Exhibit (b)(4)
EXECUTION COPY
SHARE PLEDGE AGREEMENT
This SHARE PLEDGE AGREEMENT, dated as of August 1, 2002 (this
"AGREEMENT"), between EACH OF THE UNDERSIGNED, whether as an original signatory
hereto or as an Additional Grantor (as herein defined) (each, a "GRANTOR"), and
BARCLAYS BANK PLC, as collateral agent for the Secured Parties (as herein
defined) (in such capacity as collateral agent, the "COLLATERAL AGENT").
RECITALS:
WHEREAS, reference is made to that certain Senior Credit Agreement dated
August 1, 2002 (as it may be amended, restated, supplemented, novated or
otherwise modified from time to time, the "CREDIT AGREEMENT"), by and among (i)
Four Seasons Healthcare Limited, a company incorporated in England and Wales
with registered number 3782935 ("PARENT"), (ii) Four Seasons Healthcare Holdings
PLC, a company incorporated in England and Wales with registered number 3806216
("FSHC HOLDCO"), (iii) the companies listed in Schedule 3 thereto (the "INITIAL
GUARANTORS"), (iv) Barclays Bank PLC as mandated lead arranger (the "ARRANGER"),
(v) the financial institutions listed in Schedule 1 thereto (the "LENDERS"),
(vi) Barclays Bank PLC, in its capacity as facility agent for the Lenders under
the Senior Finance Documents (the "FACILITY AGENT"), and (vii) Barclays Bank
PLC, in its capacity as agent and trustee for the Finance Parties under the
Security Documents (the "COLLATERAL AGENT").
WHEREAS, each Grantor is an Obligor under the Credit Agreement and, among
other things, has guaranteed the obligations of the other Obligors under the
Senior Finance Documents pursuant to Clause 17 (Guarantee and Indemnity) of the
Credit Agreement; and
WHEREAS, in consideration of the extensions of credit and other
accommodations of the Finance Parties as set forth in the Credit Agreement and
the other Senior Finance Documents, respectively, each Grantor has agreed to
secure such Grantor's obligations under the Senior Finance Documents as set
forth herein; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, each Grantor and the Collateral Agent
agree as follows:
SECTION 1. DEFINITIONS; GRANT OF SECURITY.
1.1. GENERAL DEFINITIONS. In this Agreement, the following terms shall
have the following meanings:
"AGREEMENT" shall have the meaning set forth in the preamble.
"ADDITIONAL GRANTORS" shall have the meaning assigned in Section 4.3.
"CASH PROCEEDS" shall have the meaning assigned in Section 6.3.
"COLLATERAL" shall have the meaning assigned in Section 1.3.
"COLLATERAL AGENT" shall have the meaning set forth in the preamble.
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"COLLATERAL RECORDS" shall mean (i) all "records" as defined in Article 9
of the UCC and (ii) all books, records, ledger cards, files, correspondence,
customer lists, blueprints, technical specifications, manuals, computer
software, computer printouts, tapes, disks and related data processing software
and similar items that at any time evidence or contain information relating to
any of the Collateral or are otherwise necessary or helpful in the collection
thereof or realization thereupon.
"CREDIT AGREEMENT" shall have the meaning set forth in the recitals.
"GOVERNMENTAL AUTHORITY" shall mean any governmental or regulatory
(including stock exchange) authority, agency, court, commission, body or other
governmental entity.
"GRANTORS" shall have the meaning set forth in the preamble.
"LENDER" shall have the meaning set forth in the recitals.
"OBLIGATIONS" means all obligations of every nature from time to time
owed by any Obligor under any Senior Finance Document, whether for principal,
interest, fees, expenses, indemnification, reimbursement of a drawing under a
Bank Guarantee or otherwise.
"PERMITTED SALE" shall mean those sales, transfers or assignments
permitted by Clause 20.3 (Disposals and security undertakings) of the Credit
Agreement.
"PERSON" shall mean any individual, corporation, general or limited
partnership, limited liability or unlimited liability company, joint venture,
estate, trust, association, organization, Governmental Authority or other entity
of any kind or nature.
"PLEDGED EQUITY INTERESTS" shall mean all Pledged Stock and Pledged LLC
Interests.
"PLEDGED LLC INTERESTS" shall mean, with respect to any Grantor, all
interests in any limited liability company including, without limitation, all
limited liability company interests listed on Schedule 3.2 under the heading
"Pledged LLC Interests" (as such schedule may be amended or supplemented from
time to time) and the certificates, if any, representing such limited liability
company interests of such Grantor and any interest of such Grantor on the books
and records of such limited liability company or on the books and records of any
securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities 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 limited
liability company interests.
"PLEDGED STOCK" shall mean, with respect to any Grantor, all shares of
capital stock issued by any Person owned by such Grantor, including, without
limitation, all shares of capital stock described on Schedule 3.2 under the
heading "Pledged Stock" (as such schedule may be amended or supplemented from
time to time), and the certificates, if any, representing such shares of such
Grantor, any interest in any shareholder agreement relating to such shares of
such Grantor, and any interest of such Grantor in the entries on the books of
the issuer of such shares or on the books of any securities intermediary
pertaining to such shares, and all dividends, distributions, cash, warrants,
rights, options, instruments, securities 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 shares.
"PLEDGE SUPPLEMENT" shall mean any supplement to this agreement in
substantially the form of Exhibit A.
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"PROCEEDS" shall mean: (i) all "proceeds" as defined in Article 9 of the
UCC, (ii) any payments or distributions made with respect to any Pledged Equity
Interests and (iii) whatever is receivable or received when Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
"RECORD" shall have the meaning specified in Article 9 of the UCC.
"SECURED OBLIGATIONS" shall have the meaning assigned in Section 2.1.
"SECURED PARTIES" means the Arranger , each Agent, each Lender, each
Ancillary Lender, each Issuing Lender and each Hedging Lender and shall include,
without limitation, all former such Persons to the extent that any Obligations
owing to such Persons have not been paid or satisfied in full.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TAX CODE" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York or, when the context implies, the Uniform
Commercial Code as in effect from time to time in any other applicable
jurisdiction.
1.2. DEFINITIONS; INTERPRETATION. All capitalized terms used herein
(including the preamble and recitals hereto) and not otherwise defined herein
shall have the meanings ascribed thereto in the Credit Agreement or, if not
defined therein, in the UCC. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect. Any of the
terms defined herein may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference. The use herein of the word
"include" or "including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. If
any conflict or inconsistency exists between this Agreement and the Credit
Agreement, the Credit Agreement shall govern. All references herein to
provisions of the UCC shall include all successor provisions under any
subsequent version or amendment to any Article of the UCC.
