EXHIBIT 30
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Pledge Agreement
Dated as of August 26, 2004
This Pledge Agreement (as modified from time to time, the "Agreement")
has been executed by JMD DELAWARE, INC. as Trustee of the JAFASA CONTINUED
IRREVOCABLE TRUST with an address of 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (the "BORROWER"), EIN 00-0000000, IN FAVOR OF THE NORTHERN TRUST COMPANY,
an Illinois banking corporation, as agent for the Banks, as hereinafter defined,
as secured party (together with any successor or assign the "AGENT"). THE
NORTHERN TRUST COMPANY, as a Lender and SUNTRUST BANK, as a Lender. "TRUST
INSTRUMENT" means the Declaration of Continued Trust for Xxxxxxx Xxxxxx, made as
of December 26, 1991 by Xxxxxx Xxxxxxxxx, as trustee, and/or instruments
governing the trust, as modified from time to time, and all related documents
and instruments. Various capitalized terms used in this Agreement have the
meanings set forth in the Section of this Agreement entitled "DEFINITIONS."
In consideration of the extension of new financial accommodations or
continuation of existing financial accommodations to Borrower by The Northern
Trust Company and SunTrust Bank (together with their successors and assigns, the
"BANKS"), and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Borrower agrees as follows:
1. DEFINITIONS.
(a) As used in this Agreement the following terms shall have the
indicated meanings:
"Affiliate Mutual Funds"-- see Section entitled "AFFILIATE MUTUAL FUNDS
AND HOLDING CORP STOCK."
"Agent Affiliate" means Northern Trust Corporation or any direct or
indirect subsidiary of Northern Trust Corporation (other than Agent itself).
"Collateral"-- see Section entitled "PLEDGE."
"Collateral Value" -- see Section entitled "CONTRACTUAL MINIMUM
LIQUIDITY BALANCE"
"Constituent Documents"-- means the Trust Instrument and all other
documents and instruments pertaining to the formation and ongoing existence of
any person or entity which is not an individual.
"Control Agreement"-- see Section entitled "CONTROL AGREEMENTS."
"Credit Agreement" - see Section entitled "PLEDGE."
"Event of Default"-- has the meaning specified in the Credit Agreement.
"Holding Corp Stock"-- see Section entitled "AFFILIATE MUTUAL FUNDS AND
HOLDING CORP STOCK."
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"Intermediary"-- see Section entitled "PLEDGE."
"Investment Grade", as to a security, means a security bearing a
current rating of "BBB-" (BBB minus) or higher by Standard & Poor's or Fitch
Investors Service, or "Baa3" or higher by Moody's.
"Liabilities"-- see Section entitled "LIABILITIES."
"Listed," as to a security, means traded domestically on any national
securities exchange or in the NASDAQ market.
"Loan Documents" - see Section entitled "PLEDGE."
"Majority Banks" has the meaning specified in the Credit Agreement.
"Marketable Securities" means listed common stock, mutual funds
(readily marketable), money market mutual funds, corporate bonds, municipal
bonds, commercial paper, U.S. Treasury and U.S. government agency securities,
U.S. Government sponsored agency securities, time deposits and money market
deposit accounts; so long as all fixed income securities are Investment Grade,
all common stock must maintain published market value of at least $10.00 per
share, and all deposit accounts must be maintained with the Agent, any Agent
Affiliate or any Bank and none of the foregoing, except Carnival Corporation
common stock, shall be subject to restrictions on sale.
"Minimum Liquidity Balance"-- see Section entitled "CONTRACTUAL
MINIMUM LIQUIDITY BALANCE."
The term "person" includes both individuals and organizations.
"Related Document(s)" means any note, agreement, guaranty or other
document or instrument previously, now or hereafter delivered by Borrower to
Agent in connection with the Liabilities or this Agreement. The term "related
document," if not initial-capitalized, means a document related to another
referenced document.
"Securities Account"--see Section entitled "PLEDGE."
"Trust Instrument"--see preamble.
