PLEDGE AGREEMENT (Xxxxx Trusts)
This PLEDGE AGREEMENT, dated as of July 2, 2002 (together with
all amendments, if any, from time to time hereto, this "Agreement"), is made by
and among EACH OF THE PLEDGORS SIGNATORY HERETO AND EACH ADDITIONAL PARTY THAT
BECOMES A PLEDGOR HERETO PURSUANT TO SECTION 21 HEREOF (together with their
respective successors and assigns, collectively, "Pledgors" and each
individually, "Pledgor"), and GENERAL ELECTRIC CAPITAL CORPORATION, in its
capacity as Agent ("Agent") for itself and the lenders from time to time party
to the Credit Agreement referred to below ("Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as
of the date hereof, by and among Xxxxx International Enterprises Corp., a New
York corporation ("Xxxxx") and Blue Ridge Textile Manufacturing Inc., a Georgia
corporation ("Blue Ridge") (Xxxxx and Blue Ridge are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"); the
other Credit Parties signatory thereto; General Electric Capital Corporation,
for itself, as Lender, and as Agent for Lenders, and the other Lenders signatory
thereto from time to time (including all annexes, exhibits and schedules
thereto, as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur the Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgors are the respective record and beneficial
owners of the Pledged Shares listed in Part A of Schedule I hereto and the
respective owners of the Pledged Indebtedness listed in Part B of Schedule I;
WHEREAS, Pledgors collectively own all of the capital stock of
Xxxxx and indirectly owns all of the capital stock of the other Credit Parties
and will directly or indirectly benefit from the credit facilities made
available to Borrowers under the Credit Agreement; and
WHEREAS, in order to induce Agent and Lenders to enter into
the Credit Agreement and the other Loan Documents and to induce Agent and
Lenders to make the Loans and to incur the Letter of Credit Obligations as
provided for in the Credit Agreement, Pledgors have agreed to pledge the Pledged
Collateral to Agent in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained and to induce Lenders to make the Loans and to
incur the Letter of Credit Obligations under the Credit Agreement, it is agreed
as follows:
1. Definitions. Unless otherwise defined herein, terms defined
in the Credit Agreement or in Annex A thereto are used herein (including the
recitals hereof) as therein defined, and the following shall have the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as
amended from time to time, and any successor statute thereto.
"Operating Agreement" means each limited liability company
agreement, operating agreement or similar agreement identified on Part A of
Schedule I hereto relating to Pledged Shares consisting of a membership interest
in a limited liability company, in each case, as amended, supplemented or
otherwise modified from time to time.
"Pledged Collateral" has the meaning assigned to such term in
Section 2 hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means, with respect to any Pledgor or
Pledgors, the Indebtedness evidenced by promissory notes and instruments listed
on Part B of Schedule I hereto.
"Pledged Shares" means, with respect to any Pledgor or
Pledgors, those shares of Stock held by such Pledgor or Pledgors listed on Part
A of Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term
in Section 3 hereof.
2. Pledge. Each Pledgor hereby pledges to Agent, and grants to
Agent (i) for itself and the benefit of the holders of A Obligations, a first
priority security interest in all of the following and (ii) the for benefit of
the holders of B Obligations, a second priority security interest in all of the
following (collectively, the "Pledged Collateral"):
(a) such Pledgor's Pledged Shares and the certificates
representing such Pledged Shares, and all dividends, distributions,
cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed and to the extent
applicable, allocations of profit and losses in respect of or in
exchange for any or all of such Pledged Shares;
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(b) any additional shares of Stock, or other right, title
or interest in, any Credit Party from time to time acquired by such
Pledgor in any manner (which shares shall be deemed to be part of such
Pledgor's Pledged Shares), and any certificates representing such
Stock, and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such Stock;
(c) such Pledgor's Pledged Indebtedness and the promissory
notes or instruments evidencing such Pledged Indebtedness, and all
interest, cash, instruments and other property and assets from time to
time received, receivable or otherwise distributed in respect of such
Pledged Indebtedness; and
(d) all additional Indebtedness arising after the date
hereof and owing to such Pledgor by any Credit Party (which
Indebtedness shall be deemed to be part of such Pledgor's Pledged
Indebtedness) evidenced by promissory notes or other instruments,
together with such promissory notes and instruments, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of such
Pledged Indebtedness.
3. Security for Obligations; Delivery of Pledged Collateral.
(a) This Agreement secures, and the Pledged Collateral is
security for, the prompt payment in full when due, whether at stated
maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit
Agreement and the other Loan Documents and all obligations of Pledgors
now or hereafter existing under this Agreement including, without
limitation, all fees, costs and expenses whether in connection with
collection actions hereunder or otherwise (collectively, the "Secured
Obligations").
(b) All certificates and all promissory notes and
instruments evidencing the Pledged Collateral shall be delivered to and
held by or on behalf of Agent, for itself and the benefit of Lenders,
pursuant hereto. All Pledged Shares evidenced by certificates shall be
accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to Agent and all
promissory notes or other instruments evidencing the Pledged
Indebtedness shall be endorsed by the applicable Pledgor, in form and
substance reasonably satisfactory to Agent. Each Pledgor has caused
each such Pledged Entity to record on its books and records the pledge
created hereby and to execute and deliver the Acknowledgment and
Consent in the form of Schedule III hereto. Each Pledgor hereby
authorizes Agent to attach each Pledge Amendment to this Agreement and
agrees that all Pledged Shares and Pledged Indebtedness listed on
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any Pledge Amendment delivered to Agent shall for all purposes
hereunder be considered Pledged Collateral.
