TERM LOAN PLEDGE AGREEMENT
Exhibit 10.7
TERM LOAN PLEDGE AGREEMENT (this “Agreement”) dated as of May 22, 2008 between XxXxxxxx Red
Man Holding Corporation, a Delaware corporation (the “Pledgor” or “Borrower”), and
Xxxxxx Commercial Paper Inc., as Collateral Agent (in such capacity, the “Collateral
Agent”) under the Credit Agreement (as defined below) for the benefit of the Secured Parties
(as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower is party to the Term Loan Credit Agreement dated as of May 22, 2008 (as
the same may be amended, restated, supplemented or otherwise modified, refinanced or replaced from
time to time, the “Credit Agreement”) among the Borrower, the lending institutions from
time to time party thereto (the “Lenders”), Xxxxxx Commercial Paper Inc., as Administrative
Agent and as Collateral Agent, pursuant to which (1) the Lenders have severally agreed to make
Loans to the Borrower upon the terms and subject to the conditions set forth therein, and (2) one
or more Lenders or affiliates of Lenders may from time to time enter into Hedge Agreements with the
Borrower (the items in clauses (1) and (2) collectively, the “Extensions of Credit”);
WHEREAS, the proceeds of the Extensions of Credit will be used to enable the Borrower to fund
a dividend to the Investors;
WHEREAS, Pledgor acknowledges that it will derive substantial direct and indirect benefit from
the making of the Extensions of Credit;
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement that the Borrower shall have
executed and delivered this Agreement to the Collateral Agent for the ratable benefit of the
Secured Parties;
WHEREAS, (a) Pledgor is the legal and beneficial owner of the Equity Interests (as defined
below) described in Schedule 1 hereto and issued by the entities named therein (such Equity
Interests hereunder, the “Pledged Shares”), and (b) Pledgor is the legal and beneficial
owner of the Indebtedness (the “Pledged Debt”) described in Schedule 1 hereto and issued by
the entities named therein.
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, the
Collateral Agent, the Syndication Agent, and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Extensions of Credit to the Borrower under the Credit
Agreement and to induce one or more Lenders or affiliates of Lenders to enter into Hedge Agreements
with the Borrower, the Pledgor hereby agrees with the Collateral Agent, for the benefit of the
Secured Parties, as follows:
SECTION 1. Defined Terms.
(a) Unless otherwise defined herein, all capitalized terms used herein (including the preamble
and recitals hereto) and not otherwise defined herein shall have the meanings given to them in the
Credit Agreement or, if not defined therein, in the UCC.
(b) The following terms shall have the following meanings:
“Agreement” shall have the meaning assigned to such term in the preamble hereto.
“Borrower” shall have the meaning assigned to such term in the preamble hereto.
“Collateral” shall have the meaning provided in Section 2 hereof.
“Collateral Agent” shall have the meaning assigned to such term in the preamble
hereto.
“Credit Agreement” shall have the meaning assigned to such term in the recitals
hereto.
“Equity Interests” shall mean, collectively, Stock and Stock Equivalents.
“Extensions of Credit” shall have the meaning assigned to such term in the recitals
hereto.
“Lender Counterparty” means each Lender or any Affiliate of a Lender that is a
counterparty to a Hedge Agreement (including any Person that ceases to be a Lender (or any
Affiliate thereof) (a) on the date such Lender becomes a party to the Credit Agreement or (b) as of
the date such Hedge Agreement was entered into.
“Lenders” shall have the meaning assigned to such term in the recitals hereto.
“Obligations” shall mean the collective reference to (i) the due and punctual payment
of (x) the principal of and premium, if any, and interest at the applicable rate provided in the
Credit Agreement (including interest at the contract rate applicable upon default accrued or
accruing after the commencement of any proceeding, under the Bankruptcy Code or any applicable
provision of comparable state or foreign law, whether or not such interest is an allowed claim in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (y) each payment required to be made by Borrower under
the Credit Agreement, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and (z) all other
monetary obligations, including fees, costs, payments for early termination of Hedge Agreements,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any proceeding under the Bankruptcy
Code or any applicable provision of comparable state or foreign law, whether or not such interest
is an allowed claim in such proceeding), of Borrower to any of the Secured Parties under the Credit
Agreement and any other Credit Documents, (ii) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrower under or
pursuant to the Credit Agreement and the other Credit Documents and (iii) the due and punctual
payment and performance of all obligations of the Borrowr under each Hedge Agreement that
(x) is in
effect on the Closing Date with a counterparty that is a Lender or an affiliate of a Lender as of
the Closing Date or (y) is entered into after the Closing Date with any counterparty that is a
Lender or an affiliate of a Lender at the time such Hedge Agreement is entered into.