"Unmatured Event of Default" means any event or condition that would
become an Event of Default with notice or the passage of time or both.
"Unrestricted" means, as to a security, that the security is not in any
way subject to or covered by Rules 144 or 145 of the United States Securities
and Exchange Commission, as in effect from time to time, or any successor
regulations, or to any stockholders' agreement or other consensual restriction
on sale or transfer.
(b) As used in this Agreement, unless otherwise specified: the term
"including" means "including without limitation"; the term "days" means
"calendar days"; and terms such as
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"herein," "hereof" and words of similar import refer to this Agreement as a
whole. Unless otherwise defined herein, all terms (including those not
capitalized) that are defined in the Uniform Commercial Code of New York shall
have the same meanings herein as in such Code, as such Code may be amended from
time to time. Unless the context requires otherwise, wherever used herein the
singular shall include the plural and vice versa, and the use of one gender
shall also denote the others. Captions herein are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof;
references herein to sections or provisions without reference to the document in
which they are contained are references to this Agreement.
2. PLEDGE. Borrower grants to Agent for the benefit of itself and the
Banks a continuing security interest in the following, in each case whether
certificated or uncertificated, whether now owned or hereafter acquired,
wherever located (any or all of such, the "COLLATERAL"):
(a) Securities account nos. 26-27309, 26-27311, 26-27312 and
26-27313 with Northern Trust Bank, FSB ("NORTHERN, AS INTERMEDIARY"), in the
name of Borrower or such other designation as may be required by Northern as
Intermediary, any additional successor and/or replacement accounts (if, as to
any such additional accounts, Borrower confirms in writing that such accounts
are covered by this Agreement), and any and all securities, security
entitlements, financial assets, investment property, commodity contracts, money,
instruments, documents, goods, chattel paper, accounts, general intangibles,
deposit accounts, partnership and limited liability company interests,
certificates of deposit, and other property and rights of any nature now or
hereafter held in or constituting part of such accounts (such named account and
all such additional, successor and replacement accounts collectively, the
"NORTHERN SECURITIES ACCOUNT").
(b) Securities account no. X00000000 with JPMorgan Chase Bank
("JPMORGAN CHASE BANK, AS "INTERMEDIARY"; each of Northern as Intermediary,
SunTrust as Intermediary and JPMorgan Chase Bank as Intermediary being called an
"INTERMEDIARY"), in the name of Borrower or such other designation as may be
required by JPMorgan Chase as Intermediary, any additional successor and/or
replacement accounts (if, as to any such additional accounts, Borrower confirms
in writing that such accounts are covered by this Agreement), and any and all
securities, security entitlements, financial assets, investment property,
commodity contracts, money, instruments, documents, goods, chattel paper,
accounts, general intangibles, deposit accounts, partnership and limited
liability company interests, certificates of deposit, and other property and
rights of any nature now or hereafter held in or constituting part of such
account (such named account and all such additional, successor and replacement
accounts collectively, the "JPMORGAN CHASE SECURITIES ACCOUNT"). Each of the
Northern Securities Account and the JPMorgan Chase Securities Account shall be
called a "SECURITIES ACCOUNT".
(c) With respect to any Collateral referred to in (a) and (b) but
without limiting (a) and (b):
(i) all stock and bond powers, certificates and instruments;
(ii) all additions, replacements, substitutions, interest,
cash and stock dividends, warrants, options, and other rights and
amounts paid, accrued, received, receivable, or distributed with
respect thereto from time to time;
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(d) With respect to the foregoing, all products and proceeds
thereof, including insurance proceeds and payments under the Securities Investor
Protection Act of 1970, as amended.