1.3. GRANT OF SECURITY. Each Grantor hereby grants to the Collateral
Agent for the ratable benefit of the Secured Parties a security interest and
continuing Security Interests on all of such Grantor's right, title and interest
in, to and under all of the following personal property of such Grantor, in each
case whether now owned or existing or hereafter acquired or arising and wherever
located (all of which being hereinafter collectively referred to as the
"COLLATERAL"):
(a) Pledged Stock;
(b) Pledged LLC Interests;
(c) to the extent not otherwise included above, all Collateral
Records relating to any of the foregoing; and
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(d) to the extent not otherwise included above, all Proceeds,
products, accessions, rents and profits of or in respect of any of the
foregoing.
SECTION 2. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
2.1. SECURITY FOR OBLIGATIONS. This Agreement secures, and the Collateral
of each Grantor is collateral security for, the prompt and complete payment or
performance in full when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including the
payment of amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a) (and any
successor provision thereof), whether or not a claim is allowed against such
Grantor for such amount in the related bankruptcy proceeding), of all
Obligations with respect to such Grantor (the "SECURED OBLIGATIONS"); PROVIDED
THAT anything contained in this Agreement to the contrary notwithstanding, the
Secured Obligations of any Grantor under this Agreement shall be limited to a
maximum aggregate amount equal to the greatest amount that would not render such
Grantor's Secured Obligations subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of such Bankruptcy Code or any applicable
provisions of comparable law of one or more of the states or Governmental
Authorities comprising the United States of America (collectively, the
"FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other
liabilities of such Grantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Grantor (a) in respect of intercompany indebtedness to any Group Company
to the extent that such indebtedness would be discharged in an amount equal to
the amount paid by such Grantor hereunder and (b) under any guarantee of senior
unsecured indebtedness or indebtedness subordinated in right of payment to
obligations of the Obligors outstanding under this Agreement or the Senior
Finance Documents, which guarantee contains a limitation as to maximum amount
similar to that set forth in this proviso pursuant to which the liability of
such Grantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, contribution, reimbursement, indemnity or similar
right of such Grantor pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among such Grantor and other Obligors or
affiliates of the Obligors of obligations arising under the Senior Finance
Documents by such parties.
2.2. GRANTORS REMAIN LIABLE. Anything contained herein to the contrary
notwithstanding, (i) each Grantor shall remain liable under any limited
liability company agreement relating to any Pledged LLC Interest and any
shareholder agreement relating to any Pledged Equity Interest, to the extent set
forth therein, to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed; (ii) the exercise by the
Collateral Agent of any of its rights hereunder shall not release any Grantor
from any of its duties or obligations under the shareholder agreements included
in the Collateral and (iii) neither the Collateral Agent nor any Secured Party
nor any purchaser at a foreclosure sale shall have any obligation or liability
under any limited partnership agreement relating to any Pledged LLC Interests or
any shareholder agreement relating to any Pledged Equity Interests by reason of
this Agreement, nor shall the Collateral Agent or any Secured Party be obligated
to perform any of the obligations or duties of any Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
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SECTION 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS.
3.1. GENERALLY.
(a) REPRESENTATIONS AND WARRANTIES. Each Grantor hereby represents
and warrants that:
(i) it owns the Collateral purported to be owned by it or
otherwise has the rights it purports to have in each item of Collateral
and, as to all Collateral whether now existing or hereafter acquired,
will continue to own or have such rights in each item of the Collateral,
in each case free and clear of any and all Security Interest, rights or
claims of all other Persons;
(ii) the full legal name of such Grantor is as set forth on
Schedule 3.1(A) and it has not done in the last five (5) years, and does
not do, business under any other name (including any trade-name or
fictitious business name) except for those names set forth on Schedule
3.1 (B) (as such schedule may be amended or supplemented from time to
time);
(iii) it has indicated on Schedule 3.1(A) (as such schedule may be
amended or supplemented from time to time): (w) the type of organization
of such Grantor, (x) the jurisdiction of organization of such Grantor,
(y) the chief executive office or sole place of business (or the
principal residence if such Grantor is a natural person) of such Grantor
and (z) the organizational identification number, if any, of such
Grantor;
(iv) except as provided on Schedule 3.1(C), it has not changed its
name, jurisdiction of organization, chief executive office or sole place
of business (or principal residence if such Grantor is a natural person)
or its corporate structure in any way (e.g., by merger, consolidation,
change in corporate form or otherwise) within the past five (5) years;
(v) it has not within the last five (5) years become bound
(whether as a result of merger or otherwise) as debtor under a security
agreement entered into by another Person, which has not heretofore been
terminated other than the agreements identified on Schedule 3.1 (D)
hereof (as such schedule may be amended or supplemented from time to
time);
(vii) upon compliance with the requirements of Section 3.2(c) of
this Agreement, all actions and consents necessary or desirable to
create, perfect or ensure the first priority Security Interests hereunder
have been made or obtained and the security interests granted to the
Collateral Agent hereunder will constitute valid and perfected first
priority Security Interests on all of the Collateral;
(viii) other than the financing statements filed in favor of the
Collateral Agent, no effective UCC financing statement, fixture filing or
other instrument similar in effect under any applicable law covering all
or any part of the Collateral is on file in any filing or recording
office;
(ix) no authorization, approval or other action by, and no notice
to or filing with, any Governmental Authority or regulatory body or other
Person is required for either (i) the pledge or grant by any Grantor of
the Security Interests purported to be created in favor of the Collateral
Agent hereunder or (ii) the exercise by Collateral Agent of any rights or
remedies in respect of any Collateral (whether specifically granted or
created hereunder or created or
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provided for by applicable law), except as may be required, in connection
with the disposition of any Pledged Shares, by laws generally affecting
the offering and sale of securities; and
(x) all information supplied by any Grantor on any schedule to
this Agreement is accurate and complete in all material respects.
