid or purchase at sale, (B) as to the
content of legends to be placed upon any certificates representing the
Collateral sold in such sale, including restrictions on future transfer
thereof, (C) as to the representations required to be made by each Person
bidding or purchasing at such sale relating to that Person's access to
financial information about Pledgor, any of the issuers of the Pledged
Shares, such Person's intentions as to the holding of the Collateral so
sold for investment, for its own account, and not with a view to the
distribution thereof, and (D) as to such other matters as IPG may, in its
sole discretion,
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deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Uniform Commercial Code (or similar applicable statutes) and other laws
affecting the enforcement of creditors' rights and the Act (or similar
statute) and all applicable state securities laws. Pledgor will execute
and deliver such documents and take such other action as the Agent deems
necessary or advisable in order that any such sale may be made in
compliance with law.
(f) Pledgor acknowledges that: (i) any sale under the circumstances
described in this Section 6 shall be deemed to have been held in a manner
which is commercially reasonable, and (ii) notwithstanding the legal
availability of a private sale or a sale subject to restrictions of the
character described above, IPG may, in it sole discretion, elect to seek
registration of the Collateral under the Act (or similar statute or any
applicable state securities laws) in accordance with its rights under
this Section 6. In the event of any such sale under the circumstances
described in this Section 6, IPG shall incur no responsibility or
liability for selling the whole or any part of the Collateral at a price
which IPG may deem reasonable under the circumstances, notwithstanding
the possibility that a substantially higher price might be realized if
the sales were deferred until after registration as aforesaid. Pledgor
hereby acknowledges that any sale of any of the Collateral which has not
been registered under the Act may be for a price less than that which
might have been obtained had the Collateral been registered under the
Act.
(g) Pledgor agrees that it will not at any time plead, claim or take
the benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Agreement, or the absolute sale of the whole or any
part of the Collateral or the possession thereof by any purchaser at any
sale hereunder, and Pledgor waives the benefit of all such laws to the
extent it lawfully may do so. Pledgor agrees that it will not interfere
with any right, power and remedy of IPG provided for in this Agreement or
now or hereafter existing at law or in equity or by statute or otherwise,
or the exercise or beginning of the exercise by IPG of any one or more
such rights, powers or remedies. No failure or delay on the part of IPG
to exercise any right, power or remedy, and no notice or demand which may
be given to or made upon Pledgor by IPG with respect to any such
remedies, shall operate as a waiver thereof, or limit or impair IPG's
right to take any action or to exercise any power or remedy hereunder
without notice or demand, or prejudice its rights as against Pledgor in
any respect.
7. Exoneration of IPG. Other than the exercise of reasonable care in the
custody and preservation of the Collateral in its possession or as required by
law, IPG shall have no duty toward Pledgor with respect to the Collateral. IPG
shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property, and
shall not be liable or responsible for any loss or damage to any of the
Collateral, or for any diminution in the value thereof, by reason of the act or
omission of any agent or
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bailee selected by IPG in good faith, except for losses or damages caused by
gross negligence or willful misconduct in the performance of a duty owed by
IPG.
8. No Waiver; Cumulative Remedies. IPG shall not by any act, delay,
omission or otherwise be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid unless in writing and signed by IPG,
and then only to the extent therein set forth. A waiver by IPG of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which IPG would otherwise have had on any future occasion. No
failure to exercise nor any delay in exercising on the part of IPG, any right,
power or privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or future exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies hereunder provided are cumulative and
may be exercised singly or concurrently, and are not exclusive of any rights
and remedies provided by law. None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except by an instrument
in writing, duly executed by IPG and the Pledgor.
9. Successors; Assignments and Transfers.
(a) This Agreement and all obligations of the Pledgor hereunder
shall be binding upon the successors and assigns of the Pledgor and
shall, together with the rights and remedies of IPG hereunder, inure to
the benefit of IPG and its respective successors and assigns. The
Pledgor shall not consent or agree to any assignments, transfers or other
dispositions of any agreement governing the Secured Obligations or any
portion thereof or interest therein that would adversely affect the
security interest granted to IPG hereunder.
(b) IPG may not assign and transfer all of its rights and
obligations under this Agreement to another person except in conjunction
with the transfer of its rights under the Operating Agreement, the Letter
Agreement or the Intercreditor Agreement.
10. Termination. At such time as there are no outstanding obligations
arising under any Guaranty then IPG shall deliver to the Agent the Collateral
at the time subject to this Agreement and all instruments of assignment
executed in connection therewith, free and clear of the Lien hereof and of any
other Liens (other than Liens granted in favor of the Agent) asserted through
IPG, and all of Pledgor's obligations hereunder shall thereupon terminate.
