EXHIBIT 10.8
PLEDGE AGREEMENT
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PLEDGE AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of April 1, 1999, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 25 hereof, the "Pledgors") to
BANKERS TRUST COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
WITNESSETH:
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WHEREAS, RC Transaction Corp. ("Holdings"), RCLLC Acquisition Corp.
(the "Borrower", which term shall mean Resources Connection LCC from and after
the consummation of the Merger), Re:sources Connection LLC, the lenders from
time to time party thereto (the "Lenders"), U.S. Bank National Association, as
Documentation Agent, BankBoston, N.A., as Syndication Agent, and Bankers Trust
Company, as Administrative Agent and Lead Arranger (together with any successor
administrative agent, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of April 1, 1999 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to, and
the issuance of Letters of Credit for the account of, the borrower as
contemplated therein (the Lenders, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Issuing Lender and the Pledgee are herein
called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements or Other Hedging Agreements with
one or more Lenders or any affiliate thereof (each such Lender or affiliate,
even if the respective Lender subsequently ceases to be a Lender under the
Credit Agreement for any reason, together with such Lender's or affiliate's
successors and assigns, if any, collectively, the "Other Creditors," and
together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
unconditionally guaranteed to the Secured Creditors the payment when due of all
Guaranteed Obligations as described therein;
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, it is a condition to the making of Loans to, and the issuance
of Letters of Credit for the account of, the Borrower under the Credit
Agreement that each Pledgor shall have executed and delivered to the Pledgee
this Agreement; and
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WHEREAS, each Pledgor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of all obligations and indebtedness (including,
without limitation, indemnities, Fees and interest thereon) of such Pledgor
to the Lender Creditors, whether now existing or hereafter incurred under,
arising out of, or in connection with the Credit Agreement and the other
Credit Documents to which such Pledgor is a party (including all such
obligations and indebtedness of such Pledgor under any Guaranty to which it
is a party) and the due performance and compliance by such Pledgor with all
of the terms, conditions and agreements contained in the Credit Agreement and
in such other Credit Documents (all such obligations and liabilities under
this clause (i), except to the extent consisting of obligations or
indebtedness with respect to Interest Rate Protection Agreements or Other
Hedging Agreements, being herein collectively called the "Credit Document
Obligations");
(ii) the full and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of all obligations and liabilities owing by
such Pledgor to the Other Creditors under, or with respect to (including by
reason of any Guaranty to which it is a party), any Interest Rate Protection
Agreement and Other Hedging Agreement, whether such Interest Rate Protection
Agreement or Other Hedging Agreement is now in existence or hereafter
arising, and the due performance and compliance by such Pledgor with all of
the terms, conditions and agreements contained therein (all such obligations
and liabilities described in this clause (ii) being herein collectively
called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve the
Collateral (as hereinafter defined) or preserve its security interest in the
Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations or liabilities of such Pledgor referred to in
clauses (i), (ii) and (iii) above, after an Event of Default (which term to
mean and include any Event of Default under, and as defined in, the Credit
Agreement or any payment default by the Borrower under any Interest Rate
Protection Agreement or Other Hedging Agreement and shall, in any event,
include, without limitation, any payment default on any of the Obligations
(as hereinafter defined) shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of
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or realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys' fees and court costs;
and
(v) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 11 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section I being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the Recitals
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hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1)
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of the UCC.
"Agreement" has the meaning set forth in the first paragraph hereof.
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"Certificated Security" has the meaning given such term in Section
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8-102(a)(4) of the UCC.
"Clearing Corporation" has the meaning given such term in Section
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8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof
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"Collateral Accounts" means any and all accounts established and
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maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
" Credit Agreement" has the meaning set forth in the Recitals hereto.
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"Credit Document Obligations" has the meaning set forth in Section 1
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hereof.
"Documentation Agent" has the meaning set forth in the Recitals
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hereto.
"Domestic Corporation" has the meaning set forth in the definition of
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"Stock."
"Event of Default" has the meaning set forth in Section 1 hereof.
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"Financial Asset" has the meaning given such term in Section
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8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the definition of
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"Stock."
