Exhibit 10.7
FORM OF SECURITIES COLLATERAL PLEDGE AGREEMENT
SECURITIES COLLATERAL PLEDGE AGREEMENT (this "Agreement") dated as of
October 11, 2005 by and among each of:
[_______________________], a corporation organized under the laws of
the State of _________________ having a place of business at
___________________________ (hereinafter, the "Pledgor"); and
BANK OF AMERICA, N.A., a national banking association, as collateral
agent (in such capacity, the "Collateral Agent" for the Secured Parties (as
defined herein), in consideration of the mutual covenants contained herein
and benefits to be derived herefrom.
WITNESSETH:
WHEREAS, the Pledgor, among others, has entered into a certain Credit
Agreement dated as of even date herewith (as such may be amended, modified,
supplemented or restated hereafter, the "Credit Agreement") by and among (i) the
Pledgor and the other Borrowers named therein, (ii) the Lenders named therein,
(iii) Bank of America, N.A., as Administrative Agent and Collateral Agent for
the Lenders and the Issuing Banks, (iv) [CGMI AFFILIATE], as Syndication Agent,
(v) Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business Financial
Services Inc., as Documentation Agent, (vi) Bank of America, N.A. and [CGMI
AFFILIATE], as Issuing Banks, and (vii) Banc of America Securities LLC,
Citigroup Global Markets Inc. and Xxxxxxx Xxxxx Capital, a Division of Xxxxxxx
Xxxxx Business Financial Services Inc., as Joint Lead Arrangers and Joint Lead
Bookrunners, pursuant to which Credit Agreement the Lenders have agreed to make
Loans to the Borrowers, and the Issuing Banks have agreed to issue Letters of
Credit for the account of the Borrowers, upon the terms and subject to the
conditions specified in, the Credit Agreement; and
WHEREAS, the Pledgor, among others has entered into a certain Guaranty of
even date herewith in favor of the Secured Parties (as such may be amended,
modified, supplemented or restated hereafter, the "Guaranty"), pursuant to which
Guaranty the Pledgor guarantees the Obligations of the other Borrowers; and
WHEREAS, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit are each conditioned upon, among other things,
the execution and delivery by the Pledgor of an agreement in the form hereof to
secure the Obligations (as defined herein).
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in this Agreement, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Pledgor and the Collateral Agent
hereby agree as follows:
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SECTION 1
Definitions
1.1 Generally. Unless the context otherwise requires, all capitalized terms
used but not defined herein shall have the meanings set forth in the Credit
Agreement, and all references to the UCC shall mean the Uniform Commercial Code
as in effect from time to time in the State of New York; provided, however, that
if a term is defined in Article 9 of the UCC differently that in another Article
thereof, the term shall have the meaning set forth in Article 9, and provided
further that if by reason of mandatory provisions of law, perfection, or the
effect of perfection or non-perfection, of the Security Interest in any
Collateral or the availability of any remedy hereunder is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than New York,
"UCC" means the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection or availability of such remedy, as the case may be.
1.2 Definitions of Certain Terms Used Herein. As used herein, the following
terms shall have the following meanings:
"Blue Sky Laws" shall have the meaning assigned to such term in Section 7.7
of this Agreement.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Guaranty" shall have the meaning assigned to such term in the preliminary
statement of this Agreement.
"Guaranty Obligations" shall mean the obligations and liabilities
guarantied by the Guarantors pursuant to the Guaranty.
"Investment Property" shall have the meaning given that term in the UCC.
"Obligations" shall mean "Obligations" as defined in the Credit Agreement
and the Guaranty Obligations.
"Pledged Collateral" shall have the meaning assigned to such term in
Section 2.5 of this Agreement.
"Pledged Securities" shall have the meaning assigned to such term in
Section 2.1 of this Agreement.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
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"Securities Act" shall have the meaning assigned to such term in Section
7.7 of this Agreement.
