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EXHIBIT 10.8
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified or supplemented from
time to time, this "Agreement"), dated as of May 30, 2000, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 24 hereof, the "Pledgors") to
BANKERS TRUST COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
WITNESSETH:
WHEREAS, Universal Compression Holdings, Inc. ("Holdings"),
Universal Compression, Inc. (the "Borrower"), the lenders from time to time
party thereto (the "Lenders"), Deutsche Bank Securities Inc., as Lead Arranger,
and Bankers Trust Company, as Administrative Agent (together with any successor
administrative agent, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of May 30, 2000 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower as
contemplated therein (the Lenders, the Administrative Agent and the Pledgee are
herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to, and after the execution and delivery of,
the Subsidiaries Guaranty, each Subsidiary Guarantor has jointly and severally
guarantied to the Secured Creditors the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
guarantied to the Secured Creditors the payment when due of all of the
Guaranteed Obligations as described therein;
WHEREAS, it is a condition to the making of Loans to, and the
issuance of Letters of Credit for the account of, the Borrower under the Credit
Agreement that each Pledgor shall have executed and delivered to the Pledgee
this Agreement; and
WHEREAS, each Pledgor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
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NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
indebtedness (including, without limitation, indemnities, Fees and
interest thereon) of such Pledgor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with the Credit Documents to which such Pledgor is a party (including,
in the case of each Guarantor, all such obligations and indebtedness of
such Guarantor under its Guaranty) and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained in the Credit Documents (all such obligations and
liabilities under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively
called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
liabilities owing by such Pledgor to the Other Creditors under, or with
respect to (including by reason of such Pledgor's Guaranty), any
Interest Rate Protection Agreement or Other Hedging Agreement, whether
such Interest Rate Protection Agreement or Other Hedging Agreement is
now in existence or hereafter arising, and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained therein (all such obligations and liabilities
described in this clause (ii) being herein collectively called the
"Other Obligations");
(iii) any and all sums advanced by the Pledgee in accordance
herewith in order to preserve the Collateral (as hereinafter defined)
or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i), (ii) and (iii) above, after an
Event of Default or any payment default by the Borrower under any
Interest Rate Protection Agreement or Other Hedging Agreement shall
have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of
or realizing on the Collateral in accordance herewith, or of any
exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of
this Agreement;
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all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITION OF STOCK, NOTES, SECURITIES, PARTNERSHIP
INTERESTS, LIMITED LIABILITY COMPANY INTERESTS, ETC. (a) As used herein, (i) the
term "Stock" shall mean (x) with respect to corporations incorporated under the
laws of the United States or any state or territory thereof (each, a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock, and
all warrants and options to purchase any such capital stock, of any Domestic
Corporation at any time directly owned by any Pledgor and (y) with respect to
corporations not Domestic Corporations (each, a "Foreign Corporation"), all of
the issued and outstanding shares of capital stock, and all warrants and options
to purchase any such capital stock, of any Foreign Corporation at any time
directly owned by any Pledgor, provided that, except as provided in the last
sentence of this Section 2, such Pledgor shall not be required to pledge
hereunder more than 65% of the total combined voting power of all classes of
capital stock of any Foreign Corporation entitled to vote, (ii) the term "Notes"
shall mean all Intercompany Notes and all other promissory notes or other
evidences of indebtedness from time to time issued to, or held by, any Pledgor,
provided that, except as provided in the last sentence of this Section 2, such
Pledgor shall not be required to pledge hereunder (x) any promissory notes
(including Intercompany Notes) issued to such Pledgor by any Subsidiary of such
Pledgor which is a Foreign Corporation or (y) any promissory note (other than an
Intercompany Note) with a remaining principal amount of $100,000 or less and
(iii) the term "Securities" shall mean all of the Stock and Notes. Each Pledgor
represents and warrants, that on the date hereof, (A) the Stock held by such
Pledgor consists of the number and type of shares of the stock of the
corporations as described in Annex A hereto for such Pledgor, (B) such Stock
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex A hereto, (C) the Notes held by
such Pledgor consist of the promissory notes described in Annex B hereto for
such Pledgor, (D) such Pledgor is the holder of record and sole beneficial owner
of the Stock and the Notes held by such Pledgor and (E) on the date hereof, such
Pledgor owns no other Securities. In the circumstances and to the extent
provided in Section 8.12 of the Credit Agreement, the 65% limitation set forth
in the proviso of clause (i)(y) and the limitation in the proviso of clause (ii)
in each case of the first sentence of this Section 2 and in Section 3.2 hereof
shall no longer be applicable and such Pledgor shall duly pledge and deliver to
the Pledgee such of the Securities not theretofore required to be pledged
hereunder.
(b) As used herein, the term "Partnership Interest" shall mean
the entire partnership interests (whether general and/or limited partnership
interests) at any time directly owned by each Pledgor in any Person (each a
"Pledged Partnership"). Each Pledgor represents and warrants that, on the date
hereof, (A) the Partnership Interests held by such Pledgor constitutes that
percentage of the entire partnership interest of the respective Pledged
Partnership as is set forth on Annex C hereto for such Pledgor and (B) such
Pledgor owns no other Partnership Interests.
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(c) As used herein, the term "Limited Liability Company
Interest" shall mean the entire limited liability company membership interests
at any time directly owned by each Pledgor in any Person that is a limited
liability company (each a "Pledged Limited Liability Company"). Each Pledgor
represents and warrants that, on the date hereof, (A) the Limited Liability
Company Interests held by such Pledgor constitutes that percentage of the entire
limited liability company interest of the respective Pledged Limited Liability
Company as is set forth on Annex D hereto for such Pledgor and (B) such Pledgor
owns no other Limited Liability Company Interests.
(d) All Stock at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Stock;" all Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "Pledged
Notes;" all Pledged Stock and Pledged Notes together are called the "Pledged
Securities;" all Partnership Interests at any time pledged or required to be
pledged hereunder are hereinafter called the "Pledged Partnership Interests",
all Limited Liability Company Interests at any time pledged or required to be
pledged hereunder are hereinafter called the "Pledged Limited Liability Company
Interests", and the Pledged Securities, the Pledged Partnership Interests and
the Pledged Limited Liability Company Interests, together with all proceeds
thereof, including any securities and moneys received and at the time held by
the Pledgee hereunder, are hereinafter called the "Collateral."