"Indemnitees" has the meaning set forth in Section 11 hereof.
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"Instrument" has the meaning given such term in Section 9-105(l)(i)
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of the UCC.
"Investment Property" has the meaning given such term in Section
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9-115(f) of the UCC.
"Lender Creditors" has the meaning set forth in the Recitals hereto.
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"Lenders" has the meaning set forth in the Recitals hereto.
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"Limited Liability Company Assets" means all assets, whether tangible
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or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
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liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Non-Voting Stock" means all capital stock which is not Voting Stock.
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"Notes" means (x) all Intercompany Notes at any time issued to each
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Pledgor and (y) all other promissory notes from time to time issued to, or held
by, each Pledgor.
"Obligations" has the meaning set forth in Section 1 hereof.
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"Other Creditors" has the meaning shall et forth in the Recitals
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hereto.
"Other Obligations" has the meaning set forth in Section 1 hereof.
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"Partnership Assets" means all assets, whether tangible or intangible
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and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership interest
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or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership.
"Pledged Notes" the meaning set forth in Section 3.5 hereof.
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"Pledgee" has the meaning set forth in the first paragraph hereof.
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"Pledgor" has the meaning set forth in the first paragraph hereof.
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"Proceeds" has the meaning given such term in Section 9-306(1) of the
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UCC.
"Required Lenders" has the meaning given such term in the Credit
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Agreement.
"Secured Creditors" has the meaning set forth in the Recitals hereto.
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"Secured Debt Agreements" has the meaning set forth in Section 5
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hereof
"Securities Account" has the meaning given such term in Section
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8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in
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effect from time to time.
"Security" and Securities" has the meaning given such term in Section
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8-102(a)(1-5) of the UCC and shall in any event include all Stock and Notes (to
the extent same constitute "Securities" under Section 8-102(a)(15)).
"Security Entitlement" has the meaning given such term in Section
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8-102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated under the
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laws of the United States or any State or territory thereof (each a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
corporation at any time owned by any Pledgor of any Domestic Corporation and (y)
with respect to corporations not Domestic Corporations (each a "Foreign
Corporation"), all of the issued and outstanding shares of capital stock at any
time owned by any Pledgor of any Foreign Corporation.
"Syndication Agent" has the meaning set forth in the Recitals hereto.
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"Termination Date" has the meaning set forth in Section 20 hereof
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"UCC" means the Uniform Commercial Code as in effect in the State of
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New York from time to time; provided that all references herein to specific
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sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof
"Uncertificated Security" has the meaning given such term in Section
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8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any Foreign
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Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be
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performed by such Pledgor, each Pledgor does hereby grant, pledge and as sign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing security interest in favor of the
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Pledgee for the benefit of the Secured Creditors in, all of the right, title
and interest in and to the following, whether now existing or hereafter from
time to time acquired (collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and all assets of
whatever type or kind deposited by such Pledgor in such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets, Investment Property, moneys,
checks, drafts, Instruments, Securities or interests therein of any type or
nature deposited or required by the Credit Agreement or any other Secured
Debt Agreement to be deposited in such Collateral Account, and all
investments and all certificates and other Instruments (including
depository receipts, if any) from time to time representing or evidencing
the same, and all dividends, interest, distributions, cash and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(b) all Securities owned by such Pledgor from time to time;
(c) all Limited Liability Company Interests owned by such Pledgor from
time to time and all of its right, title and interest in each limited
liability company to which each such interest relates, whether now existing
or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement, operating agreement or otherwise,
whether as contractual obligations, damages, insurance proceeds or
otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of
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any of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing
(and with all of the foregoing rights only to be exercisable upon the
occurrence and during the continuation of an Event of Default); and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof,
(d) all Partnership Interests owned by such Pledgor from time to
time and all of its right, title and interest in each partnership to which
each such interest relates, whether now existing or hereafter acquired,
including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement, or at law or otherwise in respect of such
Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or at law to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to such
Partnership Interests, including any power to terminate, cancel or
modify any partnership agreement, to execute any instruments and to
take any and all other action on behalf of and in the name of any of
such Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to
give or receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand,
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receive, enforce, collect or receipt for any of the foregoing or for
any Partnership Asset, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in
connection with any of the foregoing (with all of the foregoing rights
only to be exercisable upon the occurrence and during the continuation
of an Event of Default); and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof,
(e) all Security Entitlements owned by such Pledgor from time to
time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned by such
Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing; provided
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however, that (x) in the case of any limited liability company
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agreement, operating agreement or partnership agreement with respect
to any Person that is not a Subsidiary of any Pledgor that would
otherwise be included in the Collateral, no security interest in the
right, title and interest of any Pledgor thereunder or therein (except
to receive payments for money due under such agreements) will be
granted pursuant to this Section 3 (and such limited liability company
agreements, operating agreements and partnership agreements shall not
be deemed to constitute a part of the Collateral) for so long as, and
to the extent that, the granting of a security interest in the right,
title and interest of such Pledgor thereunder or therein pursuant to
the terms hereof would result in a breach, default or termination of
such limited liability company agreements, operating agreements or
partnership agreements.