"Security Agreement" shall mean that certain Security Agreement dated as of
even date herewith executed and delivered by the Pledgor and the other Grantors
named therein to Bank of America, N.A., as Collateral Agent for the benefit of
the Secured Parties, as amended and in effect from time to time.
1.3 Rules of Interpretation. The rules of interpretation specified in
Section 1.2 of the Credit Agreement shall be applicable to this Agreement.
SECTION 2
Pledge
As security for the payment and performance, as the case may be, in full of
the Obligations, the Pledgor hereby transfers, grants, bargains, sells, conveys,
hypothecates, pledges, sets over and delivers unto the Collateral Agent, its
successors and assigns, and hereby grants to the Collateral Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, a
security interest in all of the Pledgor's right, title and interest in, to and
under:
2.1 the shares of capital stock and other ownership interests owned by the
Pledgor and listed on Schedule I hereto, and any shares of capital stock or
other equity interest of any Subsidiary obtained in the future by the Pledgor,
and the stock certificates or other securities representing all such shares or
equity interests; provided that with respect to each Material Foreign Subsidiary
whose capital stock is pledged hereunder by the Pledgor, the Pledgor has pledged
stock representing 65% of the outstanding shares of Voting Stock of such
Material Foreign Subsidiary (or such lesser percentage as is owned by Pledgor)
(the "Pledged Securities");
2.2 all other Investment Property that may be delivered to, and held by,
the Collateral Agent pursuant to the terms hereof;
2.3 subject to Section Section 6, all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
or distributable, in respect of, or in exchange for, the Pledged Securities
referred to in clauses 2.1 and 2.2 above;
2.4 subject to Section Section 6, all rights and privileges of the Pledgor
with respect to the Pledged Securities and other Investment Property referred to
in clauses 2.1, 2.2, and 2.3 above; and
2.5 all proceeds of any of the foregoing (the items referred to in clauses
2.1 through 2.5 being collectively referred to as the "Pledged Collateral").
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TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the benefit of the
Secured Parties, until the Obligations have been paid in full in cash, the
Lenders have no further commitment to lend, the Letter of Credit Outstandings
have been reduced to zero or fully cash collateralized in a manner satisfactory
to the Issuing Banks and the Administrative Agent, and the Issuing Banks have no
further obligation to issue Letters of Credit under the Credit Agreement;
subject, however, to the terms, covenants and conditions hereinafter set forth.
Upon delivery to the Collateral Agent pursuant to Section 3 of this
Agreement, (a) all stock certificates or other securities now or hereafter
included in the Pledged Securities shall be accompanied by stock powers duly
executed in blank or other instruments of transfer satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request, and (b) all other Investment Property comprising
part of the Pledged Collateral shall be accompanied by proper instruments of
assignment duly executed by the Pledgor and such other instruments or documents
as the Collateral Agent may reasonably request. Each delivery of Pledged
Securities shall be accompanied by a schedule describing the Pledged Securities
theretofore and then being pledged hereunder, which schedule shall be attached
hereto as Schedule I and made a part hereof. Each schedule so delivered shall
supersede any prior schedules so delivered.
SECTION 3
Delivery of the Pledged Collateral
3.1 On or before the Closing Date, the Pledgor shall deliver or cause to be
delivered to the Collateral Agent any and all Pledged Securities, any and all
Investment Property, and any and all certificates or other instruments or
documents representing the Pledged Collateral as set forth in Section 4.15 of
the Security Agreement.
3.2 The Pledgor hereby irrevocably authorizes the Collateral Agent at any
time and from time to time to sign (if required) and file in any appropriate
filing office, wherever located, any Financing Statement that contains any
information required by the UCC of the applicable jurisdiction for the
sufficiency or filing office acceptance of any Financing Statement. The Pledgor
also authorizes the Collateral Agent to file a copy of this Agreement in lieu of
a Financing Statement, and to take any and all actions required by any earlier
versions of the UCC or by any other Applicable Law. The Pledgor shall provide
the Collateral Agent with any information the Collateral Agent shall reasonably
request in connection with any of the foregoing.