4. Pledgor hereby authorizes and instructs each Pledged Entity
listed on Part A of Schedule I hereto to comply with any instruction received by
it from Agent without any further order or further consent or instructions from
Pledgor and Pledgor agrees that each Pledged Entity shall be fully protected in
so complying.
5. Representations and Warranties. Each Pledgor represents and
warrants to Agent that:
(a) Such Pledgor is, and at the time of its pledge of any
Pledged Collateral hereunder will be, the sole holder of record and the
sole beneficial owner of such Pledged Collateral free and clear of any
Lien thereon or affecting the title thereto, except for (i) any Lien
created by this Agreement, (ii) a pledge in favor of M&T Bank & Trust
Co. ("M&T"), f/k/a OnBank & --- Trust Co., to secure payment of a
Promissory Note dated August 3, 1995, made by J. Xxxxxxx Xxxxx in the
principal amount of $1,285,161.57, payable August 3, 2003, with
interest at 10% per annum, (iii) Lien in favor of Xxxxxx X. XxxxxxXxxxx
to secure payment of Promissory Note dated September 27, 1996, made by
J. Xxxxxxx Xxxxx in the principal amount of $62,678.41, which note is
due August 3, 2003, with interest at 10% per annum; and (iv) the
statutory Lien of the Internal Revenue Service for potential estate tax
liabilities under the estate of J. Xxxxxxx Xxxxx;
(b) All of the Pledged Shares have been duly authorized,
validly issued and are fully paid and non-assessable; the Pledged
Indebtedness has been duly authorized, authenticated or issued and
delivered by, and is the legal, valid and binding obligations of, the
Pledged Entities, and no such Pledged Entity is in default thereunder;
(c) Such Pledgor has the right and requisite authority to
pledge, assign, transfer, deliver, deposit and set over the Pledged
Collateral pledged by such Pledgor to Agent as provided herein;
(d) None of the Pledged Collateral has been issued or
transferred in violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such issuance
or transfer may be subject;
(e) All of the Pledged Shares are presently owned by such
Pledgor and are presently represented by the certificates as listed on
Part A of Schedule I hereto. As of the date hereof, there are no
existing options, warrants, calls, purchase rights or commitments of
any character whatsoever relating to the Pledged Shares;
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(f) No consent, approval, authorization or other order or
other action by, and no notice to or filing with, any Governmental
Authority or any other Person is required (i) for the pledge by such
Pledgor of its Pledged Collateral pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by such Pledgor,
or (ii) for the exercise by Agent of the voting or other rights
provided for in this Agreement or the remedies in respect of such
Pledgor's Pledged Collateral pursuant to this Agreement, except as may
be required in connection with such disposition by laws affecting the
offering and sale of securities generally;
(g) The pledge, assignment and delivery of such Pledgor's
Pledged Collateral pursuant to this Agreement will create (i) a valid
first priority Lien on and a first priority perfected security interest
in favor of the Agent for the benefit of Agent and holders of A
Obligations in such Pledged Collateral and (ii) a valid second priority
Lien on and a second priority perfected security interest in favor of
Agent for the benefit of the holders of B Obligations the proceeds
thereof, securing the payment of the Secured Obligations, subject to no
other Lien;
(h) Each Pledgor is a trust duly organized and validly
existing under the laws of its respective jurisdiction of organization
and is in compliance with the respective agreement of trust which
created such trust (each, a "Trust Agreement") and the trustees of each
Pledgor have all requisite trust powers and authority to enter into,
execute and deliver this Agreement];
(i) The execution, delivery and performance by each Pledgor
of this Agreement and the creation of all Liens provided for therein:
(a) are within such Person's trust power; (b) have been duly and
validly authorized by all necessary action on the part of the trustees
of such trust; (c) do not contravene any provision of such Person's
Trust Agreement; (d) do not violate any law or regulation, or any order
or decree of any court or Governmental Authority; (e) do not conflict
with or result in the breach or termination of, constitute a default
under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement
or other instrument to which such Person is a party or by which such
Person or any of its property is bound; (f) do not result in the
creation or imposition of any Lien upon any of the property of such
Person other than those in favor of Agent, on behalf of itself and
Lenders, pursuant to this Agreement; and (g) do not require the consent
or approval of any Governmental Authority or any other Person. This
Agreement has been duly executed and delivered by such Pledgor and
constitutes a legal, valid and binding obligation of each Pledgor
enforceable against it in accordance with its terms;
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(j) Such Pledgor's Pledged Shares together with the Pledged
Shares of the other Pledgor's hereto constitute 100% of the issued and
outstanding shares of Stock of each Pledged Entity;
(k) No Pledgor is an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940. No Pledgor is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, or
any other federal or state statute that restricts or limits its ability
to incur Indebtedness or to perform its obligations hereunder.