Notwithstanding anything to the contrary contained in this Section 3.
1, (x) except as otherwise provided in Section 8.16 of the Credit Agreement, no
Pledgor (to the extent that it is the Borrower or a Domestic Subsidiary of the
Borrower) shall be required at any time to pledge hereunder more than 65% of the
Voting Stock of any Foreign Corporation and (y) each Pledgor shall be required
to pledge hereunder 100% of any Non-Voting Stock at any time and from time to
time acquired by such Pledgor of any Foreign Corporation.
3.2 Procedures. (a) To the extent that any Pledgor at any time or
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from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the Secured Creditors:
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(i) with respect to a Certificated Security (other than a Certificated
Security credited on the books of a Clearing Corporation), the respective
Pledgor shall physically deliver such Certificated Security to the Pledgee,
indorsed to the Pledgee or indorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation), the
respective Pledgor shall cause the issuer of such Uncertificated Security
(or, in the case of an issuer which is not a Subsidiary of a Pledgor, such
Pledgor shall use its reasonable best efforts to cause such issuer) to duly
authorize and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the Secured Creditors substantially in the form of
Annex G hereto (appropriately completed to the satisfaction of the Pledgee
and with such modifications, if any, as shall be satisfactory to the Pledgee)
pursuant to which such issuer agrees to comply with any and all instructions
originated by the Pledgee without further consent by the registered owner and
not to comply with instructions regarding such Uncertificated Security (and
any Partnership Interests and Limited Liability Company Interests issued by
such issuer) originated by any other Person other than a court of competent
jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated Security,
Partnership Interest or Limited Liability Company Interest credited on the
books of a Clearing Corporation (including a Federal Reserve Bank,
Participants Trust Company or The Depository Trust Company), the respective
Pledgor shall promptly notify the Pledgee thereof and shall promptly take all
actions required (i) to comply with the applicable rules of such Clearing
Corporation and (ii) to perfect the security interest of the Pledgee under
applicable law (including, in any event, under Sections 9-115 (4)(a) and (b),
9-115 (1)(e) and 8-106 (d) of the UCC). The Pledgor further agrees to take
such actions as the Pledgee deems necessary or desirable to effect the
foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability Company
Interest (other than a Partnership Interest or Limited Liability Interest
credited on the books of a Clearing Corporation), (1) if such Partnership
Interest or Limited Liability Company Interest is represented by a
certificate, the procedure set forth in Section 3.2(a)(i) hereof, and (2) if
such Partnership Interest or Limited Liability Company Interest is not
represented by a certificate, the procedure set forth in Section 3.2(a)(ii)
hereof;
(v) with respect to any Note, physical delivery of such Note to the
Pledgee, indorsed to the Pledgee or indorsed in blank; and
(vi) with respect to cash (except as otherwise permitted to be retained by
a Pledgor pursuant to Section 6 hereof), (i) establishment by the Pledgee of
a cash account in the name of such Pledgor over which the Pledgee shall have
exclusive and absolute control and dominion (and no withdrawals or transfers
may be made therefrom by any Person except with the prior written consent of
the Pledgee) and (ii) deposit of such cash in such cash account.