“Pledged Debt” shall have the meaning assigned to such term in the recitals hereto.
“Pledged Shares” shall have the meaning assigned to such term in the recitals hereto.
“Pledgor” shall have the meaning assigned to such term in the preamble hereto.
“Proceeds” shall mean: (i) all “proceeds” as defined in Article 9 of the UCC and (ii)
whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or
otherwise disposed of, whether such disposition is voluntary or involuntary, including proceeds of
any indemnity or guarantee payable to Pledgor or the Collateral Agent from time to time with
respect to any of the Collateral.
“Secured Parties” shall mean, collectively, (i) the Lenders, (ii) the Administrative
Agent, (iii) the Collateral Agent, (iv) the Syndication Agent, (v) each Lender Counterparty party
to a Hedge Agreement the obligations under which constitute Obligations, (vi) the beneficiaries of
each indemnification obligation undertaken by the Borrower under the Credit Documents and (vii) any
successors, indorsees, transferees and assigns of each of the foregoing.
“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the
State of New York; provided, however, that, in the event that, by reason of mandatory provisions of
law, any of the attachment, perfection or priority of the Collateral Agent’s and the Secured
Parties’ security interest in any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of definitions related to such
provisions.
(c) References to “Lenders” in this Agreement shall be deemed to include affiliates of Lenders
that may from time to time enter into Hedge Agreements with the Borrower.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to Sections of this Agreement unless otherwise specified.
The words “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation.”
(e) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
SECTION 2. Grant of Security. Pledgor hereby transfers, assigns and pledges to the Collateral Agent, for the ratable benefit
of the Secured Parties, and grants to the Collateral Agent, for the benefit of the Secured Parties,
a security interest in and continuing lien on all of Pledgor’s right, title and interest in, to and
under the following, whether now owned or existing or at any time hereafter acquired or existing or
arising (collectively, the “Collateral”):
(a) the Pledged Shares held by Pledgor and the certificates representing such Pledged Shares
and any interest of Pledgor in the entries on the books or records of the issuer of such Pledged
Shares or on the books or records of any financial intermediary pertaining to such Pledged Shares
and all dividends, cash, warrants, rights, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares;
(b) the Pledged Debt and the instruments evidencing the Pledged Debt owed to Pledgor, and all
interest, cash, instruments and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of such Pledged Debt; and
(c) to the extent not covered by clauses (a) and (b) above, respectively, all Proceeds of any
or all of the foregoing Collateral.
SECTION 3. Security for Obligations This Agreement secures the payment of all the
Obligations. Without limiting the generality of the foregoing, this Agreement secures the payment
of all amounts that constitute part of the Obligations and would be owed to the Collateral Agent or
the Secured Parties under the Credit Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving
Pledgor.
SECTION 4. Delivery of the Collateral All original stock certificates or instruments,
if any, representing or evidencing the Collateral shall be promptly delivered to and held by or on
behalf of the Collateral Agent pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to the Collateral Agent. The Collateral Agent
shall have the right, at any time after the occurrence and during the continuance of an Event of
Default and with notice to the relevant Pledgor, to transfer to or to register in the name of the
Collateral Agent or any of its nominees any or all of the Pledged Shares. Each delivery of
Collateral shall be accompanied by a schedule describing the securities theretofore and then being
pledged hereunder, which shall be attached hereto as part of Schedule 1 and made a part hereof;
provided that the failure to deliver or attach any such schedule hereto shall not affect
the validity of such pledge of such securities; provided, further, that the failure
by the Collateral Agent to attach any schedule so delivered shall not constitute a Default or Event
of Default hereunder or under any other Credit Document . Each schedule so delivered shall
supersede any prior schedules so delivered.
SECTION 5. Representations and Warranties. Pledgor represents and warrants to the Collateral Agent and each other Secured Party as
follows:
(a) Schedule 1 hereto (i) correctly represents as of the Closing Date (A) the issuer, the
certificate number, the Pledgor and the record and beneficial owner, the number and class and the
percentage of the issued and outstanding Equity Interests of such class of all Pledged Shares and
(B) the issuer, the initial principal amount, the Pledgor and holder, date of issuance and maturity
date of all Pledged Debt, and (ii) together with the comparable schedule to each supplement hereto,
accurately and completely describes all Equity Interests, debt securities and
promissory notes
required to be pledged hereunder. Except as set forth on Schedule 1, the Pledged Shares represent
all (or 65% in the case of pledges of Foreign Subsidiaries) of the issued and outstanding Equity
Interests of each class of Equity Interests in the issuer on the Closing Date.