3. LIABILITIES. The Collateral shall secure the payment and performance of
all obligations and liabilities of Borrower:
(a) to each Bank and the Agent howsoever created, evidenced or
arising, whether direct or indirect, absolute or contingent, now due or to
become due, or now existing or hereafter arising, joint, several or joint and
several, including obligations under or with respect to future advances, under
or with respect to the Credit Agreement dated as of August 26, 2004 among the
Borrower, The Northern Trust Company, SunTrust Bank and The Northern Trust
Company, as agent, as amended, restated, renewed or replaced (the "CREDIT
AGREEMENT") and all Loan Documents, as defined in the Credit Agreement;
(b) to each Bank and the Agent under or in connection with: (i)
Related Documents; and (ii) any expenses (including attorneys' fees, legal costs
and expenses, and time charges of attorneys who may be employees of the Agent or
any Bank, in each case whether in or out of court, in original or appellate
proceedings or in bankruptcy) incurred or paid by the Agent or any Bank in
connection with the enforcement or preservation of its rights hereunder or under
any Related Document
(any or all obligations and liabilities
described in the foregoing portion of this
Section, the "LIABILITIES"). This Agreement
shall continue and remain in effect
notwithstanding that at any particular time
there may be no Liabilities outstanding.
4. CONTROL AGREEMENT. The following additional provisions pertaining to
the Intermediary do not limit any rights or powers of the Agent and the Banks
under other provisions hereof:
(a) Borrower agrees to cause each Intermediary to hold the
Collateral for the Agent. Borrower agrees to execute and deliver to the Agent
Control Agreements with each Intermediary in the forms mutually agreed upon
(each "CONTROL AGREEMENT") as to any Collateral consisting of a Securities
Account or specified securities therein. The Control Agreement shall constitute
an agreement among Borrower, the applicable Intermediary and the Agent.
(b) Except as otherwise specified herein or in the applicable
Control Agreement, the applicable Intermediary shall act or not act with respect
to the Collateral solely in accord with entitlement orders and instructions
(including instructions to sell or otherwise dispose of any Collateral and to
deliver any Collateral to the Agent) given from time to time by the Agent. The
Agent may exercise any rights and powers hereunder or under the Control
Agreements without the consent of Borrower.
(c) Borrower hereby directs and authorizes each Intermediary, as
agent with respect to its Securities Account, to effect additions, replacements
and substitutions of Collateral on
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behalf of Borrower pursuant to instructions of Borrower. Without limiting any
other provision hereof, all such additions, replacements and substitutions shall
be conclusively deemed to be "Collateral" hereunder, and Borrower shall be
deemed to have granted a security interest in such items and assigned such items
to the Agent, as more fully provided above. All additions, substitutions and
replacements shall be satisfactory to the Agent in its sole discretion, and
(without limiting any other provision hereof or of any Control Agreement) if the
Agent so requests no addition, substitution or replacement may be made except
with the prior consent of the Agent.
5. CONTRACTUAL MINIMUM LIQUIDITY BALANCE.
(a) Borrower agrees to take all steps at the times described below,
including pledging additional Collateral and placing additional assets in the
Northern Securities Account, to ensure that the market value of the Collateral
and of any Affiliate Mutual Funds held in the Northern Securities Account (which
are not Collateral), as such market value is determined by the Agent, at all
times equals or exceeds the "Minimum Liquidity Balance." For purposes of this
Agreement "MINIMUM LIQUIDITY BALANCE" means the amount necessary to ensure that
the outstanding amount of the Liabilities does not exceed the sum of the
below-indicated percentages of the market values of the below-indicated types of
assets which are Collateral:
(i) 50% Carnival Corporation common stock.
(ii) 70% Marketable Securities.
(Such applicable percentage multiplied by
applicable Collateral shall be called the
"Collateral Value.") The Borrower agrees that
it will take all steps necessary to cause the
outstanding Liabilities to be less than the
Minimum Liquidity Balance within five
Business Days if the outstanding Loans equal
or exceed 70% of the value of Carnival
Corporation stock plus 70% of the value of
the Marketable Securities or within one
Business Day, if the value of Carnival
Corporation common stock is $23.50 or less
per share (adjusted for any recapitalization,
stock split or the like as of the date
hereof).