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(b) In addition to the actions required to be taken pursuant to
proceeding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral):
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be requested from time to time by the
Pledgee so that "control" of such Collateral is obtained and at all times
held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing
statements (on Form UCC-1 or other appropriate form) under the Uniform
Commercial Code as in effect in the various relevant States, on form
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), to be filed in the relevant
filing offices so that at all times the Pledgee has a security interest in
all Investment Property and other Collateral which is perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant States,
including, without limitation, Section 9-115(4)(b) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire (by
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purchase, stock dividend or otherwise) any additional Collateral at any time or
from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.1 hereof and,
furthermore, the Pledgor will promptly thereafter take (or cause to be taken)
all action with respect to such Collateral in accordance with the procedures set
forth in Section 3.2 hereof, and will promptly thereafter deliver to the Pledgee
(i) a certificate executed by a principal executive officer of such Pledgor
describing such Collateral and certifying that the same has been duly pledged in
favor of the Pledgee (for the benefit of the Secured Creditors) hereunder and
(ii) supplements to Annexes A through F hereto as are necessary to cause such
annexes to be complete and accurate at such time. Without limiting the
foregoing, each Pledgor shall be required to pledge hereunder any shares of
stock at any time and from time to time after the date hereof acquired by such
Pledgor of any Foreign Corporation, provided that (x) except as provided in
Section 8.16 of the Credit Agreement, no Pledgor (to the extent that it is the
Borrower or a Domestic Subsidiary of the Borrower) shall be required at any time
to pledge hereunder more than 65% of the Voting Stock of any Foreign Corporation
and (y) each Pledgor shall be required to pledge hereunder 100% of any Non-
Voting Stock at any time and from time to time acquired by such Pledgor of any
Foreign Corporation.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
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Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
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3.5 Definition of Pledged Notes. All Notes at any time pledged or
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required to be pledged hereunder are hereinafter called the "Pledged Notes".
3.6 Certain Representations and Warranties Regarding the Collateral.
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Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
of such Pledgor, and the direct ownership thereof, is listed in Annex A hereto;
(ii) the Stock held by such Pledgor consists of the number and type of shares of
the stock of the corporations as described in Annex B hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex B hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex C hereto where
such Pledgor is listed as the lender; (v) the Limited Liability Company
Interests held by such Pledgor consist of the number and type of interests of
the Persons described in Annex D hereto; (vi) each such Limited Liability
Company Interest constitutes that percentage of the issued and outstanding
equity interest of the issuing Person as set forth in Annex D hereto; (vii) the
Partnership Interests held by such Pledgor consist of the number and type of
interests of the Persons described in Annex E hereto; (viii) each such
Partnership Interest constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex E hereto; (ix) the
Pledgor has complied with the respective procedure set forth in Section 3.2(a)
hereof with respect to each itern of Collateral described in Annexes A through E
hereto; and (x) on the date hereof, such Pledgor owns no other Securities,
Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the extent
necessary to enable the Pledgee to perfect its security interest in any of the
Collateral or to exercise any of its remedies hereunder, the Pledgee shall have
the right, subject to the consent of the Pledgor (which consent will not be
unreasonably withheld but, will not otherwise be required if an Event of Default
of the type described in Section 10.05 of the Credit Agreement has occurred), to
appoint one or more sub-agents for the purpose of retaining physical possession
of the Collateral, which may be held (in the discretion of the Pledgee) in the
name of the relevant Pledgor, endorsed or assigned in blank or in favor of the
Pledgee or any nominee or nominees of the Pledgee or a sub-agent appointed by
the Pledgee, and the Pledgee agrees to give such Pledgor prompt notice of any
such appointment.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided, that, in each case, no vote shall be cast or any
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consent, waiver or ratification given or any action taken or omitted to be taken
which would violate or be inconsistent with any of the terms of Agreement, the
Credit Agreement, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"), or which would have the effect of impairing the value of the
Collateral or any part thereof or the position or interests of the Pledgee or
any other Secured Creditor in the Collateral. All such rights of each Pledgor to
vote and to give consents, waivers and ratifications shall cease in case an
Event of Default has occurred and is continuing, and Section 7 hereof shall
become applicable.