(l) No Pledgor is engaged, nor will it engage, principally or
as one of its important activities, in the business of extending credit
for the purpose of "purchasing" or "carrying" any "margin stock" as
such terms are defined in Regulation U of the Federal Reserve Board as
now and from time to time hereafter in effect. No Pledgor owns any
Margin Stock, and none of the proceeds of the Loans or other extensions
of credit under the Loan Documents will be used, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock,
for the purpose of reducing or retiring any Indebtedness that was
originally incurred to purchase or carry any Margin Stock or for any
other purpose that might cause any of the Loans or other extensions of
credit under the Loan Documents to be considered a "purpose credit"
within the meaning of Regulations T, U or X of the Federal Reserve
Board. No Pledgor will take or permit to be taken any action that might
cause any Loan Document to violate any regulation of the Federal
Reserve Board;
(m) All Tax Returns to be filed by any Pledgor have been filed
with the appropriate Governmental Authority, all such Tax Returns are
true, correct and complete in all material respects, and all Charges
have been paid prior to the date on which any fine, penalty, interest
or late charge may be added thereto for nonpayment thereof (or any such
fine, penalty, interest, late charge or loss has been paid). There are
no Liens for charges (other than current charges not yet due and
payable) upon the assets of any Pledgor. No adjustment relating to such
Tax Returns has been proposed formally or informally by any
Governmental Authority and to the knowledge of each Pledgor, no basis
exists for any such adjustments. None of the Pledgors are liable for
any Charges: (a) under any agreement (including any tax sharing
agreements) or (b) to each Pledgor's knowledge, as a transferee. As of
the Closing Date, no Pledgor has agreed or been requested to make any
adjustment under IRC Section 481(a), by reason of a change in
accounting method or otherwise;
(n) No broker or finder brought about the obtaining, making or
closing of the Loans or the Related Transactions, and no Pledgor or
Affiliate
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thereof has any obligation to any Person in respect of any finder's or
brokerage fees in connection therewith;
(o) No action, claim, lawsuit, demand, investigation or
proceeding is now pending or, to the knowledge of any Pledgor,
threatened against any Pledgor, before any Governmental Authority or
before any arbitrator or panel of arbitrators (collectively,
"Litigation") (a) that challenges any Pledgor's right or power to enter
into or perform any of its obligations under this Agreement or any
other Loan Document to which it is a party, or the validity or
enforceability of any Related Transaction Document or any action taken
thereunder; and
(p) None of such Pledgor's Pledged Indebtedness is
subordinated in right of payment to other Indebtedness (except for the
Secured Obligations) or subject to the terms of an indenture.
(q) The foregoing notwithstanding, it is understood that
10,725 Class B Common Shares, 3,362 Class A Preferred Shares, and 719 Class B
Preferred Shares are subject to Liens in favor of M&T and Xxxxxx XxxxxxXxxxx to
secure payment of the J. Xxxxxxx Xxxxx promissory notes described at Section
5(a)(ii) and (iii) above, and that certificates representing such shares are in
the possession of M&T.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Each Pledgor covenants and agrees that until the
Termination Date:
(a) Without the prior written consent of Agent, no Pledgor
will sell, assign, transfer, pledge, or otherwise encumber any of its
rights in or to the Pledged Collateral, or any unpaid dividends,
interest or other distributions or payments with respect to the Pledged
Collateral or xxxxx x Xxxx in the Pledged Collateral, unless, in each
case, otherwise expressly permitted by this Agreement;
(b) Each Pledgor will, at its expense, (a) promptly execute,
acknowledge and deliver all such instruments and take all such actions
as Agent from time to time may request in order to ensure to Agent and
Lenders the benefits of the Liens in and to the Pledged Collateral
intended to be created by this Agreement, including the filing of any
necessary Code financing statements, which may be filed by Agent with
or (to the extent permitted by law) without the signature of such
Pledgor, and (b) will cooperate with Agent, at such Pledgor's expense,
in obtaining all necessary approvals and making all necessary filings
under federal, state, local or foreign law in connection with such
Liens or any sale or transfer of the Pledged Collateral;
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(c) Each Pledgor has and will defend the title to the Pledged
Collateral pledged by it and the Liens of Agent in such Pledged
Collateral against the claim of any Person and will maintain and
preserve such Liens;
(d) Each Pledgor will, upon obtaining ownership of any
additional Stock or promissory notes or instruments of any Credit Party
or any other Subsidiaries, which Stock, notes or instruments are not
already Pledged Collateral, promptly (and in any event within three (3)
Business Days) deliver to Agent a Pledge Amendment, duly executed by
such Pledgor, in substantially the form of Schedule II hereto (a
"Pledge Amendment") in respect of any such additional Stock, notes or
instruments, pursuant to which such Pledgor shall pledge to Agent all
of such additional Stock, notes and instruments. Each Pledgor hereby
authorizes Agent to attach each Pledge Amendment to this Agreement and
agrees that all Pledged Shares and Pledged Indebtedness listed on any
Pledge Amendment delivered to Agent shall for all purposes hereunder be
considered Pledged Collateral; and Pledgor shall not permit any
amendments to the Pledged Entity's certificate of incorporation,
by-laws, operating agreements or other organizational or governing
documents without the prior written consent of Agent;
(e) Each Pledgor shall comply with all federal, state, local
and foreign laws and regulations applicable to it except to the extent
that such non-compliance will have a de minimis impact on such Pledgor
and its ability to perform under this Agreement or any other Loan
Document;
(f) No Pledgor shall (a) change its name as it appears in
official filings in the state of its organization (b) change the type
of entity that it is, (c) change its organization identification
number, if any, issued by its state of incorporation or other
organization, or (d) change its state of organization, in each case
without at least 30 days prior written notice to Agent and after
Agent's written acknowledgment that any reasonable action requested by
Agent in connection therewith, including to continue the perfection of
any Liens in favor of Agent, on behalf of Lenders, in any Collateral,
has been completed or taken, and provided, that any such new location
shall be in the continental United States;
The covenants set forth in this Section 6 shall survive the
execution and delivery of this Agreement.