(b) To the extent the value of any single holding (other than of
common stock of Carnival Corporation) exceeds 10% of the total Minimum Liquidity
Balance (excluding common stock of Carnival Corporation and treating all
Affiliate Mutual Funds, as hereinafter defined as a single holding ), such
excess value shall be excluded in the calculation of the Minimum Liquidity
Balance. Collateral not indicated in the above list continues to be Collateral,
but its market value is not included in determining compliance with the Minimum
Liquidity Balance requirement.
(c) Any Collateral that is part of a securities lending program is
not eligible for inclusion in any Minimum Liquidity Balance computation. Any
Collateral in which the Agent does not have a first perfected security interest
shall not be included in determining compliance
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with the Minimum Liquidity Balance Requirement (it being understood that the
Agent will undertake all reasonable steps necessary and available under the laws
of the State of New York to perfect and maintain its perfection over such
security interest). The above list shall not be construed to imply that the
Agent has agreed to accept any particular assets as Collateral, and does not
take precedence over any Regulation U or other legal requirements (which
requirements, as reasonably determined by the Agent, Borrower agrees to abide
by).
(d) As a matter of clarification, the provisions of this Section
shall in no manner limit or alter the collateral pledged under the Section
hereof entitled "PLEDGE," and, further, shall not be deemed to effect a
collateral pledge of any Affiliate Mutual Funds held in the Securities Account.
6. SECURITIES ACCOUNT WITHDRAWALS. Subject to Section 11(b), upon
Borrower's request, the Agent shall direct the Intermediary to permit
withdrawals from the Northern Securities Account so long as after any such
withdrawal Borrower will be in compliance with any "Minimum Liquidity Balance"
requirement set forth in this Agreement and no Event of Default or Unmatured
Event of Default will have occurred and be continuing. Notwithstanding the
foregoing, Collateral, other than common stock of Carnival Corporation, may not
be withdrawn unless the Collateral Value of the remaining Collateral, other than
common stock of Carnival Corporation, shall be at least $15,000,000.
7. AFFILIATE MUTUAL FUNDS AND HOLDING CORP STOCK.
(a) Notwithstanding any other provision hereof or of any Control
Agreement to the contrary or inconsistent herewith:
(x) the Collateral shall not include: (A) units of any
registered investment company issued by any of the Agent's affiliates
(as defined in the Federal Reserve Act, Section 23A)(such units,
"AFFILIATE MUTUAL FUNDS"); and (B) stock or other equity interests in
any holding company of any Bank ("HOLDING CORP STOCK"); and
(y) balances in any Securities Account pledged consisting of
AFFILIATE MUTUAL FUNDS shall be INCLUDED in determining compliance with
any "Minimum Liquidity Balance" requirement under this Agreement.
HOLDING CORP STOCK SHALL BE EXCLUDED in determining compliance with any
"Minimum Liquidity Balance" requirement under this Agreement.
(b) Debtor hereby irrevocably directs and authorizes Agent and any
Intermediary, effective upon the Agent's request, which may be made in the
Agent's sole discretion at any time and from time to time whether or not an
Event of Default or Unmatured Event of Default has occurred, to take all steps
necessary or appropriate in the judgment of the Agent or any Intermediary to
ensure that the Securities Account and assets in it do not consist in whole or
in part of Affiliate Mutual Funds. The foregoing includes causing any Securities
Account not to hold or retain Affiliate Mutual Funds, whether as a result of a
"sweep" or otherwise, and purchasing such substitute investment(s) or
deposit(s), including bank deposits with the Agent (whether or not interest
bearing), as the Agent or Intermediary shall deem appropriate at any time and
from time to time, whether with or without notice to or consent of the Borrower.
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(c) Borrower agrees not to (or to direct or authorize any
Intermediary to) sell or otherwise dispose of any other securities or assets now
or hereafter in any Securities Account in order to purchase additional Holding
Corp Stock (whether or not held in any Securities Account), unless after any
such sale or other disposition Borrower will be in compliance with any Minimum
Liquidity Balance requirement set forth herein and no Event of Default or
Unmatured Event of Default will have occurred and be continuing. Likewise,
additional Holding Corp Stock may be added to the Securities Account with funds
not part of or proceeds of the Securities Account if and only if at such time
any Minimum Liquidity Balance requirement is met and no Event of Default or
Unmatured Event of Default has occurred and is continuing.