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. (a) To secure the Obligations of such Pledgor and
for the purposes set forth in Section 1 hereof, each Pledgor hereby (i) grants
to the Pledgee a security interest in all of the Collateral owned by such
Pledgor, (ii) pledges and deposits as security with the Pledgee, the Securities
owned by such Pledgor on the date hereof, and delivers to the Pledgee
certificates or instruments therefor, duly endorsed in blank by such Pledgor in
the case of Notes and accompanied by undated stock powers duly executed in blank
by such Pledgor (and accompanied by any transfer tax stamps required in
connection with the pledge of such Securities) in the case of Stock, or such
other instruments of transfer as are reasonably acceptable to the Pledgee, (iii)
assigns, transfers, hypothecates, mortgages, charges and sets over to the
Pledgee all of such Pledgor's right, title and interest in and to such
Securities (and in and to the certificates or instruments evidencing such
Securities), to be held by the Pledgee upon the terms and conditions set forth
in this Agreement, (iv) transfers and assigns to the Pledgee such Pledgor's
Partnership Interests (and delivers any certificates or instruments evidencing
such partnership interests, duly endorsed in blank) and all of such Pledgor's
right, title and interest in each Pledged Partnership including, without
limitation:
(A) all of the capital thereof and its interest in all profits,
losses, Partnership Assets (as defined below) and other distributions
to which such Pledgor shall at any time be entitled in respect of any
such Collateral;
(B) all other payments due or to become due to such Pledgor in
respect of any such Collateral, whether under any partnership agreement
or otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;
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(C) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under any
partnership or other agreement or at law or otherwise in respect of any
such Collateral;
(D) all present and future claims, if any, of such Pledgor
against any Pledged Partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or at law to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to any
Partnership Interest, including any power, if any, to terminate, cancel
or modify any general or limited partnership agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of such Pledgor in respect of such Partnership Interest and
any Pledged Partnership, to make determinations, to exercise any
election (including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment, waiver or
approval, together with full power and authority to demand, receive,
enforce, collect, or receipt for any of the foregoing or for any
Partnership Asset (as hereinafter defined), to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing;
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, distributions, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
(G) to the extent not otherwise included, all proceeds of any
or all of the foregoing.
and (v) transfers and assigns to the Pledgee such Pledgor's
Limited Liability Company Interests (and delivers any certificates or
instruments evidencing such limited liability company interests, duly endorsed
in blank) and all of such Pledgor's right, title and interest in each Pledged
Limited Liability Company including, without limitation:
(A) all of the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets (as defined below) and other
distributions to which such Pledgor shall at any time be entitled in
respect of any such Collateral;
(B) all other payments due or to become due to such Pledgor in
respect of any such Collateral, whether under any limited liability
company agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under any
limited liability company agreement or operating agreement or at law or
otherwise in respect of any such Collateral;
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(D) all present and future claims, if any, of such Pledgor
against any Pledged Limited Liability Company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to any Limited Liability Company Interest,
including any power, if any, to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of such Pledgor in respect of such Limited Liability Company
Interest and any Pledged Limited Liability Company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect, or receipt for any of
the foregoing or for any Limited Liability Company Asset (as
hereinafter defined), to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in
connection with any of the foregoing;
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, distributions, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
(G) to the extent not otherwise included, all proceeds of any or
all of the foregoing.
(b) As used herein, the term (i) "Partnership Assets" shall
mean all assets, whether tangible or intangible and whether real, personal or
mixed (including, without limitation, all partnership capital and interests in
other partnerships), at any time owned by any Pledged Partnership or represented
by any Partnership Interest , and (ii) "Limited Liability Company Assets" shall
mean all assets, whether tangible or intangible and whether real, personal or
mixed (including, without limitation, all limited liability company capital and
interests in other limited liability companies), at any time owned by any
Pledged Limited Liability Company or represented by any Limited Liability
Company Interest.
3.2. Subsequently Acquired Securities, Partnership Interests
and/or Limited Liability Company Interests. (a) If any Pledgor shall directly
acquire (by purchase, stock dividend or otherwise) any additional Securities at
any time or from time to time after the date hereof, such Pledgor will promptly
thereafter deposit such Securities (or certificates or instruments representing
such Securities) as security with the Pledgee and deliver to the Pledgee
certificates or instruments therefor, duly endorsed in blank in the case of such
Notes, and accompanied by undated stock powers duly executed in blank by such
Pledgor (and accompanied by any transfer tax stamps required in connection with
the pledge of such Securities) in the case of such Stock, or such other
instruments of transfer as are reasonably acceptable to the Pledgee, and will
promptly thereafter deliver to the Pledgee a certificate or letter executed by a
principal
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executive officer of such Pledgor describing such Securities and certifying that
the same has been duly pledged with the Pledgee hereunder. Subject to the last
sentence of Section 2 hereof, no Pledgor shall be required at any time to pledge
hereunder (x) any Stock which is more than 65% of the total combined voting
power of all classes of capital stock of any Foreign Corporation entitled to
vote or (y) any promissory notes (including Intercompany Notes) issued to such
Pledgor by any Subsidiary of such Pledgor which is a Foreign Corporation.
(b) If any Pledgor shall acquire (by purchase, distribution or
otherwise) any additional Partnership Interest at any time or from time to time
after the date hereof, and, to the extent such Partnership Interest is
certificated, such Pledgor shall forthwith deliver to the Pledgee certificates
therefor, accompanied by such instruments of transfer as are acceptable to the
Pledgee, and shall promptly thereafter deliver to the Pledgee a certificate or
letter executed by a principal executive officer of such Pledgor describing such
Partnership Interest and certifying that the same has been duly pledged with the
Pledgee hereunder.