7. Pledgors' Rights. As long as no Default or Event of Default
shall have occurred and be continuing and until written notice shall be given to
Pledgors in accordance with Section 8(a) hereof:
(a) Pledgors shall have the right, from time to time, to vote
and give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not inconsistent with the provisions of this
Agreement, the Credit
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Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part,
of a Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with
any other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares, the
stated capital or the authorized share capital of a Pledged Entity or
the issuance of any additional shares of such Pledged Entity's Stock or
the issuance of any other interests convertible into or granting the
right to purchase or receive any additional shares of stock; or
(v) the alteration of the voting rights with respect to
the Stock of a Pledged Entity;
(b)
(i) Pledgors shall be entitled, from time to time, to
collect and receive for its own use all cash dividends, other
distributions and interest paid in respect of the Pledged Collateral to
the extent not in violation of the Credit Agreement or any other Loan
Document other than any and all: (A) dividends, other distributions and
interest paid or payable other than in cash in respect of any Pledged
Collateral, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Pledged
Collateral; (B) dividends and other distributions paid or payable in
cash in respect of any Pledged Shares in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in capital of a Pledged Entity; and
(C) cash paid, payable or otherwise distributed, in respect of
principal of, or in redemption of, or in exchange for, any Pledged
Collateral which is not expressly permitted by the Credit Agreement;
provided, however, that until actually paid all rights to such
distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends, other distributions and interest
(other than such cash dividends, other distributions and interest as
are permitted to be
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paid to Pledgors in accordance with clause (i) above) in respect of any
of the Pledged Shares or Pledged Indebtedness, whenever paid or made,
shall be delivered to Agent to hold as Pledged Collateral and shall, if
received by any Pledgor, be received in trust for the benefit of Agent,
be segregated from the other property or funds of such Pledgor, and be
forthwith delivered to Agent as Pledged Collateral in the same form as
so received (with any necessary endorsement).
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default or a
violation of this Agreement and during the continuation of such Event
of Default or violation of this Agreement, and concurrently with
written notice to Pledgors, Agent (personally or through an agent) is
hereby authorized and empowered to transfer and register in its name or
in the name of its nominee the whole or any part of the Pledged
Collateral, to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations, to exercise the voting and all other
rights as a holder with respect thereto, to collect and receive all
cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of
the time and place of any public sale or of the time at which a private
sale is to take place (which notice Pledgors agree is commercially
reasonable) the whole or any part of the Pledged Collateral and to
otherwise act with respect to the Pledged Collateral as though Agent
was the outright owner thereof. Any sale shall be made at a public or
private sale at Agent's place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future
delivery at such price as Agent may deem fair, and Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of
Pledgors or any right of redemption. Each sale shall be made to the
highest bidder, but Agent reserves the right to reject any and all bids
at such sale which, in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically
provided for, 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 or agent of Agent. EACH
PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY
AND ATTORNEY-IN-FACT OF SUCH PLEDGOR WITH RESPECT TO THE PLEDGED
COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES FOLLOWING
THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT OR A
VIOLATION OF THIS AGREEMENT, WITH FULL POWER OF SUBSTITUTION TO DO SO.
THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH
AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE TERMINATION DATE. IN
ADDITION TO THE RIGHT TO VOTE THE PLEDGED SHARES, THE APPOINTMENT OF
AGENT AS PROXY AND
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ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS,
POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES
WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS OR MEMBERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS OR
MEMBERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE,
AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY
TRANSFER OF ANY PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF)
BY ANY PERSON (INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR
AGENT THEREOF), UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT
OF DEFAULT OR VIOLATION OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING,
AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE
SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN
DOING SO.
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if there
be but one sale, shall be inadequate to discharge in full all the Secured
Obligations, or if the Pledged 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 Agent, in its discretion, that the proceeds of the sales of the
whole of the Pledged Collateral would be unlikely to be sufficient to
discharge all the Secured Obligations, Agent may, on one or more occasions
and in its discretion, postpone any of said sales by public announcement at
the time of sale or the time of previous postponement of sale, and no other
notice of such postponement or postponements of sale need be given, any
other notice being hereby waived; provided, however, that -------- -------
any sale or sales made after such postponement shall be after ten (10)
days' notice to Pledgors.