(d) To the fullest extent permitted by law, and without limiting the
Agent's rights under the Section hereof entitled "Rights of the Agent," Borrower
hereby appoints the Agent and the Intermediary as Borrower's attorneys-in-fact,
which appointment is and shall be deemed to be irrevocable and coupled with an
interest, for purposes of performing acts and signing and delivering any
agreement, document or instrument on behalf of Borrower in order to effectuate
this Section. Borrower immediately will reimburse the Agent and any Intermediary
for all expenses so incurred.
8. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to the Agent and the Banks that:
(a) Borrower's exact legal name is as set forth in the heading to
this Agreement. If Borrower is an organization: Borrower's type of organization,
jurisdiction of organization or formation, and organizational identification
number are as set forth in the preamble to this Agreement; and Borrower's place
of business or, if Borrower has more than one place of business, Borrower's
chief executive office is located at the address set forth above; and, since
August 9, 2000, Borrower has not been organized or formed in any jurisdiction
other than the jurisdiction set forth in the preamble to this Agreement. All
Collateral is located in one of the fifty states of the United States of
America. Further, except as and if specifically disclosed by Borrower to the
Agent IN WRITING prior to the execution of this Agreement, during the five (5)
years and six months prior to the date of this Agreement:
(i) Borrower has not been known by any legal name different
from the one set forth in the heading of this Agreement, except "Xxx
Xxxxxx Continued Irrevocable Trust for Xxxxxxx Xxxxxx."
(ii) Since August 9, 2000, Borrower's place of business has
been at Borrower's address set forth above.
(b) Borrower is validly existing and in good standing under the
laws of its state of organization or formation, and is duly qualified, in good
standing and authorized to do business in each jurisdiction where failure to do
so might have a material adverse impact on the assets, condition or prospects of
Borrower. The execution, delivery and performance of this Agreement and all
Related Documents are within Borrower's powers and have been authorized by all
necessary action required by law and (unless Borrower is an individual)
Borrower's Constituent Documents.
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(c) The execution, delivery and performance of this Agreement and
all Related Documents have received any and all necessary governmental approval,
and do not and will not contravene or conflict with any provision of law, any
Constituent Document or any agreement affecting Borrower or its property.
(d) There has been no material adverse change in the business,
condition, properties, assets, operations or prospects of Borrower since the
date of the latest financial statements provided by or on behalf of Borrower to
the Agent.
(e) No financing statement, mortgage, notice of judgment, or any
similar instrument (unless filed on behalf of the Agent) covering any of the
Collateral is on file in any public office.
(f) Borrower is the lawful owner of and has rights in or power to
transfer all Collateral, free and clear of all liens, pledges, charges,
mortgages, and claims other than any in favor of the Agent, except liens for
current taxes not delinquent.
(g) Borrower has filed or caused to be filed all federal, state,
and local tax returns that are required to be filed, and has paid or has caused
to be paid all of its taxes, including any taxes shown on such returns or on any
assessment received by it, to the extent that such taxes have become due.
(h) Except for federal and state securities laws generally
applicable to the sale, transfer or redemption of marketable securities which
are held by members of the general public, the sale, transfer and redemption of
the Collateral by the Agent: (A) are not prohibited or regulated by any federal
or state law or regulation or any agreement binding upon Borrower, including any
Constituent Document; and (B) require no registration or filing with, or consent
or approval of, any governmental body, regulatory authority or securities
exchange.
(i) Borrower has not acquired any Collateral (other than Carnival
Corporation common stock) in a transaction not involving a public offering
within the meaning of applicable federal and state securities laws. Borrower is
not an executive officer, director or other "affiliate" (as contemplated by
Rules 144 and 145 of the Federal Securities and Exchange Commission) of any
issuer of any Collateral (other than Carnival Corporation common stock).