(c) If any Pledgor shall acquire (by purchase, distribution or
otherwise) any additional Limited Liability Company Interest at any time or from
time to time after the date hereof, and, to the extent such Limited Liability
Company Interest is certificated, such Pledgor shall forthwith deliver to the
Pledgee certificates therefor, accompanied by such instruments of transfer as
are acceptable to the Pledgee, and shall promptly thereafter deliver to the
Pledgee a certificate or letter executed by a principal executive officer of
such Pledgor describing such Limited Liability Company Interest and certifying
that the same has been duly pledged with the Pledgee hereunder.
3.3. Uncertificated Securities, Partnership Interests and
Limited Liability Company Interests. Notwithstanding anything to the contrary
contained in Sections 3.1 and 3.2 hereof, if any Securities (whether now owned
or hereafter acquired), Partnership Interests or Limited Liability Company
Interests are uncertificated securities, the relevant Pledgor shall promptly
notify the Pledgee thereof, and shall promptly take all actions required to
perfect the security interest of the Pledgee under applicable law (including, in
any event, under the applicable provisions of the New York Uniform Commercial
Code). Each Pledgor further agrees to take such actions as the Pledgee deems
necessary or reasonably desirable to effect the foregoing and to permit the
Pledgee to exercise any of its rights and remedies hereunder, and agrees to
provide an opinion of counsel reasonably satisfactory to the Pledgee with
respect to any such pledge of uncertificated Securities promptly upon the
reasonable request of the Pledgee.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, the Pledgee
shall have the right, upon written notice to the Borrower (provided that no such
notice shall be required to the extent that same may not be permitted to be
given under applicable law), to appoint one or more sub-agents for the purpose
of retaining physical possession of the Pledged Securities, Pledged Partnership
Interests or Pledged Limited Liability Company Interests, which may be held (in
the discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
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5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default, each Pledgor
shall be entitled to exercise any and all (i) voting and other consensual rights
pertaining to the Pledged Securities owned by it, and to give consents, waivers
or ratifications in respect thereof, and (ii) voting, consent, administration,
management and other rights and remedies under any partnership agreement or
otherwise with respect to the Pledged Partnership Interests of such Pledgor;
provided, that, in each case, no vote shall be cast or any consent, waiver or
ratification given or any action taken or omitted to be taken which would
violate or be inconsistent with any of the terms of this Agreement, the Credit
Agreement, any other Credit Document or any Interest Rate Protection Agreement
or Other Hedging Agreement (collectively, the "Secured Debt Agreements"), or
which would have the effect of impairing the value of the Collateral or any part
thereof or the position or interests of the Pledgee or any other Secured
Creditor in the Collateral. All such rights of each Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default has
occurred and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default, (i) all cash
dividends and distributions payable in respect of the Pledged Stock and all
payments in respect of the Pledged Notes shall be paid to the respective Pledgor
and (ii) all cash distributions payable in respect of the Pledged Partnership
Interests and the Pledged Limited Liability Company Interests shall be paid to
the respective Pledgor. The Pledgee shall be entitled to receive directly, and
to retain as part of the Collateral:
(i) all other or additional stock or other securities or
partnership interests or limited liability company interests (other
than cash) paid or distributed by way of dividend, distribution or
otherwise in respect of the Collateral;
(ii) all other or additional stock or other securities or
partnership interests or limited liability company interests paid or
distributed in respect of the Collateral by way of merger,
consolidation, conveyance of assets, liquidation, exchange of stock,
stock-split, spin-off, split-up, reclassification, combination of
shares or similar rearrangement; and
(iii) all other property (other than cash) paid or distributed by
way of dividend or distribution in respect of the Collateral.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
and Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
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7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If there
shall have occurred and be continuing an Event of Default, then and in every
such case, the Pledgee shall be entitled to exercise all of the rights, powers
and remedies (whether vested in it by this Agreement, any other Secured Debt
Agreement or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code and also shall
be entitled, without limitation, to exercise the following rights:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the respective
Pledgor;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note (including, without limitation, to make any
demand for payment thereon);
(d) to vote all or any part of the Pledged Stock, Pledged
Partnership Interests or Pledged Limited Liability Company Interests
(whether or not transferred into the name of the Pledgee) and give all
consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright owner
thereof (each Pledgor hereby irrevocably constituting and appointing
the Pledgee the proxy and attorney-in-fact of such Pledgor, with full
power of substitution to do so); and
(e) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' written notice of the time
and place of any such sale shall be given to the respective Pledgor.
The Pledgee shall not be obligated to make any such sale of Collateral
regardless of whether any such notice of sale has theretofore been
given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if
any, of marshalling the Collateral and any other security for the
Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid
for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Pledgee nor any
other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing
nor shall any of them be under any obligation to take any action
whatsoever with regard thereto.
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8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, 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
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or in any other Secured Debt Agreement
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 or any
other Secured Creditor of all such other rights, powers or remedies, and no
failure or delay on the part of the Pledgee or any other Secured Creditor to
exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, in each case acting upon the instructions of the Required
Secured Creditors (as defined in the Security Agreement) and that no other
Secured Creditor shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security to be granted hereby, it
being understood and agreed that such rights and remedies may be exercised by
the Pledgee or the holders of at least a majority of the outstanding Other
Obligations, as the case may be, for the benefit of the Secured Creditors upon
the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement, together with all other moneys received by the Pledgee
hereunder, shall be applied in the manner provided in Section 7.4 of the
Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i)
to indemnify and hold harmless the Pledgee in such capacity and each other
Secured Creditor and their respective successors, assigns, employees, agents and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing out of or resulting from this Agreement or
the exercise by any Indemnitee of any right or remedy granted to it hereunder or
under any other Secured Debt Agreement (but
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excluding any claims, demands, losses, judgments and liabilities or expenses to
the extent incurred by reason of gross negligence or willful misconduct of any
Indemnitee). In no event shall the Pledgee be liable, in the absence of gross
negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for monies actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of any Pledgor under this Section 11 are unenforceable for any
reason, such Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
12. PLEDGEE NOT BOUND. (a) Nothing herein shall be construed
to make the Pledgee or any other Secured Creditor liable as a member of any
limited liability company or as a general partner or limited partner of any
partnership and the Pledgee or any other Secured Creditor by virtue of this
Agreement or otherwise (except as referred to in the following sentence) shall
not have any of the duties, obligations or liabilities of a member of any
limited liability company or of a general partner or limited partner of any
partnership. The parties hereto expressly agree that, unless the Pledgee shall
become the absolute owner of Collateral consisting of a Limited Liability
Company Interest or a Partnership Interest pursuant hereto, this Agreement shall
not be construed as creating a partnership or joint venture among the Pledgee,
any other Secured Creditor, any Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a)
of this Section, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or a general partner or limited
partner of any partnership or otherwise be deemed to be a co-venturer with
respect to any Pledgor, any limited liability company, partnership and/or any
other Person either before or after an Event of Default shall have occurred. The
Pledgee shall have only those powers set forth herein and the Secured Creditors
shall assume none of the duties, obligations or liabilities of a member of any
limited liability company or a general partner or limited partner of any
partnership or of any Pledgor.