(b) Pledgor is the legal and beneficial owner of the Collateral pledged or assigned by Pledgor
hereunder, free and clear of any Lien, except for the Lien created by this Agreement.
(c) As of the Closing Date, the Pledged Shares pledged by Pledgor hereunder have been duly
authorized and validly issued and, in the case of Pledged Shares issued by a corporation, are fully
paid and non-assessable.
(d) As of the Closing Date, all of the Pledged Debt, to the knowledge of Pledgor only with
respect to Pledged Debt owed by an issuer, has been duly authorized, authenticated or issued, and
delivered, and is the legal, valid and binding obligation of the issuers thereof and is not in
default.
(e) The execution and delivery by Pledgor of this Agreement and the pledge of the Collateral
pledged by Pledgor hereunder pursuant hereto create a legal, valid and enforceable security
interest in such Collateral and, upon the earlier of (i) delivery of such Collateral to the
Collateral Agent in the State of New York or (ii) the filing of all UCC financing statements naming
Pledgor as “debtor” and the Collateral Agent as “secured party” and describing the Collateral in
the filing offices set forth opposite Pledgor’s name on Schedule 5(e) hereto, shall constitute a
fully perfected Lien on and first priority security interest in the Collateral, securing the
payment of the Obligations, in favor of the Collateral Agent for the benefit of the Secured
Parties, except as enforceability thereof may be limited by bankruptcy, insolvency or other similar
laws affecting creditors’ rights generally and subject to general principles of equity.
(f) Pledgor has full power, authority and legal right to pledge all the Collateral pledged by
Pledgor pursuant to this Agreement, and this Agreement constitutes a legal, valid and binding
obligation of Pledgor, enforceable in accordance with its terms, except as enforceability thereof
may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and subject to general principles of equity.
SECTION 6. Certification of Limited Liability Company and Limited Partnership
Interests. The Equity Interests in any Person that is organized as a limited liability company
or limited partnership and pledged hereunder shall be represented by a certificate and in the
organizational documents of such Person, the Pledgor shall cause the issuer of such interests
to elect to treat such interests as a “security” within the meaning of Article 8 of the UCC of its
jurisdiction of organization or formation, as applicable, by including in its organizational
documents language substantially similar to the following and, accordingly, such interests shall be
governed by Article 8 of the UCC:
“The Partnership/Company hereby irrevocably elects that all membership interests in the
Partnership/Company shall be securities governed by Article 8 of the Uniform Commercial Code of
[jurisdiction of organization or formation, as applicable]. Each certificate evidencing
partnership/membership interests in the Partnership/Company shall bear the following legend:
“This
certificate evidences an interest in [name of Partnership/LLC] and shall be a security for purposes
of Article 8 of the Uniform Commercial Code.” No change to this provision shall be effective until
all outstanding certificates have been surrendered for cancellation and any new certificates
thereafter issued shall not bear the foregoing legend.”
SECTION 7. Further Assurances. Pledgor agrees that at any time and from time to time,
at the expense of Pledgor, it will promptly execute or otherwise authorize the filing of any and
all further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings, mortgages,
deeds of trust and other documents), which may be required under any applicable law, or which the
Collateral Agent or the Administrative Agent may reasonably request, in order (x) to perfect and
protect any pledge, assignment or security interest granted or purported to be granted hereby
(including the priority thereof) or (y) to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral.
SECTION 8. Voting Rights; Dividends and Distributions; Etc. (a) So long as no Event
of Default shall have occurred and be continuing:
| (i) | Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not prohibited by the terms of this Agreement or the other Credit Documents. | ||
| (ii) | The Collateral Agent shall execute and deliver (or cause to be executed and delivered) to Pledgor all such proxies and other instruments as Pledgor may reasonably request for the purpose of enabling Pledgor to exercise the voting and other rights that it is entitled to exercise pursuant to paragraph (i) above. |
(b) Subject to paragraph (c) below, Pledgor shall be entitled to receive and retain and use,
free and clear of the Lien created by this Agreement, any and all dividends, distributions,
principal and interest made or paid in respect of the Collateral to the extent permitted by the
Credit Agreement, as applicable; provided, however, that any and all noncash
dividends, interest, principal or other distributions that would constitute Pledged Shares or
Pledged Debt, whether resulting from a subdivision, combination or reclassification of the
outstanding Equity Interests
of the issuer of any Pledged Shares or received in exchange for Pledged Shares or Pledged Debt
or any part thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be,
and shall be forthwith delivered to the Collateral Agent to hold as, Collateral and shall, if
received by Pledgor, be received in trust for the benefit of the Collateral Agent, be segregated
from the other property or funds of Pledgor and be forthwith delivered to the Collateral Agent as
Collateral in the same form as so received (with any necessary indorsement).