(b) COVENANTS AND AGREEMENTS. Each Grantor hereby covenants and
agrees that:
(i) except for the Security Interest created by this Agreement, it
shall not create or suffer to exist any Security Interests upon or with
respect to any of the Collateral, and such Grantor shall defend the
Collateral against all Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used
unlawfully or in violation of any applicable statute, regulation or
ordinance (except any violation that has not had and is not reasonably
likely to have a Material Adverse Effect) or in violation of any policy
of insurance covering the Collateral;
(iii) it shall not change its name, type of organization,
jurisdiction of organization, chief executive office or corporate
structure in any way (e.g., by merger, consolidation, change in corporate
form or otherwise) unless it shall have (a) notified the Collateral Agent
in writing, by executing and delivering to the Collateral Agent a
completed Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules thereto, at
least thirty (30) days (or such lesser time as may be agreed by the
Collateral Agent) prior to any such change or establishment, identifying
such new proposed name, type of organization, jurisdiction of
organization, chief executive office or corporate structure and providing
such other information in connection therewith as the Collateral Agent
may reasonably request and (b) taken all actions necessary or advisable
to maintain the continuous validity, perfection and the same or better
priority of the Collateral Agent's security interest in the Collateral
intended to be granted and agreed to hereby;
(iv) it shall pay promptly when due all property and other taxes,
assessments and governmental charges or levies imposed upon, and all
claims (including claims for labor, materials and supplies) against, the
Collateral, except to the extent the validity thereof is being contested
in good faith; provided, such Grantor shall in any event pay such taxes,
assessments, charges, levies or claims not later than five (5) days prior
to the date of any proposed sale under any judgment, writ or warrant of
attachment entered or filed against such Grantor or any of the Collateral
as a result of the failure to make such payment;
(v) it shall not take or permit any action which could impair the
Collateral Agent's rights in the Collateral; and (vi) it shall not sell,
transfer or assign (by operation of law or otherwise) any Collateral
except as Permitted Sales or as otherwise permitted under the Credit
Agreement.
3.2. PLEDGED EQUITY INTERESTS.
(a) REPRESENTATIONS AND WARRANTIES. Each Grantor hereby represents
and warrants, on the date of this Agreement, the date of each Drawdown Request,
each Drawdown Date and the first day of each Interest Period, that:
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(i) Schedule 3.2(A) (as such schedule may be amended or
supplemented from time to time) sets forth under the heading "Pledged
Stock" and "Pledged LLC Interests," respectively, all of the Pledged
Stock and Pledged LLC Interests owned by any Grantor and such Pledged
Equity Interest constitutes the percentage of issued and outstanding
shares of stock or percentage of membership interests of the respective
issuers thereof indicated on such Schedule;
(ii) it is the record and beneficial owner of the Pledged Equity
Interests free of all Security Interests, rights or claims of other
Persons and there are no outstanding warrants, options or other rights to
purchase, or shareholder, voting trust or similar agreements outstanding
with respect to, or property that is convertible into, or that requires
the issuance or sale of, any Pledged Equity Interests;
(iii) no consent of any Person including any other shareholder is
necessary in connection with the creation, perfection or first priority
status of the security interest of the Collateral Agent in any Pledged
Equity Interests or the exercise by the Collateral Agent of the voting or
other rights provided for in this Agreement or the exercise of remedies
in respect thereof;
(iv) none of the Pledged LLC Interests are or represent interests
in issuers that are : (a) registered as investment companies, (b) are
dealt in or traded on securities exchanges or markets or (c) have opted
to be treated as securities under the uniform commercial code of any
jurisdiction; and
(v) each Grantor has taken all actions necessary or desirable,
including those specified in Section 3.2(c), to: (a) establish the
Collateral Agent's "control" (within the meanings of Sections 8-106 and
9-106 of the UCC) over any portion of the Pledged Equity Interests
constituting Certificated Securities or Uncertificated Securities or
Securities Entitlements (each as defined in the UCC).
(b) COVENANTS AND AGREEMENTS. Each Grantor hereby covenants and
agrees that:
(i) without the prior written consent of the Collateral Agent, it
shall not vote to enable or take any other action to: (a) amend or
terminate any limited liability company agreement, certificate of
incorporation, by-laws or other organizational documents in any way that
adversely affects the validity, perfection or priority of the Collateral
Agent's security interest, (b) waive any default under or the breach of
any terms of any organizational document relating to the issuer of any
Pledged Equity Interest in any way that adversely affects the validity,
perfection or priority of the Collateral Agent's security interest, or
(c) cause any issuer of any Pledged LLC Interests which are not
securities (for purposes of the UCC) on the date hereof to elect or
otherwise take any action to cause such Pledged LLC Interests to be
treated as securities for purposes of the UCC; PROVIDED, however,
notwithstanding the foregoing, if any issuer of any Pledged LLC Interests
takes any such action in violation of the -------- foregoing in this
clause (c), such Grantor shall promptly notify the Collateral Agent in
writing of any such election or action and, in such event, shall take all
steps necessary or advisable to establish the Collateral Agent's
"control" thereof;
(ii) in the event it acquires rights in any Pledged Equity
Interests after the date hereof, it shall deliver to the Collateral Agent
a completed Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules thereto,
reflecting such new Pledged Equity Interests. Notwithstanding the
foregoing, it is understood and
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agreed that the security interest of the Collateral Agent shall attach to
all Pledged Equity Interests immediately upon any Grantor's acquisition
of rights therein and shall not be affected by the failure of any Grantor
to deliver a supplement to Schedule 3.2 as required hereby;
(iii) except as provided in the next sentence or in the Credit
Agreement, in the event such Grantor receives any dividends, interest or
distributions on any Pledged Equity Interest, or any securities or other
property upon the merger, consolidation, liquidation or dissolution of
any issuer of any Pledged Equity Interest, then (a) such dividends,
interest or distributions and securities or other property shall be
included in the definition of Collateral without further action and (b)
such Grantor shall within 10 days take all steps, if any, necessary or
advisable to ensure the validity, perfection, priority and, if
applicable, control of the Collateral Agent over such Pledged Equity
Interests (including, without limitation, delivery thereof to the
Collateral Agent) and pending any such action such Grantor shall be
deemed to hold such dividends, interest, distributions, securities or
other property in trust for the benefit of the Collateral Agent.
Notwithstanding the foregoing, so long as no Event of Default shall have
occurred and be continuing, the Collateral Agent authorizes each Grantor
to retain all ordinary cash dividends and distributions and all payments
of interest;
(iv) it shall comply with all of its obligations under any limited
liability company agreement relating to Pledged LLC Interests;
(v) without the prior written consent of the Collateral Agent, it
shall not permit any issuer of any Pledged Equity Interest to merge or
consolidate unless all the outstanding capital stock or other equity
interests of the surviving or resulting corporation, limited liability
company, partnership or other entity is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other
property is distributed in respect of the outstanding equity interests of
any other constituent company; and
(vi) each Grantor consents to the grant by each other Grantor of a
security interest in all Pledged Equity Interests to the Collateral Agent
and, without limiting the foregoing, consents to the transfer of any
Pledged Equity Interest to the Collateral Agent or its nominee following
an Event of Default and to the substitution of the Collateral Agent or
its nominee as a shareholder or member (as the case may be) with all the
rights and powers related thereto.