(c) If, at any time when Agent in its sole discretion
determines, following the occurrence and during the continuance of an Event
of Default or a violation of the Agreement, that, in connection with any
actual or contemplated exercise of its rights (when permitted under this
Section 8) to sell the whole or any part of the Pledged Collateral
hereunder, it is necessary or advisable to effect a public registration of
all or part of the Pledged Collateral pursuant to the Securities Act of
1933, as amended (or any similar statute then in effect) (the "Act"),
Pledgors shall, in an expeditious manner, cause the Pledged Entities listed
on Part A and Part B of Schedule I to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to the
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Pledged Collateral and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the
provisions of the Act with respect to the sale or other disposition of
the Pledged Collateral covered by such registration statement whenever
Agent shall desire to sell or otherwise dispose of the Pledged
Collateral;
(iii) Furnish to Agent such numbers of copies of a
prospectus and a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as Agent may request
in order to facilitate the public sale or other disposition of the
Pledged Collateral by Agent;
(iv) Use commercially reasonable efforts to register
or qualify the Pledged Collateral covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions within the United States and Puerto Rico as Agent shall
request, and do such other reasonable acts and things as may be
required of it to enable Agent to consummate the public sale or other
disposition in such jurisdictions of the Pledged Collateral by Agent;
(v) Furnish, at the request of Agent, on the date
that the Pledged Collateral is delivered to the underwriters for sale
pursuant to such registration or, if the security is not being sold
through underwriters, on the date that the registration statement with
respect to such Pledged Collateral becomes effective, (A) an opinion,
dated such date, of the independent counsel representing such
registrant for the purposes of such registration, addressed to the
underwriters, if any, and in the event the Pledged Collateral are not
being sold through underwriters, then to Agent, in customary form and
covering matters of the type customarily covered in such legal
opinions; and (B) a comfort letter, dated such date, from the
independent certified public accountants of such registrant, addressed
to the underwriters, if any, and in the event the Pledged Collateral
are not being sold through underwriters, then to Agent, in a customary
form and covering matters of the type customarily covered by such
comfort letters and as the underwriters or Agent shall reasonably
request. The opinion of counsel referred to above shall additionally
cover such other legal matters with respect to the registration in
respect of which such opinion is being given as Agent may reasonably
request. The letter referred to above from the independent certified
public accountants shall additionally cover such other financial
matters (including information as to the period ending not more than
five (5) Business Days prior to the date of such letter) with respect
to the registration in respect of which such letter is being given as
Agent may reasonably request; and
12
(vi) Otherwise use commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably
practicable but not later than 18 months after the effective date of
the registration statement, an earnings statement covering the period
of at least 12 months beginning with the first full month after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c)
hereof, including, without limitation, all registration and filing
fees (including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities
or blue sky laws or any jurisdictions, shall be paid by Pledgors.
(e) If, at any time when Agent shall determine to exercise
its right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under
the Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, 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, Agent in its discretion (x) may,
in accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could
be or shall have been filed under said Act (or similar statute), (y)
may approach and negotiate with a single possible purchaser to effect
such sale, and (z) may restrict such sale to a purchaser who is an
accredited investor under the Act and 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
Collateral or any part thereof. In addition to a private sale as
provided above in this Section 8, if any of the Pledged Collateral
shall not be freely distributable to the public without registration
under the Act (or similar statute) at the time of any proposed sale
pursuant to this Section 8, then Agent shall not be required to effect
such registration or cause the same to be effected but, in its
discretion (subject only to applicable requirements of law), may
require that any sale hereunder (including a sale at auction) be
conducted subject to restrictions:
(i) as to the financial sophistication and ability
of any Person permitted to bid or purchase at any such sale;
13
(ii) as to the content of legends to be placed upon
any certificates representing the Pledged Collateral sold in such
sale, including restrictions on future transfer thereof;
(iii) 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 any Pledgor and such
Person's intentions as to the holding of the Pledged Collateral so
sold for investment for its own account and not with a view to the
distribution thereof; and
(iv) as to such other matters as Agent may, in its
discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in
compliance with the Bankruptcy Code and other laws affecting the
enforcement of creditors' rights and the Act and all applicable state
securities laws.
(f) Pledgors recognize that Agent may be unable to effect a
public sale of any or all the Pledged Collateral and may be compelled
to resort to one or more private sales thereof in accordance with
clause (e) above. Pledgors also acknowledge that any such private sale
may result in prices and other terms less favorable to the seller than
if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall not be deemed
to have been made in a commercially unreasonable manner solely by
virtue of such sale being private. Agent shall be under no obligation
to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit the Pledged Entity to register such
securities for public sale under the Act, or under applicable state
securities laws, even if the applicable Pledgor and the Pledged Entity
would agree to do so.
(g) Each Pledgor agrees to the maximum extent permitted by
applicable law that following the occurrence and during the
continuance of an Event of Default or a violation of this Agreement 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 Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and each Pledgor waives the benefit of all such
laws to the extent it lawfully may do so. Each Pledgor agrees that it
will not interfere with any right, power and remedy of Agent 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 Agent of any one or more of such rights, powers or
remedies. No failure or delay on the part of Agent to exercise any
such right, power or remedy and no notice or demand which may be given
to or made upon any Pledgor by Agent with respect to any such remedies
shall operate as a waiver
14
thereof, or limit or impair Agent's right to take any action or to
exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against any Pledgor in any respect.