(c) Upon written notice to a Pledgor by the Collateral Agent following the occurrence and
during the continuance of an Event of Default,
| (i) | all rights of Pledgor to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 8(a)(i) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to exercise or refrain from exercising such voting and other consensual rights during the continuance of such Event of Default, provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following the occurrence and during the continuance of an Event of Default to permit the Pledgor to exercise such rights. When no Events of Default are continuing and the Borrower has delivered to the Collateral Agent a certificate to that effect, or after all Events of Default have been cured or waived pursuant to Section 12 or Section 14.1 of the Credit Agreement, as applicable, Pledgor shall have the right to exercise the voting and consensual rights that Pledgor would otherwise be entitled to exercise pursuant to the terms of Section 8(a)(i) (and the obligations of the Collateral Agent under Section 8(a)(ii) shall be reinstated); | ||
| (ii) | all rights of Pledgor to receive the dividends, distributions and principal and interest payments that Pledgor would otherwise be authorized to receive and retain pursuant to Section 8(b) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to receive and hold as Collateral such dividends, distributions and principal and interest payments during the continuance of such Event of Default. When no Events of Default are continuing and the Borrower has delivered to the Collateral Agent a certificate to that effect, or after all Events of Default have been cured or waived pursuant to Section 12 or Section 14.1 of the Credit Agreement, as applicable, the Collateral Agent shall repay to Pledgor (without interest) all dividends, distributions and principal and interest payments that Pledgor would otherwise be permitted to receive, retain and use pursuant to the terms of Section 8(b); | ||
| (iii) | all dividends, distributions and principal and interest payments that are received by Pledgor contrary to the provisions of Section 8(b) shall be received in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of Pledgor and shall forthwith be delivered to the Collateral Agent as Collateral in the same form as so received (with any necessary indorsements); and | ||
| (iv) | in order to permit the Collateral Agent to receive all dividends, distributions and principal and interest payments to which it may be entitled under Section 8(b) above, to exercise the voting and other consensual rights that it may be entitled to exercise pursuant to Section 8(c)(i) above, and to receive all dividends, distributions and principal and interest payments that it may be entitled to under Sections 8(c)(ii) and (c)(iii) above, Pledgor shall from time to time execute and deliver to the |
| Collateral Agent appropriate proxies, dividend payment orders and other instruments as the Collateral Agent may reasonably request in writing. |
SECTION 9. Transfers and Other Liens; Additional Collateral; Etc. Pledgor shall:
(a) not (i) except as permitted by the Credit Agreement sell or otherwise dispose of, or grant
any option or warrant with respect to, any of the Collateral or (ii) create or suffer to exist any
consensual Lien upon or with respect to any of the Collateral, except for the Lien created by this
Agreement, provided that in the event Pledgor sells or otherwise disposes of assets as
permitted by the Credit Agreement, and such assets are or include any of the Collateral, the
Collateral Agent shall release such Collateral to Pledgor free and clear of the Lien created by
this Agreement concurrently with the consummation of such sale; and
(b) defend its and the Collateral Agent’s title or interest in and to all the Collateral (and
in the Proceeds thereof) against any and all Liens (other than the Lien created by this Agreement),
however arising, and any and all Persons whomsoever.
SECTION 10. Collateral Agent Appointed Attorney-in-Fact. Pledgor hereby appoints,
which appointment is irrevocable and coupled with an interest, the Collateral Agent as Pledgor’s
attorney-in-fact, with full authority in the place and stead of Pledgor and in the name of Pledgor
or otherwise, to take any action and to execute any instrument, in each case after the occurrence
and during the continuance of an Event of Default, that the Collateral Agent may deem reasonably
necessary or advisable to accomplish the purposes of this Agreement, including to receive, indorse
and collect all instruments made payable to Pledgor representing any dividend, distribution or
principal or interest payment in respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 11. The Collateral Agent’s Duties. The powers conferred on the Collateral
Agent hereunder are solely to protect its interest and the interests of the Secured Parties in the
Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party to
exercise any such powers. Except for the safe 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, as to ascertaining or
taking action with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Pledged Shares, whether or not the Collateral Agent or any other Secured
Party has or is deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any 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 any Collateral in its possession if such Collateral is accorded treatment substantially equal to
that which the Collateral Agent accords its own property.