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6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor. Subject to the preceding
sentence, the Pledgee shall be entitled to receive directly, and to retain as
part of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property paid or distributed by way of dividend or otherwise in respect of
the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property paid or distributed in respect of the Collateral by way of
stock-split, spin-off, split-up, reclassification, combination of shares
or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets, liquidation
or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
and Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If there shall
have occurred and be continuing an Event of Default, then and in every such
case, the Pledgee shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement, any other Secured Debt
Agreement or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code as in effect
in any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(ii) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
Page 13
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (each Pledgor
hereby irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do
so);
(v) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine, provided that at least 10 days' written
--------
notice of the time and place of any such sale shall be given to the
respective Pledgor. The Pledgee shall not be obligated to make any such
sale of Collateral regardless of whether any such notice of sale has
theretofore been given. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security for
the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid for
and purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or all
of the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and remedy
of the Pledgee provided for in this Agreement or in any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. No notice to or demand
on any Pledgor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Creditor to any other or further
action in any circumstances without notice or demand. The Secured Creditors
agree that this Agreement may be enforced only by the action of the
Administrative Agent or the Pledgee, in each case acting upon the instructions
of the Required Lenders (or, after the date on which all Credit Document
Obligations have been paid in full, the
Page 14
holders of at least the majority of the outstanding Other Obligations) and that
no other Secured Creditor shall have any right individually to seek to enforce
or to enforce this Agreement or to realize upon the security to be granted
hereby, it being understood and agreed that such rights and remedies may be
exercised by the Administrative Agent or the Pledgee or the holders of at least
a majority of the outstanding Other Obligations, as the case may be, for the
benefit of the Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be 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 Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee and each other Secured Creditor and
their respective successors, assigns, employees, agents, affiliates and servants
(individually an "Indemnitee," and collectively the "Indemnitees") from and
against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all reasonable out-of-pocket costs and expenses,
including reasonable attorneys' fees and costs and disbursements, in each case
growing out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any other
Secured Debt Agreement (but excluding any claims, demands, losses, judgments and
liabilities or expenses to the extent incurred by reason of gross negligence or
willful misconduct of such Indemnitee (as finally determined by a court of
competent jurisdiction)). In no event shall the Pledgee be liable, in the
absence of gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for monies
actually received by it in accordance with the terms hereof. If and to the
extent that the obligations of any Pledgor under this Section 11 are
unenforceable for any reason, such Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise
Page 15
(except as referred to in the following sentence) shall have any of the duties,
obligations or liabilities of a member of any limited liability company or
partnership. The parties hereto expressly agree that, unless the Pledgee shall
become the absolute owner of Collateral consisting of a Limited Liability
Company Interest or Partnership Interest pursuant hereto, this Agreement shall
not be construed as creating a partnership or joint venture among the Pledgee,
any other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor or any
limited liability company or partnership either before or after an Event of
Default shall have occurred. The Pledgee shall have only those powers set forth
herein and the Secured Creditors shall assume none of the duties, obligations or
liabilities of a member of any limited liability company or as a partner of any
partnership or any Pledgor except as provided in the last sentence of paragraph
(a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and refile under the Uniform Commercial Code or other applicable
law such financing statements, continuation statements and other documents in
such offices as the Pledgee may reasonably deem necessary and wherever required
by law in order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's attorney-
in-fact, with full authority in the place and stead of such Pledgor and in the
name of such Pledgor or otherwise, to act from time to time solely after the
occurrence and during the continuance of an Event of Default in the Pledgee's
reasonable discretion to take any action and to execute any instrument which the
Pledgee may reasonably deem necessary or advisable to accomplish the purposes of
this Agreement.