(c) The Pledgee shall not be obligated to perform or discharge
any obligation of any Pledgor as a result of the collateral assignment hereby
effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee to appear in or defend any action or
proceeding relating to the Collateral to which it is not a party, or to take any
action hereunder or thereunder, or to expend any money or incur any expenses or
perform or discharge any obligation, duty or liability under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the Uniform Commercial Code or other
applicable law such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem necessary and wherever
required 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 without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the
12
EXHIBIT G
Page 12
Pledgee such additional conveyances, assignments, agreements and instruments as
the Pledgee may reasonably require or deem necessary to carry into effect the
purposes of this Agreement or to further assure and confirm unto the Pledgee its
rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Pledgee's reasonable discretion to take any action and to execute any instrument
which the Pledgee may deem necessary or advisable to accomplish the purposes of
this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set forth
herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.
Each Pledgor represents, warrants and covenants that (i) it is the legal, record
and beneficial owner of all Pledged Securities, Pledged Partnership Interests
and Pledged Limited Liability Company Interests pledged by it hereunder, subject
to no Lien (except the Lien created by this Agreement and any Permitted Liens);
(ii) it has full power, authority and legal right to pledge all the Pledged
Securities, Pledged Partnership Interests and Pledged Limited Liability Company
Interests pledged by it pursuant to this Agreement; (iii) this Agreement has
been duly authorized, executed and delivered by such Pledgor and constitutes a
legal, valid and binding obligation of such Pledgor enforceable in accordance
with its terms except to the extent that the enforceability hereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law);
(iv) except as have been obtained by the Pledgors as of the date hereof, no
consent of any other party (including, without limitation, any stockholder,
partner or creditor of such Pledgor or any of its Subsidiaries or any Pledged
Partnership) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required to be obtained by such Pledgor in
connection with the execution, delivery or performance of this Agreement, the
validity or enforceability of this Agreement, the perfection or enforceability
of the Pledgee's security interest in the Collateral or, except for compliance
with or as may be required by applicable securities laws, the exercise by the
Pledgee of any of its rights or remedies provided herein; (v) the execution,
delivery and performance of this Agreement by
13
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Page 13
such Pledgor will not violate any provision of any applicable law or regulation
or of any order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, applicable to such Pledgor, or of
the certificate of incorporation or by-laws (or equivalent organizational
documents) of such Pledgor or of any securities issued by such Pledgor or any of
its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, loan
agreement, credit agreement or other material contract, agreement or instrument
or undertaking to which such Pledgor or any of its Subsidiaries is a party or
which purports to be binding upon such Pledgor or any of its Subsidiaries or
upon any of their respective assets and will not result in the creation or
imposition of (or the obligation to create or impose) any lien or encumbrance on
any of the assets of such Pledgor or any of its Subsidiaries except as
contemplated by this Agreement; (vi) all the shares of Stock have been duly and
validly issued, are fully paid and non-assessable and are subject to no options
to purchase or similar rights; (vii) each of the Intercompany Notes constituting
Pledged Notes constitutes, or when executed by the obligor thereof will
constitute, the legal, valid and binding obligation of such obligor, enforceable
in accordance with its terms except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law); (viii) the pledge, assignment and delivery to the Pledgee of the
Securities (other than uncertificated securities) pursuant to this Agreement
creates a valid and perfected first priority Lien in the Securities, and the
proceeds thereof, subject to no other Lien or to any agreement purporting to
grant to any third party a Lien on the Securities; (ix) each such Pledged
Partnership Interest has been validly acquired and is fully paid for (to the
extent applicable) and is duly and validly pledged hereunder; (x) each general
or limited partnership agreement delivered to the Pledgee is an original signed
counterpart (or a copy thereof) of the complete and entire such partnership
agreement in effect on the date hereof; (xi) each partnership agreement is the
legal, valid and binding obligation of each Pledgor, enforceable in accordance
with its terms except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law);
(xii) no Pledgor is in default in the payment of any portion of any mandatory
capital contribution, if any, required to be made under any general or limited
partnership agreement to which such Pledgor is a party, and no Pledgor is in
violation of any other material provisions of any partnership agreement to which
such Pledgor is a party, or otherwise in default or violation thereunder; (xiii)
no Pledged Partnership Interest is, to the knowledge of such Pledgor (but only
in the case of a partnership which is not a Subsidiary of such Pledgor), subject
to any defense, offset or counterclaim, nor have any of the foregoing been
asserted or alleged against such Pledgor by any Person with respect thereto;
(xiv) the pledge and assignment of the Pledged Partnership Interests pursuant to
this Agreement, together with the relevant filings or recordings under the UCC
(which filings and recordings have been or will be made), creates a valid,
perfected and continuing first priority security interest in such Partnership
Interests and the proceeds thereof, subject to no prior lien or encumbrance or
to any agreement purporting to grant to any third party a lien or encumbrance on
such Partnership Interests; (xv) each such Pledged Limited Liability Company
Interest has been validly acquired and is fully paid for (to the extent
applicable) and is duly and validly pledged hereunder; (xvi) each limited
liability company agreement or operating agreement delivered to the Pledgee is
an original signed counterpart (or a copy thereof) of the
14
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Page 14
complete and entire such limited liability company agreement or operating
agreement in effect on the date hereof; (xvii) each limited liability company
agreement or operating agreement is the legal, valid and binding obligation of