SECTION 12. Remedies. If any Event of Default shall have occurred and be continuing:
(a) The Collateral Agent may exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all the rights and remedies
of a secured party upon default under the UCC (whether or not the UCC applies to the affected
Collateral) or other applicable law or in equity and also may, with notice to the relevant Grantor,
sell the Collateral or any part thereof in one or more parcels at public or private sale, at any
exchange broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on
credit or for future delivery, at such price or prices and upon such other terms as are
commercially reasonable irrespective of the impact of any such sales on the market price of the
Collateral. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to
do so) to restrict the prospective bidders or purchasers of Collateral to Persons who will
represent and agree that they are purchasing the Collateral for their own account for investment
and not with a view to the distribution or sale thereof, and, upon consummation of any such sale,
the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of Pledgor, and Pledgor hereby waives (to
the extent permitted by law) all rights of redemption, stay and/or appraisal that it now has or may
at any time in the future have under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent or any other Secured Party shall have the right upon any such public sale and,
to the extent permitted by law, upon any such private sale, to purchase all or any part of the
Collateral so sold, and the Collateral Agent or such other Secured Party may pay the purchase price
by crediting the amount thereof against the Obligations. Pledgor agrees that, to the extent notice
of sale shall be required by law, at least ten days’ notice to Pledgor 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. To the
extent permitted by law, Pledgor hereby waives any claim against the Collateral Agent 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 that might have been 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.
(b) The Collateral Agent shall apply the proceeds of any collection or sale of the Collateral
at any time after receipt as follows:
| (i) | first, to the payment of all reasonable and documented costs and expenses incurred by the Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement, the other Credit Documents or any of the Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any other Credit Document on behalf of Pledgor and any other reasonable and documented costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Credit Document; | ||
| (ii) | second, to the Secured Parties, an amount equal to all Obligations owing to them on the date of any such distribution, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of |
any one
over any other) to such Secured Parties in proportion to the unpaid
amounts thereof; and
| (iii) | third, any surplus then remaining shall be paid to the Pledgor or its successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. |
(c) Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of
sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of
the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
(d) The Collateral Agent may exercise any and all rights and remedies of Pledgor in respect of
the Collateral.
(e) All payments received by Pledgor in respect of the Collateral after the occurrence and
during the continuance of an Event of Default shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of Pledgor and shall be
forthwith delivered to the Collateral Agent as Collateral in the same form as so received (with any
necessary indorsement).
SECTION 13. Amendments, etc. with Respect to the Obligations; Waiver of Rights.
Pledgor shall remain obligated hereunder notwithstanding that, without any reservation of rights
against Pledgor and without notice to or further assent by Pledgor, (a) any demand for payment of
any of the Obligations made by the Collateral Agent or any other Secured Party may be rescinded by
such party and any of the Obligations continued, (b) the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, (c) the Credit Agreement, the other
Credit Documents and any other documents executed and delivered in connection therewith and
the Hedge Agreements and any other documents executed and delivered in connection therewith and any
documents entered into with the applicable Administrative Agent or the Collateral Agent or any of
its respective affiliates in connection with treasury, depositary or cash management services or in
connection with any automated clearinghouse transfer of funds may be amended, modified,
supplemented or terminated, in whole or in part, as the applicable Administrative Agent (or the
Required Lenders, as the case may be, or, in the case of any Hedge Agreement or documents entered
into with the applicable Collateral Agent or any of its respective affiliates in connection with
treasury, depositary or cash management services or in connection with any automated clearinghouse
transfer of funds, the party thereto) may deem advisable from time to time, and (d) any collateral
security, guarantee or right of offset at any time held by the Collateral Agent or any other
Secured Party for the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Collateral Agent nor any other Secured Party shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations
or for this Agreement or any property subject thereto. When
making any demand hereunder against
Pledgor, the Collateral Agent or any other Secured Party may, but shall be under no obligation to,
make a similar demand any other person, and any failure by the Collateral Agent or any other
Secured Party to make any such demand or to collect any payments from any other person or any
release of any other person shall not relieve Pledgor in respect of which a demand or collection is
not made or Pledgor not so released of its several obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter of law, of the
Collateral Agent or any other Secured Party against Pledgor. For the purposes hereof “demand”
shall include the commencement and continuance of any legal proceedings.