(c) DELIVERY AND CONTROL. Each Grantor agrees that with respect to
any Pledged Equity Interests in which it currently has rights it shall comply
with the provisions of this Section 3.2(c) on or before the date hereof and with
respect to any Pledged Equity Interests hereafter acquired by such Grantor it
shall comply with the provisions of this Section 3.2(c) promptly upon acquiring
rights therein, in each case in form and substance satisfactory to the
Collateral Agent. With respect to any Pledged Equity Interest that is
represented by a certificate or that is an "instrument", it shall cause such
certificate or instrument to be delivered to the Collateral Agent, indorsed in
blank by an "effective indorsement" (as defined in Section 8-107 of the UCC),
regardless of whether such certificate constitutes a "certificated security" for
purposes of the UCC. With respect to any Pledged Equity Interest that is an
"uncertificated security" for purposes of the UCC, it shall cause the issuer of
such uncertificated security to either (i) register the Collateral Agent as the
registered owner thereof on the books and records of the issuer or (ii) execute
an agreement substantially in the form of Exhibit B hereto, pursuant to which
such issuer agrees to comply with the Collateral Agent's instructions with
respect to such uncertificated security without further consent by such Grantor.
Upon the occurrence and during the continuance of an Event of Default, the
Collateral Agent shall have the right, without notice to any Grantor, to
transfer all or any portion of the Pledged Equity Interests to its name or the
name of its nominee or agent. In addition, the Collateral
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Agent shall have the right at any time upon the occurrence and during the
continuance of an Event of Default, without notice to any Grantor, to exchange
any certificates or instruments representing any Pledged Equity Interest for
certificates or instruments of smaller or larger denominations.
(d) VOTING AND DISTRIBUTIONS.
(i) So long as no Event of Default shall have occurred and be
continuing:
(A) except as otherwise provided in Section 3.2(b)(i) of this
Agreement or elsewhere herein or in the Credit Agreement, each
Grantor shall be entitled to exercise or refrain from exercising
any and all voting and other consensual rights pertaining to the
Pledged Equity Interests or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the Credit
Agreement; PROVIDED, no Grantor shall exercise or refrain from
exercising any such right if such exercise would constitute a
breach of a representation or obligation under the Credit
Agreement or would adversely affect the validity or enforceability
of this Agreement or the Collateral Agent's rights hereunder or
the transferability of such Pledged Equity Interests or would
adversely affect the validity, perfection or priority of the
Collateral Agent's security interest; it being understood,
however, that neither the voting by such Grantor of any Pledged
Stock for, or such Grantor's consent to, the election of directors
(or similar governing body) at a regularly scheduled annual or
other meeting of stockholders or with respect to incidental
matters at any such meeting, nor such Grantor's consent to or
approval of any action otherwise permitted under this Agreement
and the Credit Agreement, shall be deemed inconsistent with the
terms of this Agreement or the Credit Agreement within the meaning
of this Section 3.2(d)(i)(A), and no notice of any such voting or
consent need be given to the Collateral Agent; and
(B) the Collateral Agent shall promptly execute and deliver (or cause
to be executed and delivered) to each Grantor all proxies, and
other instruments as such Grantor may from time to time reasonably
request for the purpose of enabling such Grantor to exercise the
voting and other consensual rights when and to the extent which it
is entitled to exercise pursuant to clause (A) above;
(ii) Upon the occurrence and during the continuation of an Event
of Default:
(A) all rights of each Grantor to exercise or refrain from exercising
the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant hereto shall cease and all such
rights shall thereupon become vested in the Collateral Agent who
shall thereupon have the sole right to exercise such voting and
other consensual rights; and
(B) in order to permit the Collateral Agent to exercise the voting and
other consensual rights which it may be entitled to exercise
pursuant hereto and to receive all dividends and other
distributions which it may be entitled to receive hereunder: (1)
each Grantor shall promptly execute and deliver (or cause to be
executed and delivered) to the Collateral Agent all proxies,
dividend payment orders and other instruments as the Collateral
Agent may from time to time reasonably request and (2) each
Grantor acknowledges that the Collateral Agent may utilize the
power of attorney set forth in Section 5.
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SECTION 4. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL
GRANTORS.
4.1. ACCESS; RIGHT OF INSPECTION. The Collateral Agent shall at all times
have full and free access during normal business hours and upon reasonable prior
written notice to all the books, correspondence and records of each Grantor, and
the Collateral Agent and its representatives may examine the same, take extracts
therefrom and make photocopies thereof, and each Grantor agrees to render to the
Collateral Agent, at such Grantor's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto. The Collateral
Agent and its representatives shall at all times during normal business hours
upon reasonable prior written notice also have the right to enter any premises
of each Grantor and inspect any property of each Grantor where any of the
Collateral of such Grantor granted pursuant to this Agreement is located for the
purpose of inspecting the same, observing its use or otherwise protecting its
interests therein.
4.2. FURTHER ASSURANCES.
(a) Each Grantor agrees that from time to time, at the expense of
such Grantor, that it shall promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or desirable,
or that the Collateral Agent may reasonably request, in order to create and/or
maintain the validity, perfection or priority of and protect any security
interest granted or purported to be granted hereby or to enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, each Grantor
shall:
(i) file such financing or continuation statements, or amendments
thereto, and execute and deliver such other agreements, instruments,
endorsements, powers of attorney or notices, as may be necessary or
desirable, or as the Collateral Agent may reasonably request, in order to
perfect and preserve the security interests granted or purported to be
granted hereby; and
(ii) at the Collateral Agent's request, appear in and defend any
action or proceeding that may affect such Grantor's title to or the
Collateral Agent's security interest in all or any part of the
Collateral.
(b) Each Grantor hereby authorizes the Collateral Agent to file a
Record or Records, including, without limitation, financing or continuation
statements, and amendments thereto, in all jurisdictions and with all filing
offices as the Collateral Agent may reasonably determine, in its sole
discretion, are necessary or advisable to perfect the security interest granted
to the Collateral Agent herein. Such financing statements may describe the
Collateral in the same manner as described herein or may contain an indication
or description of collateral that describes such property in any other manner as
the Collateral Agent may determine, in its sole discretion, is necessary,
advisable or prudent to ensure the perfection of the security interest in the
Collateral granted to the Collateral Agent herein. Each Grantor shall furnish to
the Collateral Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.