(h) Each Pledgor further agrees that a breach of any of the
covenants contained in this Agreement will cause irreparable injury to
Agent, that Agent shall have no adequate remedy at law in respect of
such breach and, as a consequence, agrees that each and every covenant
contained in this Agreement shall be specifically enforceable against
each Pledgor, and each Pledgor hereby waives and agrees not to assert
any defenses against an action for specific performance of such
covenants except for a defense that the Secured Obligations are not
then due and payable in accordance with the agreements and instruments
governing and evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of
sale, Lien, option or other right hereunder, and no notice or demand which may
be given to or made upon any Pledgor by Agent with respect to any power of sale,
Lien, option or other right hereunder, shall constitute a waiver thereof, or
limit or impair Agent's right to take any action or to exercise any power of
sale, Lien, option, or any other right hereunder, without notice or demand, or
prejudice Agent's rights as against any Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any
instrument evidencing all or any part of the Secured Obligations as provided in,
and in accordance with, the Credit Agreement, and the holder of such instrument
shall be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date,
Agent shall deliver to each Pledgor the Pledged Collateral pledged by such
Pledgor at the time subject to this Agreement and all instruments of assignment
executed in connection therewith, free and clear of the Liens hereof and, except
as otherwise provided herein, all of Pledgors' obligations hereunder shall at
such time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all
obligations of Pledgors hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
15
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party or Pledgor; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Pledgor.
13. Release. Each Pledgor, in its capacity as Pledgor, consents and
agrees that Agent may at any time, or from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such manner
and upon such terms as Agent may deem proper, and without notice to or
further assent from Pledgors, it being hereby agreed that Pledgors shall be
and remain bound upon this Agreement, irrespective of the value or
condition of any of the Collateral, and notwithstanding any such change,
exchange, settlement, compromise, surrender, release, renewal or extension,
and notwithstanding also that the Secured Obligations may, at any time,
exceed the aggregate principal amount thereof set forth in the Credit
Agreement, or any other agreement governing any Secured Obligations.
Pledgors hereby waive notice of acceptance of this Agreement, and also
presentment, demand, protest and notice of dishonor of any and all of the
Secured Obligations, and promptness in commencing suit against any party
hereto or liable hereon, and in giving any notice to or of making any claim
or demand hereunder upon Pledgors. No act or omission of any kind on
Agent's part shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Credit Party, Pledgor or any Pledged Entity for liquidation or
reorganization, should any Credit Party, Pledgor or any Pledged Entity become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of any Credit
Party, Pledgor's or any Pledged Entity's assets, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event
16
that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel concerning
all matters pertaining to its duties hereunder.
(b) Pledgors jointly and severally agree to promptly reimburse
Agent for actual out-of-pocket expenses, including, without limitation,
reasonable counsel fees, incurred by Agent in connection with the
administration and enforcement of this Agreement.
(c) Neither Agent nor any Lender or any of its respective
officers, directors, employees, agents or counsel shall be liable for any
action lawfully taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or
willful misconduct as finally determined by a court of competent
jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT
OF EACH PLEDGOR AND AGENT AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
(INCLUDING IN THE CASE OF ANY PLEDGOR A DEBTOR-IN-POSSESSION ON BEHALF OF
SUCH PLEDGOR). NO PLEDGOR MAY ASSIGN, SELL, HYPOTHECATE OR OTHERWISE
TRANSFER ANY INTEREST IN OR OBLIGATION UNDER THIS AGREEMENT WITHOUT THE
PRIOR EXPRESS WRITTEN CONSENT OF AGENT. NO SALES OF PARTICIPATIONS, OTHER
SALES, ASSIGNMENTS, TRANSFERS OR OTHER DISPOSITIONS OF ANY AGREEMENT
GOVERNING OR INSTRUMENT EVIDENCING THE SECURED OBLIGATIONS OR ANY PORTION
THEREIN OR INTEREST THEREON SHALL IN ANY MANNER IMPAIR THE LIEN GRANTED TO
AGENT FOR ITS AND LENDERS BENEFIT HEREUNDER.
(e) THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH
PLEDGOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND
17
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN PLEDGORS, AGENT AND LENDERS
PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND THE PLEDGORS ACKNOWLEDGE
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY X XXXXX XXXXXXX
XXXXXXX XX XXX XXXX XXXXXX; PROVIDED FURTHER, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT
OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH PLEDGOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH PLEDGOR HEREBY WAIVES ANY OBJECTION
THAT SUCH PLEDGOR MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
EACH PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF
SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS SET FORTH IN ANNEX
A HERETO AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH PLEDGOR'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN
THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
(f) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO
APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY
PLEDGOR ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
18
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED
THERETO.
(g) Agent's or any Lender's failure, at any time or times, to
require strict performance by the Pledgors of any provision of this
Agreement shall not waive, affect or diminish any right of Agent thereafter
to demand strict compliance and performance herewith or therewith. None of
the undertakings, agreements, warranties, covenants and representations of
any Pledgor contained in this Agreement by any Pledgor shall be deemed to
have been suspended or waived by Agent, unless such waiver or suspension is
by an instrument in writing signed by an officer of or other authorized
employee of Agent, and directed to Borrowers specifying such suspension or
waiver.
16. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement. This Agreement is to be
read, construed and applied together with the Credit Agreement and the other
Loan Documents which, taken together, set forth the complete understanding and
agreement of Agent, Lenders and Pledgors with respect to the matters referred to
herein and therein.
17. Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by any other party, or whenever any
of the parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be addressed to
the party to be notified at the address set forth in Annex A attached hereto.
18. Section Titles. The Section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
20. Benefit of Lenders. All security interests granted or
contemplated hereby shall be for the benefit of Agent and the other Lenders, and
all proceeds or payments realized from the Pledged Collateral in accordance
herewith shall be applied to the Obligations in accordance with the terms of the
Credit Agreement.