each Pledgor, enforceable in accordance with its terms except to the extent that
the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law); (xviii) no Pledgor is in default in the payment of any
portion of any mandatory capital contribution, if any, required to be made under
any limited liability company agreement or operating agreement to which such
Pledgor is a party, and no Pledgor is in violation of any other material
provisions of any limited liability company agreement or operating agreement to
which such Pledgor is a party, or otherwise in default or violation thereunder;
(xix) no Pledged Limited Liability Company Interest is, to the knowledge of such
Pledgor (but only in the case of a limited liability company which is not a
Subsidiary of such Pledgor), subject to any defense, offset or counterclaim, nor
have any of the foregoing been asserted or alleged against such Pledgor by any
Person with respect thereto; (xx) the pledge and assignment of the Pledged
Limited Liability Company Interests pursuant to this Agreement, together with
the relevant filings or recordings under the UCC (which filings and recordings
have been or will be made), creates a valid, perfected and continuing first
priority security interest in such Limited Liability Company Interests and the
proceeds thereof, subject to no prior lien or encumbrance or to any agreement
purporting to grant to any third party a lien or encumbrance on such Limited
Liability Company Interests; (xxi) there are no currently effective financing
statements under the UCC covering any property which is now or hereafter may be
included in the Collateral and such Pledgor will not, without the prior written
consent of the Pledgee, execute and, until the Termination Date (as hereinafter
defined), there will not ever be on file in any public office any enforceable
financing statement or statements covering any or all of the Collateral, except
financing statements filed or to be filed in favor of the Pledgee as secured
party; (xxii) each Pledgor shall give the Pledgee prompt notice of any written
claim it receives relating to the Collateral; (xxiii) each Pledgor shall deliver
to the Pledgee a copy of each other demand, notice or document received by it
which may adversely affect the Pledgee's interest in the Collateral promptly
upon, but in any event within 10 days after, such Pledgor's receipt thereof;
(xxiv) a notice in the form set forth in Annex E attached hereto and by this
reference made a part hereof (such notice the "Partnership Notice"),
appropriately completed, notifying each Pledged Partnership of the existence of
this Agreement and a certified copy of this Agreement have been delivered by
each Pledgor to the relevant Pledged Partnership, and each such Pledgor has
received and delivered to the Collateral Agent an acknowledgment in the form set
forth in Annex F attached hereto (such acknowledgment, the "Partnership
Acknowledgment"), duly executed by the relevant Pledged Partnership; (xxv) a
notice in the form set forth in Annex G attached hereto and by this reference
made a part hereof (such notice the "Limited Liability Company Notice"),
appropriately completed, notifying each Pledged Limited Liability Company of the
existence of this Agreement and a certified copy of this Agreement have been
delivered by each Pledgor to the relevant Pledged Limited Liability Company, and
each such Pledgor has received and delivered to the Collateral Agent an
acknowledgment in the form set forth in Annex H attached hereto (such
acknowledgment, the "Limited Liability Company Acknowledgment"), duly executed
by the relevant Pledged Limited Liability Company; and (xxvi) the chief
executive office of such Pledgor is set forth on Annex I hereto or such other
office as such Pledgor may establish in accordance with the terms of the
15
EXHIBIT G
Page 15
Security Agreement. Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Collateral against
the claims and demands of all persons whomsoever; and such Pledgor covenants and
agrees that it will have like title to and right to pledge any other property at
any time hereafter pledged to the Pledgee as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the Pledgee
and the other Secured Creditors.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
18. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Pledged Stock, such Pledgor as soon as practicable and at its expense will cause
such registration to be effected (and be kept effective) and will cause such
qualification and compliance to be declared effected (and be kept effective) as
may be so requested and as would permit or facilitate the sale and distribution
of such Pledged Stock, including, without limitation, registration under the
Securities Act of 1933, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, provided, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. Such Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Pledged Stock against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in
16
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Page 16
any related registration statement, notification or the like) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same may have been caused by an untrue
statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Pledged Securities, Pledged
Partnership Interests or Pledged Limited Liability Company Interests pursuant to
Section 7 hereof, and such Pledged Securities, Pledged Partnership Interests or
Pledged Limited Liability Company Interests or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the Securities
Act of 1933, as then in effect, the Pledgee may, in its sole and absolute
discretion but subject to applicable law, sell such Pledged Securities, Pledged
Partnership Interests or Pledged Limited Liability Company Interests, as the
case may be, or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable in order that such
sale may legally be effected without such registration. Without limiting the
generality of the foregoing, in any such event the Pledgee, in its sole and
absolute discretion (i) may proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Pledged
Securities, Pledged Partnership Interests or Pledged Limited Liability Company
Interests or part thereof shall have been filed under such Securities Act, (ii)
may approach and negotiate with a single possible purchaser to effect such sale,
and (iii) may restrict such sale to a purchaser who will represent and agree
that such purchaser is purchasing for its own account, for investment, and not
with a view to the distribution or sale of such Pledged Securities, Pledged
Partnership Interests or Pledged Limited Liability Company Interests or part
thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Pledged
Securities, Pledged Partnership Interests or Pledged Limited Liability Company
Interests in accordance with Section 18 at a price which the Pledgee, in its
sole and absolute discretion, in good xxxxx xxxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might be realized if the sale were deferred until after registration as
aforesaid.