4.3. ADDITIONAL GRANTORS. From time to time subsequent to the date
hereof, additional Persons may become parties hereto as additional Grantors
(each, an "ADDITIONAL GRANTOR"), by executing a counterpart to this agreement by
which it agrees to be bound hereby as though it were an original signatory
hereto and provides supplements to the schedules hereto with respect to itself
and its Collateral. Upon delivery of any such Counterpart Agreement to the
Collateral Agent, notice of which is
10
hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall
be as fully a party hereto as if such Additional Grantor were an original
signatory hereto. Each Grantor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Grantor hereunder, nor by any election of the Collateral Agent not to
cause any Subsidiary of any Borrower to become an Additional Grantor hereunder.
This Agreement shall be fully effective as to any Grantor that is or becomes a
party hereto regardless of whether any other Person becomes or fails to become
or ceases to be a Grantor hereunder.
SECTION 5. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.
5.1. POWER OF ATTORNEY. Each Grantor hereby irrevocably appoints the
Collateral Agent (such appointment being coupled with an interest) as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from
time to time in the Collateral Agent's discretion to take any action and to
execute any instrument that the Collateral Agent may deem reasonably necessary
or advisable to accomplish the purposes of this Agreement, including, without
limitation, the following:
(a) upon the occurrence and during the continuance of any Event of
Default, to obtain and adjust insurance required to be maintained by such
Grantor or paid to the Collateral Agent pursuant to the Credit Agreement;
(b) upon the occurrence and during the continuance of any Event of
Default, to ask for, demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(c) upon the occurrence and during the continuance of any Event of
Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (b) above;
(d) upon the occurrence and during the continuance of any Event of
Default, to file any claims or take any action or institute any proceedings that
the Collateral Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Collateral Agent
with respect to any of the Collateral;
(e) to prepare and file any UCC financing statements against such Grantor
as debtor;
(f) to take or cause to be taken all actions necessary to perform or
comply or cause performance or compliance with the terms of this Agreement,
including, without limitation, access to pay or discharge taxes or Security
Interests levied or placed upon or threatened against the Collateral, the
legality or validity thereof and the amounts necessary to discharge the same to
be determined by the Collateral Agent in its sole discretion, any such payments
made by the Collateral Agent to become obligations of such Grantor to the
Collateral Agent, due and payable immediately without demand;
(g) upon the occurrence and during the continuance of an Event of
Default, generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as though
the Collateral Agent were the absolute owner thereof for all purposes; and
11
(h) to do, at the Collateral Agent's option and such Grantor's
expense, at any time or from time to time, all acts and things that the
Collateral Agent deems reasonably necessary to protect, preserve or realize upon
the Collateral and the Collateral Agent's security interest therein in order to
effect the intent of this Agreement, all as fully and effectively as such
Grantor might do.
5.2. NO DUTY ON THE PART OF COLLATERAL AGENT OR SECURED PARTIES. The
powers conferred on the Collateral Agent hereunder are solely to protect the
interests of the Secured Parties in the Collateral and shall not impose any duty
upon the Collateral Agent or any Secured Party to exercise any such powers. The
Collateral Agent and the Secured Parties shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers, and
neither they nor any of their or their affiliates' officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or wilful misconduct.
SECTION 6. REMEDIES.
6.1. GENERALLY.
(a) If any Event of Default shall have occurred and be continuing,
the Collateral Agent may exercise in respect of the Collateral, in addition to
all other rights and remedies provided for herein or otherwise available to it
at law or in equity, all the rights and remedies of a secured party under the
UCC (whether or not the UCC applies to the affected Collateral) to collect,
enforce or satisfy any Secured Obligations then owing, whether by acceleration
or otherwise, and also may, without notice except as specified below or required
under the UCC, sell, assign, lease, license (on an exclusive or non-exclusive
basis) or otherwise dispose of the Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Collateral Agent's offices or
elsewhere, for cash, on credit or for future delivery, at such time or times and
at such price or prices and upon such other terms as the Collateral Agent may
deem commercially reasonable.
(b) The Collateral Agent or any Secured Party may be the purchaser
of any or all of the Collateral at any public or private sale in accordance with
the UCC and the Collateral Agent, as collateral agent for and representative of
the Secured Parties, shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such sale made in accordance with the UCC, to use and
apply any of the Secured Obligations as a credit on account of the purchase
price for any Collateral payable by the Collateral Agent at such sale. Each
purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of any Grantor, and each Grantor hereby waives (to
the extent permitted by applicable law) all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. Each Grantor agrees that,
to the extent notice of sale shall be required by law, at least ten (10) days
notice to such Grantor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Collateral Agent
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. Each Grantor agrees
that it would not be commercially unreasonable for the Collateral Agent to
dispose of the Collateral or any portion thereof by using Internet sites that
provide for the auction of assets of the types included in the Collateral or
that have the reasonable capability of doing so, or that match buyers and
sellers of assets. Each Grantor hereby waives any claims against the Collateral
Agent and the Secured Parties arising by reason of the fact that the price at
which any Collateral may have been sold at such a private sale was less than the
price which might have been
12
obtained at a public sale, even if the Collateral Agent accepts the first offer
received and does not offer such Collateral to more than one offeree. If the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay all the Secured Obligations, Grantors shall be liable for the deficiency and
the fees of any attorneys employed by the Collateral Agent to collect such
deficiency. Each Grantor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to the Collateral Agent,
that the Collateral Agent has no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section shall be specifically enforceable against such Grantor, and such Grantor
hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that no default has
occurred giving rise to the Secured Obligations becoming due and payable prior
to their stated maturities. Nothing in this Section shall in any way alter the
rights of the Collateral Agent hereunder.
(c) The Collateral Agent may sell the Collateral without giving any
warranties as to the Collateral. The Collateral Agent may specifically disclaim
or modify any warranties of title or the like. This procedure will not be
considered to adversely effect the commercial reasonableness of any sale of the
Collateral.
(d) If the Collateral Agent sells any of the Collateral on credit, the
Secured Obligations will be credited only with payments actually made by the
purchaser and received by the Collateral Agent and applied to the indebtedness
of the purchaser. In the event the purchaser fails to pay for the Collateral,
the Collateral Agent may resell the Collateral.
(e) The Collateral Agent shall have no obligation to xxxxxxxx any of the
Collateral.