19
21. Additional Pledgors. The initial Pledgors hereunder shall be the
parties signatories hereto on the date hereof. From time to time subsequent to
the date hereof, additional Subsidiaries of any Pledgor may become parties
hereto, as additional Pledgors (each, an "Additional Pledgor"), by executing a
counterpart of this Agreement substantially in the form of Exhibit A attached
hereto. Upon delivery of any such counterpart to Agent, notice of which is
hereby waived by the Pledgors, each Additional Pledgor shall be a Pledgor and
shall be as fully a party hereto as if such Additional Pledgor were an original
signatory hereto. Each Pledgor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Pledgor hereunder nor by any election of Agent not to cause any Subsidiary
of any Pledgor to become an Additional Pledgor hereunder. This Agreement shall
be fully effective as to any Pledgor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Pledgor hereunder.
22. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
23. Further Assurances. Each Pledgor executing this Agreement agrees
that it shall and shall cause each other Pledgor to, at such Pledgor's expense
and upon request of Agent, duly execute and deliver, or cause to be duly
executed and delivered, to Agent such further instruments and do and cause to be
done such further acts as may be necessary or proper in the reasonable opinion
of Agent to carry out more effectively the provisions and purposes of this
Agreement or any other Loan Document.
24. Advice of Counsel. Each of the parties represents to each other
party hereto that it has discussed this Agreement and, specifically, the
provisions of Section 15(e) and (f), with its counsel.
25. Intercreditor Agreements. The Lenders have agreed, among
themselves, that the Lien created in favor of the holders of A Obligations shall
be prior and superior to any Lien or other interests created in favor of or held
by the holders of the B Obligations in respect of the Collateral, such priority
as between the holders of the A Obligations and the holders of the B
Obligations, shall give the holders of the A Obligations all the rights, powers
and privileges of a first priority secured creditor under the Code, other
applicable law and otherwise in respect of the Collateral, with the rights,
powers and privileges of holders of the B Obligations in respect of the
Collateral being subject to and subordinate to the Lien for the benefit of the
holders of the A Obligations. The application and receipt of Proceeds of
Collateral are subject to the provisions of Section 1.18 of the Credit
Agreement. The Lien priorities provided herein and in the Collateral Documents
shall not be altered or otherwise affected by any modification, renewal,
20
restatement, extension or refinancing of any Obligations. The Lenders
acknowledge and consent to the granting of the Liens on the Collateral as
provided for herein and shall not (and hereby waive any right to) contest in any
proceeding the validity, priority or enforceability of the Lien on the
Collateral of the holders of A Obligations. The provisions of this Section 25
and the rights and benefits hereof shall insure solely to the benefit of the
Lenders and their respective successors and permitted assigns and no other
Person (including, without limitation, the Credit Parties) shall have or be
entitled to assert rights or benefits under this Section 25.
26. Permitted Redemptions. It is contemplated that certain of the
Pledged Shares will be redeemed from time to time by Xxxxx pursuant to a
Redemption Agreement of even date between Pledgors and Xxxxx (the "Redemption
Agreement"). So long as these redemptions are in compliance with the terms and
restrictions of the Redemption Agreement including, without limitation, Section
6, Agent agrees, on reasonable prior notice, to release its Lien on such Pledged
Shares in order to permit such redemptions and shall execute and deliver to the
applicable Pledgor, at such Pledgor's expense, appropriate UCC-3 termination
statements and other releases as reasonably requested by Pledgor.
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
PLEDGORS:
J. XXXXXXX XXXXX REVOCABLE TRUST
By:_________________________________
Name:
Title:
J. XXXXXXX XXXXX INTER VIVOS
IRREVOCABLE TRUST
By:_________________________________
Xxxxxx X. Xxxxx, Trustee
By:_________________________________
Xxxxxxx X. Xxxx, Trustee
By:_________________________________
Xxxxxxx X. XxXxxxxx, Trustee
XXXXXX X. XXXXX VOTING TRUST
By:_________________________________
Xxxxxx X. Xxxxx, Trustee
By:_________________________________
Xxxxxxx X. Xxxx, Trustee
By:_________________________________
Xxxxxxx X. XxXxxxxx, Trustee
TRUSTS OF FBO OF XXXXXX X. XXXXX,
XXXXXX XXXXXX, XXXXX X. XXXXXXX AND
XXXX X. XXXXX, XX. UNDER AUTHORITY
OF THE XXXXXXX XXXXX INTER VIVOS
IRREVOCABLE TRUST
By:_________________________________
Xxxxxx X. Xxxxx, Trustee
By:_________________________________
Xxxxxxx X. Xxxx, Trustee
By:_________________________________
Xxxxxxx X. XxXxxxxx, Trustee
AGENT:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:_________________________________
Name:
Its: Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
CORPORATIONS
-------------------------------------------------------------------------------------------------
Class Number % of
of Stock Cert. of Outstanding
Pledgor Pledged Entity Stock No.(s) Shares Shares
------- -------------- ----- ------ ------ ------
-------------------------------------------------------------------------------------------------
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LIMITED LIABILITY COMPANIES
PART B
PLEDGED INDEBTEDNESS
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is
delivered pursuant to Section 6(d) of the Pledge Agreement referred to below.