19. TERMINATION; RELEASE. (a) After the Termination Date (as
defined below), this Agreement and the security interest created hereby shall
terminate (provided that all indemnities set forth herein including, without
limitation, in Section 11 hereof shall survive any such termination), and the
Pledgee, at the request and expense of any Pledgor, will execute and deliver to
such Pledgor a proper instrument or instruments acknowledging the satisfaction
and termination of this Agreement, and will duly assign, transfer and deliver to
such Pledgor (without recourse and without any representation or warranty) such
of the Collateral as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement, together with any monies at the time held
by the Pledgee or any of its sub-agents hereunder. As used in this Agreement,
"Termination Date" shall mean the date upon which the Total Commitment and all
Interest Rate Protection Agreements and Other Hedging Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
have been repaid in full), all Letters of Credit have been terminated and all
Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 9.02 of the Credit Agreement (other
than a sale to any Pledgor or any
17
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Page 17
Subsidiary thereof) or is otherwise released at the direction of the Required
Secured Creditors and the proceeds of such sale or sales or from such release
are applied in accordance with the provisions of the Credit Agreement, to the
extent required to be so applied, the Pledgee, at the request and expense of any
Pledgor, will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral (and
releases therefor) as is then being (or has been) so sold or released and has
not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 19(a) or (b) hereof, it shall deliver to the Pledgee a certificate
signed by a principal executive officer of such Pledgor stating that the release
of the respective Collateral is permitted pursuant to such Section 19(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 19.
20. NOTICES, ETC. All such notices and communications
hereunder shall be sent or delivered by mail, telegraph, telex, telecopy, cable
or overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier and when
mailed shall be effective three Business Days following deposit in the mail with
proper postage, except that notices and communications to the Pledgee shall not
be effective until received by the Pledgee. All notices and other communications
shall be in writing and addressed as follows:
(a) if to any Pledgor, at the address set forth opposite such
Pledgor's signature below;
(b) if to the Pledgee, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Mailstop 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Lender Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent
specified in the Credit Agreement or (y) at such address as such Lender
Creditor shall have specified in the Credit Agreement;
(d) if to any Other Creditor at such address as such Other
Creditor shall have specified in writing to the Pledgors and the
Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
18
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Page 18
21. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly affected
thereby and the Pledgee (with the written consent of the Required Secured
Creditors); provided, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class (as defined below) of
Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (i) the Lender
Creditors as holders of the Credit Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (i)
with respect to the Credit Document Obligations, the Required Lenders and (ii)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements or Other Hedging Agreements. Each Pledgor may assume that any waiver
or amendment executed and delivered by the Pledgee has been approved by the
Required Secured Creditors as provided in this Section 21.
22. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement without the prior consent of the Collateral
Agent. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK. The headings in this
Agreement are for purposes of reference only and shall not limit or define the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument. In the event that any provision of this Agreement shall prove to be
invalid or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all parties
hereto.
23. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
24. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Pledgee.
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Page 19
25. MISCELLANEOUS. Notwithstanding anything to the contrary
contained herein or in the Credit Agreement, each Pledgor hereby covenants and
agrees that with respect to any Pledged Partnership Interest or Pledged Limited
Liability Company Interest pledged by it hereunder, (i) such Pledgor will
deliver to the respective Pledged Partnership (with copies to the Pledgee) a
Partnership Notice (appropriately completed) and such Pledgor will deliver to
the Pledgee a Partnership Acknowledgment signed by the respective Pledged
Partnerships, in each case within 15 days following the date any such Pledged
Partnership Interests are pledged hereunder , and (ii) such Pledgor will deliver
to the respective Pledged Limited Liability Company (with copies to the Pledgee)
a Limited Liability Company Notice (appropriately completed) and such Pledgor
will deliver to the Pledgee a Limited Liability Company Acknowledgment signed by
the respective Pledged Limited Liability Company, in each case within 15 days
following the date any such Pledged Limited Liability Company Interests are
pledged hereunder.
* * * *
20
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Page 20
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address:
0000 Xxxxxxxxxx Xxxx UNIVERSAL COMPRESSION HOLDINGS, INC.,
Xxxxxxx, Xxxxx 00000 as a Pledgor
Attn: President
Tel.: (000) 000-0000
Fax: (000) 000-0000 By /s/ XXXXXXX XXXXXXXXXX
---------------------------------
Title: Chief Financial Officer
0000 Xxxxxxxxxx Xxxx UNIVERSAL COMPRESSION, INC.,
Xxxxxxx, Xxxxx 00000 as a Pledgor
Attn.: President
Tel.: (000) 000-0000
Fax: (000) 000-0000 By /s/ XXXXXXX XXXXXXXXXX
---------------------------------
Title: Chief Financial Officer
0000 Xxxxxxxxxx Xxxx UNIVERSAL COMPRESSION INTERNATIONAL,
Xxxxxxx, Xxxxx 00000 INC., as a Pledgor
Attn.: President
Tel.: (000) 000-0000
Fax: (000) 000-0000 By /s/ XXXXXXX XXXXXXXXXX
---------------------------------
Title: Chief Financial Officer
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Pledgee, Collateral Agent
By /s/ XXXXXX XXXXXXXXXX
---------------------------------
Title: Director
21
ANNEX A
to
PLEDGE AGREEMENT
LIST OF STOCK
I. Universal Compression Holdings, Inc.
=============================================================================================================
Percentage of
Name of Issuing Certificate Outstanding Shares
Corporation Number Type of Shares Number of Shares of Capital Stock
-------------------------------------------------------------------------------------------------------------
Universal
Compression Inc. 25 Common 4,900 100%
=============================================================================================================
II. Universal Compression Inc.
=============================================================================================================
Percentage of
Name of Issuing Certificate Outstanding Shares
Corporation Number Type of Shares Number of Shares of Capital Stock
-------------------------------------------------------------------------------------------------------------
Universal Compression 1 Common 100 100%
International, Inc.
-------------------------------------------------------------------------------------------------------------
Universal Compression ____* 65%
de Venezuela
Unicom, C.A.
-------------------------------------------------------------------------------------------------------------
Universal Compression Ordinary Class ____* 65%
PTY, Ltd.
=============================================================================================================
III. Universal Compression International Inc.
=============================================================================================================
Percentage of
Name of Issuing Certificate Outstanding Shares
Corporation Number Type of Shares Number of Shares of Capital Stock
-------------------------------------------------------------------------------------------------------------
Universal Compression Ordinary ____* 65%
International, Ltd.