SECTION 4
Representations, Warranties and Covenants
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The Pledgor hereby represents, warrants and covenants, as to itself and the
Pledged Collateral pledged by it hereunder, to and with the Collateral Agent
that:
4.1 the Pledged Securities represent that percentage of the issued and
outstanding shares of each class of the capital stock or other equity interest
of the Issuer with respect thereto as set forth on Schedule I, provided that
with respect to each Material Foreign Subsidiary whose capital stock is pledged
hereunder by the Pledgor, the Pledgor has pledged stock representing 65% of the
outstanding shares of Voting Stock of such Material Foreign Subsidiary (or such
lesser percentage as is owned by Pledgor);
4.2 except for the security interest granted hereunder, and except as
otherwise permitted in the Credit Agreement and the other Loan Documents, the
Pledgor (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on Schedule I,
(ii) holds the Pledged Collateral free and clear of all Liens, other than
Permitted Encumbrances and Liens in favor of the Collateral Agent, (iii) will
make no assignment, pledge, hypothecation or transfer of, or create or permit to
exist any security interest in, or other Lien on, the Pledged Collateral, other
than pursuant hereto and other than Permitted Encumbrances, and (iv) subject to
Section 6, will cause any and all Pledged Collateral to be forthwith deposited
with the Collateral Agent and pledged or assigned hereunder;
4.3 except as expressly permitted under the Credit Agreement, the Pledgor
will not consent to or approve the issuance of (i) any additional shares of any
class of capital stock of any Issuer of the Pledged Securities, or the issuance
of any membership or other ownership interest in any such Person or (ii) any
securities convertible voluntarily by the holder thereof or automatically upon
the occurrence or nonoccurrence of any event or condition into, or exchangeable
for, any such shares or interests;
4.4 the Pledgor (i) has the power and authority to pledge the Pledged
Collateral in the manner hereby done or contemplated and (ii) will defend its
title or interest thereto or therein against any and all Liens (other than
Permitted Encumbrances and the Lien created by this Agreement or the other Loan
Documents), however arising, of all Persons whomsoever;
4.5 no consent of any other Person (including stockholders or creditors of
the Pledgor), and no consent or approval of any Governmental Authority or any
securities exchange, was or is necessary to the validity of the pledge effected
hereby or to the disposition of the Pledged Collateral upon an Event of Default
in accordance with the terms of this Agreement and the Security Agreement;
4.6 by virtue of the execution and delivery by the Pledgor of this
Agreement, and the delivery by the Pledgor to the Collateral Agent of the stock
certificates or other certificates or documents representing or evidencing the
Pledged Collateral in accordance with the terms of this Agreement, the
Collateral Agent will obtain a valid and perfected first lien upon, and security
interest in, the Pledged Collateral as security for the payment and performance
of the Obligations, to the extent such security interest may be perfected by
possession;
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4.7 the pledge effected hereby is effective to vest in the Collateral
Agent, on behalf of the Secured Parties, the rights of the Collateral Agent in
the Pledged Collateral as set forth herein;
4.8 all the Pledged Securities have been duly authorized and validly issued
and are fully paid and nonassessable;
4.9 all information set forth herein relating to the Pledged Collateral is
accurate and complete in all material respects as of the date hereof; and
4.10 none of the Pledged Securities constitutes margin stock, as defined in
Regulation U of the Board of Governors of the Federal Reserve System.
SECTION 5
Registration in Nominee Name; Copies of Notices
Upon the occurrence and during the continuance of an Event of Default, the
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
reasonable discretion) to hold the Pledged Securities in its own names as
pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgor, endorsed or assigned in blank or in favor of the Collateral Agent. The
Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of the Pledgor.
SECTION 6
Voting Rights; Dividends and Interest, Etc.