Page 16
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set forth
herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good and
marketable title to, all Collateral consisting of one or more Securities
and that it has sufficient interest in all Collateral in which a security
interest is purported to be created hereunder for such security interest to
attach (subject, in each case, to no pledge, lien, mortgage, hypothecation,
security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of
such Pledgor enforceable against such Pledgor in accordance with its terms,
except to the extent that the enforceability hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(iv) except to the extent already obtained or made, no consent of any
other party (including, without limitation, any stockholder or creditor of
such Pledgor or any of its Subsidiaries) and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is
required to be obtained by such Pledgor in connection with (a) the
execution, delivery or performance of this Agreement, (b) the validity or
enforceability of this Agreement (except as set forth in clause (iii)
above), (c) the perfection or enforceability of the Pledgee's security
interest in the Collateral or (d) except for compliance with or as may be
required by applicable securities laws, the exercise by the Pledgee of any
of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or
Page 17
decree of any court, arbitrator or governmental authority, domestic or
foreign, applicable to such Pledgor, or of the certificate of
incorporation, operating agreement, limited liability company agreement,
partnership agreement or by-laws of such Pledgor or of any securities
issued by such Pledgor or any of its Subsidiaries, or of any mortgage, deed
of trust, indenture, lease, loan agreement, credit agreement or other
material contract, agreement or instrument or undertaking to which such
Pledgor or any of its Subsidiaries is a party or which purports to be
binding upon such Pledgor or any of its Subsidiaries or upon any of their
respective assets and will not result in the creation or imposition of (or
the obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated by
this Agreement;
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued and acquired, is fully paid and non-assessable and is
subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constitutes, or when executed by the
obligor thereof will constitute, the legal, valid and binding obligation of
such obligor, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law); and
(viii) the pledge, collateral assignment and delivery to the Pledgee
of the Collateral consisting of Certificated Securities pursuant to this
Agreement creates a valid and perfected first priority security interest in
such Certificated Securities, and the proceeds thereof, subject to no prior
Lien or encumbrance or to any agreement purporting to grant to any third
party a Lien or encumbrance on the property or assets of such Pledgor which
would include the Securities and the Pledgee is entitled to all the rights,
priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which such "control"
may be obtained pursuant to Section 8-106 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
17. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of
each Pledgor is located at the address specified in Annex F hereto. Each Pledgor
will not move its chief executive office except to such new location as such
Pledgor may establish in accordance
Page 18
with the last sentence of this Section 17. No Pledgor shall establish a new
location for such offices until (i) it shall have given to the Pledgee not less
than 15 days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Pledgee may reasonably request and (ii) with respect to such new
location, it shall have taken all action, satisfactory to the Pledgee, to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect. Promptly after establishing a new location for such offices in
accordance with the immediately preceding sentence, the respective Pledgor shall
deliver to the Pledgee a supplement to Annex F hereto so as to cause such Annex
F hereto to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will use its best efforts to cause such registration to be effected (and be kept
effective) and will use its best efforts to cause such qualification and
compliance to be declared effected (and be kept effective) as may be so
requested and as would permit or facilitate the sale and distribution of such
Collateral, including, without limitation, registration under the Securities
Act, as then in effect (or any similar statute then in effect), appropriate
qualifi cations under applicable blue sky or other state securities laws and
appropriate compliance with any other government requirements, provided, that
the Pledgee shall furnish to such Pledgor such information regarding the Pledgee
as such Pledgor may reasonably request in writing and as shall be required in
connection with any such registration, qualification or compliance. Such Pledgor
will cause the Pledgee to be kept advised in writing as to the progress of each
such registration, qualification or compliance and as to the completion thereof,
will furnish to the Pledgee such number of prospectuses, offering circulars or
other
Page 19
documents incident thereto as the Pledgee from time to time may reasonably
request, and will indemnify the Pledgee, each other Secured Creditor and all
others participating in the distribution of such Collateral against all claims,
losses, damages and liabilities caused by any untrue statement (or alleged
untrue statement) of a material fact contained therein (or in any related
registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to such Pledgor by the Pledgee or such other
Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests pursuant to Section
7 hereof, and the Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral, as the case may be, or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Collateral or part thereof shall have been filed under such Securities Act,
(ii) may approach and negotiate with a single possible purchaser to effect such
sale, and (iii) may restrict such sale to a purchaser who will represent and
agree that such purchaser is purchasing for its own account, for investment, and
not with a view to the distribution or sale of such Collateral or part thereof.