11. Release. No release or surrender any of the Collateral shall impair
IPG's rights hereunder, other than with respect to the particular Collateral so
released or surrendered.
12. Expenses. Pledgor agrees to reimburse IPG for all reasonable
expenses of, or incidental to the enforcement of any of the provisions of this
Agreement or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement of any of the Collateral and for the care
of the Collateral and defending or asserting the rights and claims of IPG in
respect of the Collateral, by litigation or otherwise, including but not
limited to
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expenses of insurance and the reasonable fees and expenses of counsel for IPG
for legal services of every kind. All such expenses shall be deemed additional
Secured Obligations.
13. GOVERNING LAW, ETC. THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS
OF LAWS THEREOF. PLEDGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT, IN EITHER CASE SITTING IN
THE CITY OF NEW YORK, BOROUGH OF MANHATTAN OVER ANY ACTION, SUIT OR OTHER
PROCEEDING BROUGHT BY ANY PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
AND PLEDGOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. PLEDGOR HEREBY
IRREVOCABLY APPOINTS XXXX, SCHOLER, FIERMAN, XXXX & HANDLER, 000 XXXX XXXXXX,
XXX XXXX, XXX XXXX 00000 (ATTENTION: XXXXXXX X. XXXXXXX), AS ITS AGENT TO
RECEIVE SERVICE OF SUMMONS, AND COMPLAINTS AND ANY OTHER PROCESS WHICH MAY BE
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING. NOTHING IN THIS AGREEMENT
SHALL, HOWEVER, BE DEEMED OR OPERATE TO PRECLUDE IPG FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE SECURED
OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE SECURED
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF IPG,
PROVIDED THAT IPG RECOGNIZES THAT ITS RIGHTS HEREUNDER ARE SUBJECT TO THE TERMS
AND CONDITIONS OF THE INTERCREDITOR AGREEMENT.
14. Further Assurances; Agent May Perform.
(a) Pledgor will, at Pledgor's expense, do all such acts, and will
furnish to IPG all such financing statements, certificates, legal
opinions and other documents and will do or cause to be done all such
other things as IPG may reasonably request from time to time in order to
give full effect to this Agreement and to secure the rights intended to
be granted to IPG hereunder. To the extent permitted by applicable law,
Pledgor hereby authorizes IPG to execute and file, in the name of Pledgor
or otherwise, financing statements under the Uniform Commercial Code (or
other applicable statutes) (which may be photocopies of this Agreement)
which IPG in its sole discretion may deem necessary or appropriate.
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(b) If Pledgor fails to perform any act required by this Agreement, IPG
may perform, or cause performance of, such act, and the expenses of IPG
incurred in connection therewith shall be governed by Section 12 hereof.
15. Notices. Any communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been validly served,
given or delivered (i) upon the earlier of actual receipt and three days after
deposit in the United States Mail, registered or certified mail, with proper
postage prepaid, (ii) upon transmission, when sent by telecopy or other similar
facsimile transmission (promptly confirmed by personal delivery or United
States Mail as otherwise provided in this Section 15), (iii) one Business Day
after deposit with a reputable overnight courier with all charges prepaid or
(iv) when delivered, if hand-delivered by messenger, all of which shall be
addressed to the party to be notified and sent to the address or facsimile
number indicated below or to such other address or facsimile number as may be
substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Failure or delay in delivering copies of any communication to any
Person (other than IPG or Pledgor) designated below to receive copies shall in
no way adversely affect the effectiveness of such communication.
(a) If to IPG, at:
The Interpublic Group of Companies, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Pledgor, at:
All American Fremantle, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler
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1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
16. WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction to the fullest
extent permitted by law, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
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18. Counterparts. This Agreement may be executed in any number of
counterparts, and this shall have the same effect as if the signatures on the
counterparts were set forth on a single copy of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered by its duly authorized officer on the date first
set forth above.
ALL AMERICAN FREMANTLE, INC.
By: _______________________________
Name:
Title:
Accepted and agreed by:
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: _____________________________
Name:
Title:
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SCHEDULE I
% of Authorized % of Outstanding
Shares Shares
Number of Class and par or Represented by Represented by
Issuer Name Owner of Record/Pledgor Pledged Shares Liquidation Value of Shares Pledged Shares Pledged Shares
----------- ----------------------- -------------- --------------------------- -------------- --------------
1. All American All American
Fremantle II, Inc. Fremantle, Inc. Common, $0.001 par value 100% 100%