6.1 Unless and until an Event of Default shall have occurred and be
continuing, the Pledgor shall be entitled to exercise any and all voting and/or
other consensual rights and powers inuring to an owner of the Pledged Securities
or any part thereof to the extent, and only to the extent, that such rights are
exercised for any purpose consistent with, and not otherwise in violation of,
the terms and conditions of this Agreement, the Credit Agreement, the other Loan
Documents and Applicable Law; provided, however, that the Pledgor will not be
entitled to exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged Securities or the
rights and remedies of any of the Secured Parties under this Agreement, the
Credit Agreement or any other Loan Document or the ability of the Secured
Parties to exercise the same.
6.2 Unless and until a Cash Dominion Event shall have occurred and be
continuing, the Pledgor shall be entitled to receive and retain any and all cash
dividends paid on the Pledged Collateral to the extent, and only to the extent,
that such cash dividends are permitted by, and otherwise paid in accordance
with, the terms and conditions of this Agreement, the Credit
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Agreement, the other Loan Documents and Applicable Law. All noncash dividends,
and all dividends paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital surplus
or paid-in surplus, and all other distributions (other than dividends and
distributions referred to in the preceding sentence) made on or in respect of
the Pledged Collateral, whether paid or payable in cash or otherwise, whether
resulting from a subdivision, combination or reclassification of the outstanding
capital stock or partnership interests of the issuer of any Pledged Securities
or received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, or as a result of any merger, amalgamation, arrangement,
consolidation, acquisition or other exchange of assets to which such issuer may
be a party or otherwise, shall be and become part of the Pledged Collateral,
and, if received by the Pledgor, to the extent required to be paid to the
Collateral Agent pursuant to the terms of the Credit Agreement or the other Loan
Documents, shall not be commingled by the Pledgor with any of its other funds or
property but shall be held separate and apart therefrom, shall be held in trust
for the benefit of the Collateral Agent and shall be forthwith delivered to the
Collateral Agent in the same form as so received (with any necessary
endorsement).
6.3 Upon the occurrence and during the continuance of an Cash Dominion
Event, all rights of the Pledgor to dividends that the Pledgor is authorized to
receive pursuant to Section 6.2 above shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, which shall have the sole and
exclusive right and authority to receive and retain such dividends. All
dividends received by the Pledgor contrary to the provisions of this Section 6.3
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of the Pledgor and shall be forthwith
delivered to the Bank of America Concentration Account in accordance with the
provisions of Section 2.21 of the Credit Agreement in the same form as so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Collateral Agent pursuant to the provisions of
this Section 6.3 shall be applied in accordance with the provisions of Section
8.
6.4 Upon the occurrence and during the continuance of an Event of Default,
all rights of the Pledgor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to 6.1 shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers; provided that the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Pledgor to exercise such rights. After all Events of
Default have been cured or waived in writing by the Collateral Agent, the
Pledgor will have the right to exercise the voting and consensual rights and
powers that they would otherwise be entitled to exercise pursuant to the terms
of 6.1.
SECTION 7
Remedies upon Default
Upon the occurrence of an Event of Default, it is agreed that the
Collateral Agent shall have in any jurisdiction in which enforcement hereof is
sought, in addition to all other rights and
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remedies, the rights and remedies of a secured party under the UCC or other
Applicable Law. The rights and remedies of the Collateral Agent shall include,
without limitation, the right to take any of or all the following actions at the
same or different times:
7.1 The Collateral Agent may sell or otherwise dispose of all or any part
of the Pledged Collateral, at public or private sale or at any broker's board or
on any securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. Each purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
the Pledgor.