6.2. PLEDGED EQUITY INTERESTS.
(a) Each Grantor recognizes that, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws, the
Collateral Agent may be compelled, with respect to any sale of all or any part
of the Pledged Equity Interests conducted without prior registration or
qualification of such Pledged Equity Interests under the Securities Act and/or
such state securities laws, to limit purchasers to those who will agree, among
other things, to acquire the Pledged Equity Interests for their own account, for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges that any such private sale may be at prices and on terms
less favorable than those obtainable through a public sale without such
restrictions (including a public offering made pursuant to a registration
statement under the Securities Act) and, notwithstanding such circumstances,
each Grantor agrees that any such private sale shall be deemed to have been made
in a commercially reasonable manner and that the Collateral Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Pledged Equity Interests for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it. If the Collateral Agent
determines to exercise its right to sell any or all of the Pledged Equity
Interests, upon written request, each Grantor shall and shall cause each issuer
of any Pledged Equity Interest to be sold hereunder, each partnership and each
limited liability company from time to time to furnish to the Collateral Agent
all such information as the Collateral Agent may request in order to determine
the number and nature of interest, shares or other instruments included in the
Pledged Equity Interests which may be sold by the Collateral Agent in exempt
transactions under the Securities Act and the rules and regulations of the
Securities and Exchange Commission thereunder, as the same are from time to time
in effect.
13
6.3. CASH PROCEEDS. All proceeds of any Collateral received by any
Grantor consisting of cash, checks and other near-cash items (collectively,
"CASH PROCEEDS") following the occurrence and during the continuance of an Event
of Default shall be held by such Grantor in trust for the Collateral Agent,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Collateral Agent in the exact form
received by such Grantor (duly indorsed by such Grantor to the Collateral Agent,
if required) and held by the Collateral Agent.
6.4. APPLICATION OF PROCEEDS. Except as expressly provided elsewhere in
this Agreement, all proceeds received by the Collateral Agent in respect of any
sale, any collection from, or other realization upon all or any part of the
Collateral shall be applied in full or in part by the Collateral Agent against,
the Secured Obligations in the following order of priority: FIRST, to the
payment of all costs and expenses of such sale, collection or other realization,
including reasonable compensation to the Collateral Agent and its agents and
counsel, and all other expenses, liabilities and advances made or incurred by
the Collateral Agent in connection therewith, and all amounts for which the
Collateral Agent is entitled to indemnification hereunder (in its capacity as
the Collateral Agent and not as a Lender) and all advances made by the
Collateral Agent hereunder for the account of the applicable Grantor, and to the
payment of all costs and expenses paid or incurred by the Collateral Agent in
connection with the exercise of any right or remedy hereunder or under the
Credit Agreement, all in accordance with the terms hereof or thereof; SECOND, to
the extent of any excess of such proceeds, to the payment of all other Secured
Obligations for the ratable benefit of the Secured Parties; and THIRD, to the
extent of any excess of such proceeds, to the payment to or upon the order of
such Grantor or to whosoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.
SECTION 7. COLLATERAL AGENT.
The Collateral Agent has been appointed to act as Collateral Agent
hereunder by the Lenders and, by their acceptance of the benefits hereof, the
other Secured Parties. The Collateral Agent shall be obligated, and shall have
the right hereunder, to make demands, to give notices, to exercise or refrain
from exercising any rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of Collateral),
solely in accordance with this Agreement and the Credit Agreement; provided, the
Collateral Agent shall, after payment in full of all Obligations under the
Credit Agreement and the other Senior Finance Documents, exercise, or refrain
from exercising, any remedies provided for herein in accordance with the
instructions of the holders of a majority of the aggregate notional amount (or,
with respect to any Hedging Agreement that has been terminated in accordance
with its terms, the amount then due and payable (exclusive of expenses and
similar payments but including any early termination payments then due) under
such Hedging Agreement) under all Hedging Agreements. In furtherance of the
foregoing provisions of this Section, each Hedging Lender and Ancillary Lender,
by its acceptance of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Collateral hereunder, it being
understood and agreed by such Hedging Lender or Ancillary Lender that all rights
and remedies hereunder may be exercised solely by the Collateral Agent for the
benefit of the Secured Parties in accordance with the terms of this Section. The
Collateral Agent may resign or be removed and a successor Collateral Agent may
be appointed, all in accordance with Clause 22.9 of the Credit Agreement. After
any retiring or removed Collateral Agent's resignation or removal as the
Collateral Agent, the provisions of this Agreement shall inure to its benefit as
to any actions taken or omitted to be taken by it under this Agreement while it
was the Collateral Agent hereunder.
14
SECTION 8. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.
This Agreement shall create a continuing security interest in the
Collateral and shall remain in full force and effect until the payment in full
of all Secured Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Bank Guarantees, be
binding upon each Grantor, its successors and assigns, and inure, together with
the rights and remedies of the Collateral Agent hereunder, to the benefit of the
Collateral Agent and its successors, transferees and assigns for the benefit and
on behalf of the Secured Parties. Without limiting the generality of the
foregoing, but subject to the terms of the Credit Agreement, any Secured Party
may assign or otherwise transfer any Advances held by it to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to Lenders herein or otherwise. Upon the payment in full
of all Secured Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Bank Guarantees, the
security interest granted hereby shall terminate hereunder and of record and all
rights to the Collateral shall revert to Grantors. Upon any such termination the
Collateral Agent shall, at Grantors' expense, execute and deliver to Grantors
such documents as Grantors shall reasonably request to evidence such
termination.
SECTION 9. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.
The powers conferred on the Collateral Agent hereunder are solely to
protect its interest, for the benefit and on behalf of the Secured Parties, in
the Collateral and shall not impose any duty upon it to exercise any such
powers. Except for the exercise of reasonable care in the custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Collateral Agent shall have no duty as to any Collateral or as
to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Collateral Agent accords its own property.
Neither the Collateral Agent nor any of its directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon all or any
part of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Grantor or otherwise. If any Grantor fails to perform any agreement
contained herein, the Collateral Agent may itself perform, or cause performance
of, such agreement, and the expenses of the Collateral Agent incurred in
connection therewith shall be payable by each Grantor.
SECTION 10. MISCELLANEOUS.
Any notice required or permitted to be given under this Agreement shall
be given in accordance with Section 25 of the Credit Agreement. No failure or
delay on the part of the Collateral Agent in the exercise of any power, right or
privilege hereunder or under any other Senior Finance Document shall impair such
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Agreement and the other Senior Finance Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available. In case any provision
in or obligation under this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants,
15
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or such condition exists.