-------------------------------------------------------------------------------------------------------------
Universal Compression ____* 65%
de Mexico, S.A. de
C.V.
=============================================================================================================
*65% of the outstanding shares of the capital stock of these Foreign
Subsidiaries will be pledged and delivered to the Pledgee within 45 days after
the Effective Date pursuant to Section 8.11(e) of the Credit Agreement.
22
ANNEX B
to
PLEDGE AGREEMENT
LIST OF NOTES
None.
23
ANNEX C
to
PLEDGE AGREEMENT
LIST OF PARTNERSHIP INTERESTS
I. Universal Compression Holdings, Inc.
None.
II. Universal Compression, Inc.
None.
III. Universal Compression International, Inc.
None.
24
ANNEX D
to
PLEDGE AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
I. Universal Compression Holdings, Inc.
None.
II. Universal Compression, Inc.
None.
III. Universal Compression International, Inc.
None.
25
ANNEX E
to
PLEDGE AGREEMENT
FORM OF PARTNERSHIP NOTICE
[Letterhead of Pledgor]
-------- --, ----
TO: [Name of Pledged Partnership]
Notice is hereby given that pursuant to a Pledge Agreement (a
true and correct copy of which is attached hereto), dated as of May 30, 2000 (as
amended, modified or supplemented from time to time in accordance with the terms
thereof, the "Pledge Agreement"), among [NAME OF PLEDGOR] (the "Pledgor"), the
other pledgors from time to time party thereto and Bankers Trust Company (the
"Pledgee"), as Collateral Agent on behalf of the Secured Creditors described
therein, the Pledgor has pledged and assigned to the Pledgee for the benefit of
the Secured Creditors, and granted to the Pledgee for the benefit of the Secured
Creditors, a continuing security interest in, all right, title and interest of
the Pledgor, whether now existing or hereafter arising or acquired, as a
[limited] [general] partner in [NAME OF PLEDGED PARTNERSHIP] (the
"Partnership"), and in, to and under the [TITLE OF APPLICABLE PARTNERSHIP
AGREEMENT] (the "Partnership Agreement"), including, without limitation:
(i) the Pledgor's interest in all of the capital of the
Partnership and the Pledgor's interest in all profits, losses,
Partnership Assets (as defined in the Pledge Agreement) and other
distributions to which the Pledgor shall at any time be entitled in
respect of such partnership interest;
(ii) all other payments due or to become due to the Pledgor in
respect of such partnership interest, whether under the Partnership
Agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(iii) all of the Pledgor's claims, rights, powers, privileges,
authority, options, security interest, liens and remedies, if any,
under the Partnership Agreement or at law or otherwise in respect of
such partnership interest;
(iv) all present and future claims, if any, of the Pledgor
against the Partnership for moneys loaned or advanced, for services
rendered or otherwise;
(v) all of the Pledgor's rights under the Partnership Agreement
or at law to exercise and enforce every right, power, remedy,
authority, option and privilege of the Pledgor relating to the
partnership interest, including any power to terminate, cancel or
modify the Partnership Agreement, to execute any instruments and to
take any and all
26
Page 2
other action on behalf of and in the name of the Pledgor in respect of
the Partnership Interest and the Partnership, to make determinations,
to exercise any election (including, but not limited, election of
remedies) or option or to give or receive any notice, consent,
amendment, waiver or approval, together with full power and authority
to demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing;
(vi) all other property hereafter delivered to the Pledgor in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such other
property and all cash, securities, interest, dividends, distributions,
rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all thereof; and
(vii) to the extent not otherwise included, all proceeds of
any or all of the foregoing.
Pursuant to the Pledge Agreement, the Partnership is hereby
authorized and directed to register the Pledgor's pledge to the Pledgee on
behalf of the Secured Creditors of the interest of the Pledgor on the
Partnership's books.
The Pledgor hereby irrevocably agrees and authorizes and
directs the Partnership after such time as the Partnership receives a notice
from the Pledgee of an Event of Default, and until such time as such Event of
Default has been cured or waived, that instructions originated by the Pledgee on
behalf of the Secured Creditors with respect to the Pledgor's claims, rights,
interests, powers, remedies, authorities, options and privileges set forth above
shall, unless written notice to the contrary is given by the Pledgee to the
Partnership, be complied with by the Partnership, without further consent by the
Pledgor.
The Pledgor hereby requests the Partnership to indicate the
Partnership's acceptance of this Notice and consent to and confirmation of its
terms and provisions by signing a copy hereof where indicated on the attached
page and returning the same to the Pledgee on behalf of the Secured Creditors.
[NAME OF PLEDGOR]
By
----------------------------------------
Name:
Title:
27
ANNEX F
to
PLEDGE AGREEMENT
FORM OF PARTNERSHIP ACKNOWLEDGMENT
[NAME OF PLEDGED PARTNERSHIP] (the "Partnership") hereby
acknowledges receipt of a copy of the assignment by [NAME OF PLEDGOR]
("Pledgor") of its interest under the [TITLE OF APPLICABLE PARTNERSHIP
AGREEMENT] (the "Partnership Agreement") pursuant to the terms of the Pledge
Agreement, dated as of May 30, 2000 (as amended, modified or supplemented from
time to time in accordance with the terms thereof, the "Pledge Agreement"),
among the Pledgor, the other pledgors from time to time party thereto and
Bankers Trust Company (the "Pledgee"), as Collateral Agent on behalf of the
Secured Creditors described therein. The undersigned hereby further confirms the
registration of the Pledgor's pledge of its interest to the Pledgee on behalf of
the Secured Creditors on the Partnership's books.
The Partnership hereby irrevocably agrees to comply with the
instructions originated by the Pledgee, on behalf of the Secured Creditors, of
the type and at the times referred to in the penultimate paragraph of the
Partnership Notice dated ___________ __, ____ signed by the Pledgor, without
further consent by the Pledgor. The undersigned further hereby irrevocably
agrees, except upon the prior written consent of the Pledgee, not to honor any
such instructions given by any other person or entity.