7.2 The Collateral Agent shall give the Pledgor at least ten (10) days'
prior written notice, by authenticated record, of the Collateral Agent's
intention to make any sale of the Pledged Collateral. Such notice, (i) in the
case of a public sale, shall state the date, time and place for such sale, (ii)
in the case of a sale at a broker's board or on a securities exchange, shall
state the board or exchange at which such sale is to be made and the day on
which the Pledged Collateral, or portion thereof, will first be offered for sale
at such board or exchange, and (iii) in the case of a private sale, shall state
the date after which any private sale or other disposition of the Pledged
Collateral shall be made. The Pledgor agrees that such written notice shall
satisfy all requirements for notice to the Pledgor which are imposed under the
UCC with respect to the exercise of the Collateral Agent's rights and remedies
upon default. The Collateral Agent shall not be obligated to make any sale or
other disposition of any Pledged Collateral if it shall determine not to do so,
regardless of the fact that notice of sale or other disposition of such
Collateral shall have been given. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned.
7.3 Any public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Collateral Agent may fix and
state in the notice of such sale.
7.4 At any public (or, to the extent permitted by Applicable Law, private)
sale made pursuant to this Section 7, the Collateral Agent or any other Secured
Party may bid for or purchase, free (to the extent permitted by Applicable Law)
from any right of redemption, stay, valuation or appraisal on the part of the
Pledgor, the Pledged Collateral or any part thereof offered for sale and may
make payment on account thereof by using any claim then due and payable to the
Collateral Agent or such other Secured Party from the Pledgor on account of the
Obligations as a credit against the purchase price, and the Collateral Agent or
such other Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to the
Pledgor therefor.
7.5 For purposes hereof, a written agreement to purchase the Pledged
Collateral or any portion thereof shall be treated as a sale thereof. The
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and the Pledgor shall not be entitled to the return of the Pledged Collateral or
any portion thereof subject thereto, notwithstanding the fact that after the
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Collateral Agent shall have entered into such an agreement all Events of Default
shall have been remedied and the Obligations paid in full.
7.6 As an alternative to exercising the power of sale herein conferred upon
it, the Collateral Agent may proceed by a suit or suits at law or in equity to
foreclose upon the Pledged Collateral and to sell the Pledged Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver.
7.7 The Pledgor recognizes that (i) the Collateral Agent may be unable to
effect a public sale of all or a part of the Pledged Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. Section
77, (as amended and in effect, the "Securities Act") or the Securities laws of
various states (the "Blue Sky Laws"), but may be compelled to resort to one or
more private sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire the Pledged Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof, (ii) that private sales so made may be at prices and upon other terms
less favorable to the seller than if the Pledged Collateral were sold at public
sales, (iii) that neither the Collateral Agent nor any Secured Party has any
obligation to delay sale of any of the Pledged Collateral for the period of time
necessary to permit the Pledged Collateral to be registered for public sale
under the Securities Act or the Blue Sky Laws, and (iv) that private sales made
under the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
7.8 To the extent permitted by Applicable Law, the Pledgor hereby waives
all rights of redemption, stay, valuation and appraisal which the Pledgor now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted.
SECTION 8
Application of Proceeds of Sale
The proceeds of any sale of Pledged Collateral pursuant to Section 7, as
well as any Pledged Collateral consisting of cash, shall be applied by the
Collateral Agent as required pursuant to the terms of Section 6.2 of the
Security Agreement.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale or other disposition of the Pledged Collateral by the
Collateral Agent (including pursuant to a power of sale granted by statute or
under a judicial proceeding), the receipt of the purchase money by the
Collateral Agent or of the officer making the sale or other disposition shall be
a sufficient discharge to the purchaser or purchasers of the Pledged Collateral
so sold or otherwise disposed of and such purchaser or purchasers shall not be
obligated to see to the application of any part of
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the purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication thereof.
SECTION 9
Registration, Etc.
If the Collateral Agent reasonably determines that it is necessary to sell
any of the Pledged Securities at a public sale, the Pledgor agrees that, upon
the occurrence and during the continuance of an Event of Default hereunder, the
Pledgor will, at any time and from time to time, upon the written request of the
Collateral Agent, use its best efforts to take or to cause the Issuer of such
Pledged Securities to take such action and prepare, distribute and/or file such
documents, as are required or advisable in the reasonable opinion of counsel for
the Collateral Agent to permit the public sale of such Pledged Securities.