This Agreement shall be binding upon and inure to the benefit of the Collateral
Agent and Grantors and their respective successors and assigns. No Grantor
shall, without the prior written consent of the Collateral Agent given in
accordance with the Credit Agreement, assign any right, duty or obligation
hereunder. Subject to Clause 27 (Changes to Parties) of the Credit Agreement,
any Secured Party may assign or grant participations in its Secured Obligations
without affecting the validity of this Agreement. This Agreement and the other
Senior Finance Documents embody the entire agreement and understanding between
Grantors and the Collateral Agent and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and
thereof. Accordingly, the Senior Finance Documents may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties. This Agreement may
be executed in one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Agreement may be amended only
in writing signed by the Grantors and the Collateral Agent. The Grantors and the
Secured Party hereby irrevocably waive all rights to a trial by jury in any
action, proceeding, or counterclaim arising out of or relating to this Agreement
or the transactions contemplated hereby.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank]
16
IN WITNESS WHEREOF, each Grantor and the Collateral Agent have caused
this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FOUR SEASONS HEALTH CARE (CAPITAL) LIMITED
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
BARCLAYS BANK PLC, as the Collateral Agent
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
17
SCHEDULE 3.1
TO SHARE PLEDGE AGREEMENT
GENERAL INFORMATION
(A) Full Legal Name, Type of Organization, Jurisdiction of Organization,
Chief Executive Office (or Residence if Grantor is a Natural Person) and
Organizational Identification Number of each Grantor:
Chief Executive Office (or
Jurisdiction of Residence if Grantor is a Organization
Full Legal Name Type of Organization Organization Natural Person) I.D. #
--------------- -------------------- ------------ --------------- ------
Four Seasons Health Care Private Limited Company United Kingdom Xxxxxxx Court, Alderley Road, 4470724
(Capital) Limited Xxxxxxxx, Xxxxxxxx XX0 0XX
(B) Other Names (including any Trade-Name or Fictitious Business Name) under
which each Grantor has conducted business for the past five (5) years:
NAME OF GRANTOR DESCRIPTION OF AGREEMENT
--------------- ------------------------
N/A N/A
(C) Changes in Name, Jurisdiction of Organization, Chief Executive Office or
Sole Place of Business (or Principal Residence if Grantor is a Natural
Person) and Corporate Structure within past five (5) years:
FULL LEGAL NAME TRADE NAME OR FICTITIOUS BUSINESS NAME
--------------- --------------------------------------
N/A N/A
(D) Agreements pursuant to which any Grantor is found as debtor within past
five (5) years:
NAME OF GRANTOR DATE OF CHANGE DESCRIPTION OF CHANGE
--------------- -------------- ---------------------
N/A N/A N/A
(E) Financing Statements:
NAME OF GRANTOR FILING JURISDICTION(S)
--------------- ----------------------
N/A N/A
1
SCHEDULE 3.2
TO
SHARE PLEDGE AGREEMENT
PLEDGED STOCK
% OF
OUTSTANDING
CERTIFICATED STOCK NO. OF STOCK OF THE
GRANTOR STOCK ISSUER CLASS OF STOCK (Y/N) CERTIFICATE NO. PAR VALUE PLEDGED STOCK STOCK ISSUER
------- ------------ -------------- ----- --------------- --------- ------------- ------------
PLEDGED LLC INTERESTS
% OF OUTSTANDING LLC
INTERESTS OF THE
LIMITED LIABILITY CERTIFICATED CERTIFICATE NO. NO. OF LIMITED LIABILITY
GRANTOR COMPANY (Y/N) (IF ANY) PLEDGED UNITS COMPANY
------------------------ ------------------------ ------------ --------------- ------------- --------------------
Four Seasons Health Care Delta I Acquisition, LLC Yes 1 1 100%
(Capital) Limited
------------------------ ------------------------ ------------ --------------- ------------- --------------------
2
EXHIBIT A
TO
SHARE PLEDGE AGREEMENT
PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT, dated _____________, is delivered pursuant to the
Stock Pledge Agreement, dated as of ________, 2002 (as it may be from time to
time amended, restated, modified or supplemented, the "PLEDGE AGREEMENT"), among
[NAME OF BORROWER], the other Grantors named therein, and Barclays Bank PLC as
the Collateral Agent. Capitalized terms used herein not otherwise defined herein
shall have the meanings ascribed thereto in the Pledge Agreement.
Grantor hereby confirms the grant to the Collateral Agent set forth in
the Pledge Agreement of, and does hereby grant to the Collateral Agent, a
security interest in all of Grantor's right, title and interest in and to all
Collateral to secure its Secured Obligations, in each case whether now or
hereafter existing or in which Grantor now has or hereafter acquires an interest
and wherever the same may be located [and hereby agrees to be bound by the terms
of the Pledge Agreement as a Grantor and as an Additional Grantor thereunder as
though it had been an original signatory thereto]. Grantor represents and
warrants that the attached Supplements to Schedules accurately and completely
set forth all additional information required pursuant to the Pledge Agreement
and hereby agrees that such Supplements to Schedules shall constitute part of
the Schedules to the Pledge Agreement.
IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly
executed and delivered by its duly authorized officer as of the date first above
written.
[NAME OF GRANTOR]
By:
--------------------------------------
Name:
Title:
1
SUPPLEMENT TO SCHEDULE 3.1
TO
SHARE PLEDGE AGREEMENT
Additional Information
(A) Full Legal Name, Type of Organization, Jurisdiction of Organization,
Chief Executive Office (or Residence if Grantor is a Natural Person) and
Organizational Identification Number of each Grantor:
Chief Executive Office
(or Residence if
Type of Jurisdiction of Grantor is a Organization
Full Legal Name Organization Organization Natural Person) I.D. #
----------------------------- ------------ --------------- ---------------------- ------------
(B) Other Names (including any Trade-Name or Fictitious Business Name) under
which each Grantor has conducted business for the past five (5) years:
NAME OF GRANTOR DESCRIPTION OF AGREEMENT
--------------- ------------------------
(C) Changes in Name, Jurisdiction of Organization, Chief Executive Office or
Sole Place of Business (or Principal Residence if Grantor is a Natural
Person) and Corporate Structure within past five (5) years:
FULL LEGAL NAME TRADE NAME OR FICTITIOUS BUSINESS NAME
--------------- --------------------------------------
(D) Agreements pursuant to which any Grantor is found as debtor within past
five (5) years:
NAME OF GRANTOR DATE OF CHANGE DESCRIPTION OF CHANGE
--------------- -------------- ---------------------
(E) Financing Statements:
NAME OF GRANTOR FILING JURISDICTION(S)
--------------- ----------------------
1
SUPPLEMENT TO SCHEDULE 3.2
TO SECURITY AND PLEDGE AGREEMENT
Additional Information:
Pledged Equity Interests
2
EXHIBIT B
TO
SHARE PLEDGE AGREEMENT
UNCERTIFICATED SECURITIES CONTROL AGREEMENT
This Uncertificated Securities Control Agreement (this "AGREEMENT") dated
as of _________, 2002 among __________________ (the "Pledgor"), Barclays Bank
PLC, as collateral agent for the Secured Parties, (the "COLLATERAL AGENT") and
______________, a _________________ corporation (the "ISSUER"). Capitalized
terms used but not defined herein shall have the meaning assigned in the
Share
Pledge Agreement dated [as of the date hereof], among the Pledgor, the other
Grantors party thereto and the Collateral Agent (the "PLEDGE AGREEMENT"). All
references herein to the "UCC" shall mean the Uniform Commercial Code as in
effect in the State of
New York.