Dated:
----------- --, ----
[NAME OF PLEDGED PARTNERSHIP]
By
---------------------------------------
Name:
Title:
28
ANNEX G
to
PLEDGE AGREEMENT
FORM OF LIMITED LIABILITY COMPANY NOTICE
[Letterhead of Pledgor]
-------- --, ----
TO: [Name of Pledged Limited Liability Company]
Notice is hereby given that pursuant to a Pledge Agreement (a
true and correct copy of which is attached hereto), dated as of May 30, 2000 (as
amended, modified or supplemented from time to time in accordance with the terms
thereof, the "Pledge Agreement"), among [NAME OF PLEDGOR] (the "Pledgor"), the
other pledgors from time to time party thereto and Bankers Trust Company (the
"Pledgee"), as Collateral Agent on behalf of the Secured Creditors described
therein, the Pledgor has pledged and assigned to the Pledgee for the benefit of
the Secured Creditors, and granted to the Pledgee for the benefit of the Secured
Creditors, a continuing security interest in, all right, title and interest of
the Pledgor, whether now existing or hereafter arising or acquired, as a member
of [NAME OF PLEDGED LIMITED LIABILITY COMPANY] (the "Limited Liability
Company"), and in, to and under the [TITLE OF APPLICABLE LIMITED LIABILITY
COMPANY OR OPERATING AGREEMENT] (the "Limited Liability Company Agreement"),
including, without limitation:
(i) the Pledgor's interest in all of the capital of the Limited
Liability Company and the Pledgor's interest in all profits, losses,
Limited Liability Company Assets (as defined in the Pledge Agreement)
and other distributions to which the Pledgor shall at any time be
entitled in respect of such limited liability company interest;
(ii) all other payments due or to become due to the Pledgor in
respect of such limited liability company interest, whether under the
Limited Liability Company Agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(iii) all of the Pledgor's claims, rights, powers, privileges,
authority, options, security interest, liens and remedies, if any,
under the Limited Liability Company Agreement or at law or otherwise in
respect of such limited liability company interest;
(iv) all present and future claims, if any, of the Pledgor
against the Limited Liability Company for moneys loaned or advanced,
for services rendered or otherwise;
(v) all of the Pledgor's rights under the Limited Liability
Company Agreement or at law to exercise and enforce every right, power,
remedy, authority, option and privilege
29
Page 2
of the Pledgor relating to the limited liability company interest,
including any power to terminate, cancel or modify the Limited
Liability Company Agreement, to execute any instruments and to take any
and all other action on behalf of and in the name of the Pledgor in
respect of the Limited Liability Company Interest and the Limited
Liability Company, to make determinations, to exercise any election
(including, but not limited, election of remedies) or option or to give
or receive any notice, consent, amendment, waiver or approval, together
with full power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Limited Liability Company
Asset, to enforce or execute any checks, or other instruments or
orders, to file any claims and to take any action in connection with
any of the foregoing;
(vi) all other property hereafter delivered to the Pledgor in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such other
property and all cash, securities, interest, dividends, distributions,
rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all thereof; and
(vii) to the extent not otherwise included, all proceeds of
any or all of the foregoing.
Pursuant to the Pledge Agreement, the Limited Liability
Company is hereby authorized and directed to register the Pledgor's pledge to
the Pledgee on behalf of the Secured Creditors of the interest of the Pledgor on
the Limited Liability Company's books.
The Pledgor hereby irrevocably agrees and authorizes and
directs the Limited Liability Company after such time as the Limited Liability
Company receives a notice from the Pledgee of an Event of Default, and until
such time as such Event of Default has been cured or waived, that instructions
originated by the Pledgee on behalf of the Secured Creditors with respect to the
Pledgor's claims, rights, interests, powers, remedies, authorities, options and
privileges set forth above shall, unless written notice to the contrary is given
by the Pledgee to the Limited Liability Company, be complied with by the Limited
Liability Company, without further consent by the Pledgor.
The Pledgor hereby requests the Limited Liability Company to
indicate the Limited Liability Company's acceptance of this Notice and consent
to and confirmation of its terms and provisions by signing a copy hereof where
indicated on the attached page and returning the same to the Pledgee on behalf
of the Secured Creditors.
[NAME OF PLEDGOR]
By
---------------------------------------
Name:
Title:
30
ANNEX H
to
PLEDGE AGREEMENT
FORM OF LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
[NAME OF PLEDGED LIMITED LIABILITY COMPANY] (the "Limited
Liability Company") hereby acknowledges receipt of a copy of the assignment by
[NAME OF PLEDGOR] ("Pledgor") of its interest under the [TITLE OF APPLICABLE
LIMITED LIABILITY COMPANY OR OPERATING AGREEMENT] (the "Limited Liability
Company Agreement") pursuant to the terms of the Pledge Agreement, dated as of
May 30, 2000 (as amended, modified or supplemented from time to time in
accordance with the terms thereof, the "Pledge Agreement"), among the Pledgor,
the other pledgors from time to time party thereto and Bankers Trust Company
(the "Pledgee"), as Collateral Agent on behalf of the Secured Creditors
described therein. The undersigned hereby further confirms the registration of
the Pledgor's pledge of its interest to the Pledgee on behalf of the Secured
Creditors on the Limited Liability Company's books.
The Limited Liability Company hereby irrevocably agrees to
comply with the instructions originated by the Pledgee, on behalf of the Secured
Creditors, of the type and at the times referred to in the penultimate paragraph
of the Limited Liability Company Notice dated ___________ __, ____ signed by the
Pledgor, without further consent by the Pledgor. The undersigned further hereby
irrevocably agrees, except upon the prior written consent of the Pledgee, not to
honor any such instructions given by any other person or entity.
Dated:
----------- --, ----
[NAME OF PLEDGED LIMITED LIABILITY COMPANY]
By
----------------------------------------
Name:
Title:
31
ANNEX I
to
PLEDGE AGREEMENT
OFFICE LOCATIONS
I. Universal Compression Holdings, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
II. Universal Compression, Inc.,
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
III. Universal Compression International, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