SECTION 14. Continuing Security Interest; Assignments Under the Credit Agreement;
Release. (a) This Agreement shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon Pledgor and the successors and assigns thereof,
and shall inure to the benefit of the Collateral Agent and the other Secured Parties and their
respective successors, indorsees, transferees and assigns until all the Obligations (other than any
contingent indemnity obligations not then due) under the Credit Documents shall have been satisfied
by payment in full, and the Commitments shall be terminated, notwithstanding that from time to time
during the term of the Credit Agreement and any Hedge Agreement the Borrower may be free from any
obligations.
(b) [Intentionally Omitted.]
(c) Upon any sale or other transfer by Pledgor of any Collateral that is permitted under the
Credit Agreement or upon the effectiveness of any written consent to the release of the security
interest granted hereby in any Collateral pursuant to Section 14.1 of the Credit Agreement, the
obligations of Pledgor with respect to such Collateral shall be automatically released and such
Collateral sold free and clear of the Lien and security interests created hereby.
(d) In connection with any termination or release pursuant to the foregoing paragraph (a) or
(c), the Collateral Agent shall execute and deliver to Pledgor or authorize the filing of, at
Pledgor’s expense, all documents that Pledgor shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to this Section 14 shall
be without recourse to or warranty by the Collateral Agent.
SECTION 15. Reinstatement. Pledgor further agrees that, if any payment made by
Borrower or other Person and applied to the Obligations is at any time annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to
be refunded or repaid, or the proceeds of Collateral are required to be returned by any Secured
Party to the Borrower, its estate, trustee, receiver or any other party, including Pledgor, under
any bankruptcy law, state, federal or foreign law, common law or equitable cause, then, to the
extent of such payment or repayment, any Lien or other Collateral securing such liability shall be
and remain in full force and effect, as fully as if such payment had never been made or, if prior
thereto the Lien granted hereby or other Collateral securing such liability hereunder shall have
been released or terminated by virtue of such cancellation or surrender), such Lien or other
Collateral shall be reinstated in full force and effect, and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect any Lien or other Collateral
securing the obligations of Pledgor in respect of the amount of such payment.
SECTION 16. Notices. All notices, requests and demands pursuant hereto shall be made
in accordance with Section 14.2 of the Credit Agreement. All communications and notices hereunder
to Pledgor shall be given to it in care of the Borrower at the Borrower’s address set forth in
Section 14.2 of the Credit Agreement.
SECTION 17. Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by facsimile or other
electronic transmission), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Collateral Agent and the Borrower.
SECTION 18. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION 19. Integration. This Agreement together with the other Credit Documents represents the agreement of the
Pledgor with respect to the subject matter hereof and there are no promises, undertakings,
representations or warranties by the Collateral Agent or any other Secured Party relative to the
subject matter hereof not expressly set forth or referred to herein or in the other Credit
Documents.
SECTION 20. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by the affected Pledgor and the Collateral Agent in
accordance with Section 14.1 of the Credit Agreement.
(b) Neither the Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument pursuant to Section 20(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event
of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Collateral Agent or any other Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Collateral Agent or any other
Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy that the Collateral Agent or such other Secured Party would otherwise have
on any future occasion.
(c) The rights, remedies, powers and privileges herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided
by law.
SECTION 21. Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
SECTION 22. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Pledgor and shall inure to the benefit of the Collateral Agent and the
other Secured Parties and their respective successors and assigns, except that no Pledgor may
assign, transfer or delegate any of its rights or obligations under this Agreement without the
prior written consent of the Collateral Agent.
SECTION 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 24. Submission to Jurisdiction; Waivers. Each party hereto irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Credit Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address referred to in Section 16 or at such other address of which
the Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by law or shall limit the
right of any party hereto (or any Secured Party) to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 24 any special, exemplary,
punitive or consequential damages.
SECTION 25. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 26. [Intentionally Omitted]
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
| XXXXXXXX RED MAN HOLDING CORPORATION, as Pledgor |
||||||
| By: | /s/ XXXXX XXXXXXX | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Chief Executive Officer and President | ||||||
| Xxxxxx Commercial Paper Inc., as Collateral Agent | ||||||
| By: | /s/ XXXXXX XXXXXX | |||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: Managing Director | ||||||
XXXXXXXX
RED MAN HOLDING CORPORATION
Pledge Agreement
Pledge Agreement