SECTION 1.REGISTERED OWNERSHIP OF SHARES. The Issuer hereby confirms and
agrees that as of the date hereof the Pledgor is the registered owner of
___________ shares of the Issuer's [common] stock (the "PLEDGED SHARES") and the
Issuer shall not change the registered owner of the Pledged Shares without the
prior written consent of the Collateral Agent.
SECTION 2.INSTRUCTIONS. If at any time the Issuer shall receive
instructions originated by the Collateral Agent relating to the Pledged Shares,
the Issuer shall comply with such instructions without further consent by the
Pledgor or any other person.
SECTION 3.ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The
Issuer hereby represents and warrants to the Collateral Agent:
(a) It has not entered into, and until the termination of this Agreement
will not enter into, any agreement with any other person relating the Pledged
Shares pursuant to which it has agreed to comply with instructions issued by
such other person; and
(b) It has not entered into, and until the termination of this Agreement
will not enter into, any agreement with the Pledgor or the Collateral Agent
purporting to limit or condition the obligation of the Issuer to comply with
Instructions as set forth in Section 2 hereof.
(c) Except for the claims and interest of the Collateral Agent and of the
Pledgor in the Pledged Shares, the Issuer does not know of any claim to, or
interest in, the Pledged Shares. If any person asserts any Security Interests,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against the Pledged Shares, the
Issuer will promptly notify the Collateral Agent and the Pledgor thereof.
(d) This Agreement is the valid and legally binding obligation of the
Issuer.
SECTION 4.CHOICE OF LAW. This Agreement shall be governed by the laws of
the State of
New York.
SECTION 5.CONFLICT WITH OTHER AGREEMENTS. In the event of any conflict
between this Agreement (or any portion thereof) and any other agreement now
existing or hereafter entered into, the terms of this Agreement shall prevail.
No amendment or modification of this Agreement or waiver of
1
any right hereunder shall be binding on any party hereto unless it is in writing
and is signed by all of the parties hereto.
SECTION 0.XXXXXX RIGHTS. Until such time as the Collateral Agent shall
otherwise instruct the Issuer in writing, the Pledgor shall have the right to
vote the Pledged Shares.
SECTION 7.SUCCESSORS; ASSIGNMENT. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective corporate successors or heirs and personal representatives who obtain
such rights solely by operation of law. The Collateral Agent may assign its
rights hereunder only with the express written consent of the Issuer and by
sending written notice of such assignment to the Pledgor.
SECTION 8.INDEMNIFICATION OF ISSUER. The Pledgor and the Collateral Agent
hereby agree that (a) the Issuer is released from any and all liabilities to the
Pledgor and the Collateral Agent arising from the terms of this Agreement and
the compliance of the Issuer with the terms hereof, except to the extent that
such liabilities arise from the Issuer's negligence and (b) the Pledgor, its
successors and assigns shall at all times indemnify and save harmless the Issuer
from and against any and all claims, actions and suits of others arising out of
the terms of this Agreement or the compliance of the Issuer with the terms
hereof, except to the extent that such claims, actions or suits arise from the
Issuer's negligence, and from and against any and all liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character arising by reason of the same, until the termination of this
Agreement.
SECTION 9.NOTICES. Any notice, request or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person, or when sent by telecopy or
other electronic means and electronic confirmation of error free receipt is
received or two (2) days after being sent by certified or registered United
States mail, return receipt requested, postage prepaid, addressed to the party
at the address set forth below.
Pledgor: [INSERT ADDRESS]
Attention:
Telecopier:
Collateral Agent: [INSERT ADDRESS]
Attention:
Telecopier:
Issuer: [INSERT ADDRESS]
Attention:
Telecopier:
Any party may change its address for notices in the manner set forth
above.
SECTION 10. TERMINATION. The obligations of the Issuer to the Collateral
Agent pursuant to this Agreement shall continue in effect until the security
interests of the Collateral Agent in the Pledged Shares have been terminated
pursuant to the terms of the Pledge Agreement and the Collateral Agent has
notified the Issuer of such termination in writing. The Collateral Agent agrees
to
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provide Notice of Termination in substantially the form of Exhibit A hereto to
the Issuer upon the request of the Pledgor on or after the termination of the
Collateral Agent's security interest in the Pledged Shares pursuant to the terms
of the Pledge Agreement. The termination of this Agreement shall not terminate
the Pledged Shares or alter the obligations of the Issuer to the Pledgor
pursuant to any other agreement with respect to the Pledged Shares.
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SECTION 11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
[NAME OF PLEDGOR]
By:
---------------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as Collateral Agent
By:
---------------------------------------
Name:
Title:
[NAME OF ISSUER]
By:
---------------------------------------
Name:
Title:
4
EXHIBIT A
[Letterhead of Collateral Agent]
[Date]
[Name and Address of Issuer]
Attention:
-----------------------------------------------
Re: Termination of Control Agreement
--------------------------------
You are hereby notified that the Uncertificated Securities Control
Agreement between you, [THE PLEDGOR] and the undersigned (a copy of which is
attached) is terminated and you have no further obligations to the undersigned
pursuant to such Agreement. Notwithstanding any previous instructions to you,
you are hereby instructed to accept all future directions with respect to
Pledged Shares (as defined in the Uncertificated Control Agreement) from [THE
PLEDGOR]. This notice terminates any obligations you may have to the undersigned
with respect to the Pledged Shares, however nothing contained in this notice
shall alter any obligations which you may otherwise owe to [THE PLEDGOR]
pursuant to any other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to [insert name of Pledgor].
Very truly yours,
BARCLAYS BANK PLC
as Collateral Agent
By:
-------------------------------------
Name:
Title:
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