All defined terms herein shall have the meanings ascribed thereto or
incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section 5 of the Pledge
Agreement are and continue to be true and correct, both as to the promissory
notes, instruments, Stock pledged prior to this Pledge Amendment and as to the
promissory notes, instruments, Stock pledged pursuant to this Pledge Amendment.
The undersigned further agrees that this Pledge Amendment may be attached to
that certain Pledge Agreement, dated as of [___________ __], 2002, among the
signatories thereto, each as a Pledgor, and General Electric Capital
Corporation, as Agent, (the "Pledge Agreement") and that the Pledged Collateral
listed on this Pledge Amendment shall be and become a part of the Pledged
Collateral referred to in said Pledge Agreement and shall secure all Secured
Obligations referred to in said Pledge Agreement. The undersigned acknowledges
that any promissory notes, instruments, Stock interests not included in the
Pledged Collateral at the discretion of Agent may not otherwise be pledged by
the undersigned to any other Person or otherwise used as security for any
obligations other than the Secured Obligations.
[NAME OF PLEDGOR]
By:________________________
Name:
Title:
PLEDGED SHARES:
--------------------------------------------------------------------------------------------------------------
Name and Class Certificate Number
Address of Pledgor Pledged Entity of Stock Number(s) of Shares
------------------ -------------- -------- ---------- ---------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
PLEDGED SHARES: MEMBERSHIP INTERESTS:
---------------------------------------------------------------------------------------------------------
Description
of Pledged
Limited
Liability
Company
and Number of % of
Operating Cert. of Outstanding
Pledgor Pledged Entity Agreement No.(s) Interests Interests
------- -------------- --------- ------ --------- ---------
---------------------------------------------------------------------------------------------------------
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PLEDGED INDEBTEDNESS
------------------------------------------------------------------------------------------------------------------
Initial Issue Date Maturity Interest Rate
------- ---------- -------- -------------
Maker Principal Amount Date
----- ---------------- ----
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SCHEDULE III
ACKNOWLEDGMENT AND CONSENT
General Electric Capital Corporation
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Account Manager
[Name of Pledged Entity] ("Company") hereby (i) acknowledges
receipt of a fully executed copy of the Pledge Agreement, dated as of
[___________] (the "Agreement"; capitalized terms used herein without definition
have the meanings provided therein), made by [Name of Pledgor] ("Pledgor") and
certain other pledgors in favor of General Electric Capital Corporation, as
Agent ("Agent"); (ii) consents and agrees to the pledge by Pledgor of the
Pledged Collateral pursuant to the Agreement and to all of the other terms and
provisions of the Agreement; (iii) agrees to comply with all instructions
received by it from Agent without further consent by Pledgor; [(iv) irrevocably
waives any breach or default under the Operating Agreement as a result of the
execution, delivery and performance by Pledgor and Agent of the Agreement; (v)
advises Pledgor and Agent that a pledge of the Pledged Stock consisting of
membership interests in limited liability companies set forth on Schedule I to
the Agreement has been registered on the books of Company and in the name of the
Agent and agrees to so register any additional Pledged Stock consisting of a
membership interest in a limited liability company; (vi) represents and warrants
that, except for the pledge in favor of Agent, there are no liens, restrictions
or adverse claims to which the Pledged Collateral is or may be subject as of the
date hereof; (vii) except with the prior written consent of Agent, agrees not to
admit any new Members to Company or any limited liability company to which
Company is a Member;]/1/ and (viii) [(iv)] consents and agrees to any transfer
of the Pledged Collateral pursuant to Section 8 of the Agreement.
IN WITNESS WHEREOF, a duly authorized officer of the undersigned
has executed and delivered this Acknowledgment and Consent as of this ___ day of
_____, 200_
[NAME OF PLEDGED ENTITY]
By:___________________________
Name:
Title:
-------------------
/1/ Insert clauses (iv) to (vii) only for Pledged Entities which are limited
liability companies.
EXHIBIT A
TO
PLEDGE AGREEMENT
COUNTERPART TO PLEDGE AGREEMENT
This counterpart, dated _________, [200__], is delivered pursuant
to Section 21 of that certain Pledge Agreement dated as of [___________ __],
2002 (as from time to time amended, modified or supplemented, the "Pledge
Agreement"; the terms defined therein and not otherwise defined herein being
used as therein defined), among the signatories thereto, as Pledgors, and
General Electric Capital Corporation, as Agent. The undersigned hereby agrees
(i) that this counterpart may be attached to the Pledge Agreement, and (ii) that
the undersigned will comply with and be subject to, including representations
and warranties, all the terms and conditions of the Pledge Agreement as if it
were an original signatory thereto.
[NAME OF ADDITIONAL PLEDGOR]
By:_________________________
Name:
Title:
Annex A
NOTICE ADDRESSES
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
000 Xxxxxxx Xxxxxx, 00 Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: E. Xxxxxx Xxxx, Xxxxx Account Manager
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Paul, Hastings, Xxxxxxxx & Xxxxxx
0000 Xxxxxxxxxx xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(B) If to any Pledgor, at
Xxxxx International Enterprises Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxxxx
Telecopier No.: (000) 000-00000
Telephone No.: (000) 000-0000
with copies to:
Bond, Xxxxxxxxx & Xxxx, LLP
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. XxXxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Xxxxxx Godward LLP
One Freedom Square
Reston Town Center
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