Without limiting any of its other indemnification obligations under the Loan
Documents, the Pledgor agrees to indemnify, defend and hold harmless the
Collateral Agent, each other Secured Party, any underwriter and their respective
officers, directors, Affiliates and controlling Persons from and against all
loss, liability, expenses, costs of counsel (including the reasonable fees and
expenses of legal counsel to the Collateral Agent), and claims (including the
reasonable costs of investigation) that any of them may incur insofar as such
loss, liability, expense or claim arises out of, or is based upon, any alleged
untrue statement of a material fact contained in any prospectus (or any
amendment or supplement thereto) or in any notification or offering circular, or
arises out of or is based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements in any thereof
not misleading, except insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in writing to the Pledgor
or the Issuer of such Pledged Securities by the Collateral Agent or any other
Secured Party expressly for use therein. The Pledgor further agrees, upon such
written request referred to above, to use its best efforts to qualify, file or
register, or cause the Issuer of such Pledged Securities to qualify, file or
register, any of the Pledged Securities under the Securities Act, Blue Sky Laws
or other securities laws of such states as may be requested by the Collateral
Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. The Pledgor will bear all costs and
expenses of carrying out their obligations under this Section 9. The Pledgor
acknowledges that there is no adequate remedy at law for failure by them to
comply with the provisions of this Section 9 and that such failure would not be
adequately compensable in damages, and therefore agree that their agreements
contained in this Section 9 may be specifically enforced.
SECTION 10
Further Assurances
The Pledgor agrees to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, agreements and instruments, as
the Collateral Agent may at any time reasonably request in connection with the
administration and enforcement of this
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Agreement or with respect to the Pledged Collateral or any part thereof or in
order better to assure and confirm unto the Collateral Agent its rights and
remedies hereunder.
SECTION 11
Intent
This Agreement is being executed and delivered by the Pledgor for the
purpose of confirming the grant of the security interest of the Collateral Agent
in the Pledged Collateral. It is intended that the security interest granted
pursuant to this Agreement is granted as a supplement to, and not in limitation
of, the Security Interest granted to the Collateral Agent, for the ratable
benefit of the Secured Parties, under the Security Agreement. All provisions of
the Security Agreement shall apply to the Pledged Collateral. The Collateral
Agent shall have the same rights, remedies, powers, privileges and discretions
with respect to the security interests created in the Pledged Collateral as in
all other Collateral. In the event of a conflict between this Agreement and the
Security Agreement, the terms of this Agreement shall control with respect to
the Pledged Collateral and the Security Agreement with respect to all other
Collateral.
SECTION 12
Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
under seal as of the day and year first above written.
PLEDGOR: [ ]
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By:
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Name:
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Title:
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COLLATERAL AGENT: BANK OF AMERICA, N.A., as Collateral Agent
By:
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Name:
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Title:
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SCHEDULE I
None of the issuers has any authorized, issued or outstanding membership
interests of any class or any commitments to issue any membership interests of
any class or any securities convertible into or exchangeable for any membership
interests of any class except as otherwise stated in this Schedule I.
Percentage of Membership
Record Type of Interest held Interests held by Record
Issuer Owner by Record Owner Owner
------ ------ --------------------- ------------------------
None of the issuers has any authorized, issued or outstanding shares of its
capital stock of any class or any commitments to issue any shares of its capital
stock of any class or any securities convertible into or exchangeable for any
shares of its capital stock of any class except as otherwise stated in this
Schedule I.
Number Percentage
of Shares Number of of Shares
held by Issued and held by
Record Class of Record Outstanding Record
Issuer Owner Shares Owner Shares Owner
------ ------ -------- --------- ----------- ----------
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