In the event of any such sale, the Pledgee shall incur no responsibility or
liability for selling all or any part of the Collateral at a price which the
Pledgee, in its sole and absolute discretion, in good xxxxx xxxxx reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might be realized if the sale were deferred until after
registration as aforesaid.
20. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interest created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
has not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any monies at the time held by the Pledgee or any of
its sub-agents hereunder. As used in this Agreement, "Termination Date" shall
mean the date upon which the Total Commitment and all Interest Rate Protection
Agreements and Other Hedging Agreements have been terminated, no Note under
the Credit Agreement is outstanding (and all Loans have been repaid in full),
all Letters of Credit have been terminated and all Obligations then due and
payable have been paid in full.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 9.02 of the Credit Agreement (other than a sale
to any Pledgor or any Subsidiary thereof) or is otherwise released at the
direction of the Required Lenders (or all
Page 20
Lenders if required by Section 13.12 of the Credit Agreement) and the proceeds
of such sale or sales or from such release are applied in accordance with the
provisions of the Credit Agreement, to the extent required to be so applied, the
Pledgee, at the request and expense of any Pledgor, will duly assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral (and releases therefor) as is then being (or
has been) so sold or released and has not theretofore been released pursuant to
this Agreement.
(c) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
20(a) or (b) hereof, it shall deliver to the Pledgee a certificate signed on
behalf of such Pledgor by a principal executive officer of such Pledgor stating
that the release of the respective Collateral is permitted pursuant to such
Section 20(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with this Section 20.
21. NOTICES, ETC. All notices and communications hereunder shall be
sent or delivered by mail, telegraph, telex, telecopy, cable or overnight
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when received by the party to which such notices and communications
are required or permitted to be given or made under this Agreement. All notices
and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at the address set forth opposite such
Pledgor's signature below;
(b) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Lender Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit Agreement
or (y) at such address as such Lender Creditors have specified in the Credit
Agreement;
(d) if to any Other Creditor at such address as such Other Creditor
shall have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
Page 21
22. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Pledgor directly affected thereby and the
Pledgee (with the written consent of either (x) the Required Lenders (or all of
the Lenders to the extent required by Section 13.12 of the Credit Agreement) at
all times prior to the time on which all Credit Document Obligations have been
paid in full or (y) the holders of at least a majority of the outstanding Other
Obligations at all times after the time on which all Credit Document Obligations
have been paid in full); provided, that any change, waiver, modification or
----------
variance affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each of the two following classes of Secured Creditors, i.e.,
---
whether (i) the Lender Creditors as holders of the Credit Document Obligations
or (ii) the Other Creditors as the holders of the Other Obligations. For the
purpose of this Agreement, the term "Requisite Creditors" of any Class shall
mean each of (i) with respect to the Credit Document Obligations, the Required
Lenders and (ii) with respect to the Other Obligations, the holders of at least
a majority of all obligations outstanding from time to time under the Interest
Rate Protection Agreements and Other Hedging Agreements.
23. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be enforceable by each of the parties hereto and its successors
and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement without the prior consent of the Pledgee. THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. EACH PLEDGOR IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
24. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall become a
Pledgor hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
****
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address:
-------
Three Imperial Promenade RC TRANSACTION CORP.,
Suite 600 as a Pledgor
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention:
Telephone: By: /s/ Xxxxxxx X. Xxxxxx
Telecopier: -------------------------------------------
Title: C.F.O. & Secretary
Three Imperial Promenade RCLLC ACQUISITION CORP.,
Suite 600 as a Pledgor
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention:
Telephone: By: /s/ Xxxxxxx X. Xxxxxx
Telecopier: -------------------------------------------
Title: C.F.O. & Secretary
Three Imperial Promenade RESOURCES CONNECTION LLC,
Suite 600 as a Pledgor
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention:
Telephone: By: /s/ Xxxxxxx X. Xxxxxx
Telecopier: -------------------------------------------
Title: C.F.O. & Secretary
Accepted and Agreed to:
BANKERS TRUST COMPANY, as Pledgee
By: /s/ Xxxx Xxx Xxxxx
------------------------------
Title: Managing Director