(j) The shares of Carnival Corporation stock that are Collateral
are duly and validly authorized and issued, non-assessable, fully paid and paid
for, and outstanding.
(k) The execution, delivery and performance of this Agreement and
all Related Documents are for proper trust purposes and are within Borrower's
powers under the Trust Instrument and applicable law. Borrower acknowledges that
the Agent is relying upon this Agreement and the Related Documents in extending
any loans or other credit secured hereby, and that the Agent would not extend
such credit if Borrower did not execute and deliver this Agreement and the
Related Documents.
9. DEPOSITORIES; SUB-AGENTS AND NOMINEES.
(a) Without limiting any other provision hereof, the Agent may at
its option from time to time transfer, or cause any Intermediary to transfer,
the Collateral into a "pledge
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position" at any depository now or hereafter holding the Collateral, and do or
cause to be done, execute (or cause to be executed) such other documents, and
take (or cause to be taken) such other actions as the Agent may deem necessary
or appropriate in connection therewith.
(b) The Agent shall have the right to appoint one or more sub-agents
for the purpose of retaining physical possession of any certificates or
instruments representing or evidencing the Collateral, which may be held (in the
discretion of the Agent) in the name of the Agent or any nominee or nominees of
the Agent or a sub-agent appointed by the Agent. In addition, the Agent shall at
all times have the right to exchange certificates or instruments representing or
evidencing Collateral for certificates or instruments of smaller or larger
denominations for any purpose consistent with its performance of this Agreement.
(c) For the better perfection of the Agent's rights in and to the
Collateral and to facilitate implementation of such rights, Borrower shall, upon
written request of the Agent, cause all the certificates, notes, documents and
other instruments evidencing, representing or otherwise comprising the
Collateral to be registered or otherwise put into the name of the Agent or a
nominee or nominees of the Agent.
(d) Borrower hereby consents and agrees that the issuers of, or any
depository, registrar, transfer agent or similar party for any of, the
Collateral shall be entitled to accept the provisions hereof as conclusive
evidence of the right of the Agent to effect any transfer pursuant to Section
9(b) hereof, notwithstanding any notice or direction to the contrary heretofore
or hereafter given by Borrower or any other person to any such issuer or any
such depository, registrar, transfer agent or similar party.
10. VOTING & MISCELLANEOUS RIGHTS. Unless an Event of Default has occurred
and is continuing, Borrower may exercise any and all voting rights with respect
to the Collateral. If an Event of Default has occurred and is continuing, the
Agent (and only the Agent) may exercise any and all such rights. Any other
rights (i.e., other than voting and trading rights with respect to the
Collateral) may be exercised by, and only by, the Agent, except as otherwise
provided herein or in the Control Agreement.
11. GENERAL COVENANTS. Borrower agrees that so long as this Agreement
remains in effect, it will:
(a) NOTIFY THE AGENT IN WRITING AT LEAST THIRTY (30) DAYS IN
ADVANCE OF:
(i) ANY CHANGE WHATSOEVER IN THE NAME OF BORROWER;
(ii) THE STATE OR JURISDICTION IN WHICH BORROWER IS ORGANIZED
OR FORMED OR, IF BORROWER IS AN INDIVIDUAL, IN WHICH BORROWER'S
PRINCIPAL RESIDENCE IS LOCATED;
(iii) ANY NEW NAMES UNDER WHICH BORROWER INTENDS TO DO
BUSINESS; OR
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(iv) ANY NEW ADDRESSES AT OR FROM WHICH BORROWER INTENDS TO
DO BUSINESS OR TO KEEP COLLATERAL OF ANY KIND.
Borrower shall in any event keep all
Collateral within one or more states of the
United States of America.
(b) PROMPTLY DELIVER ANY CASH, SECURITIES OR OTHER PROPERTY RECEIVED
WITH RESPECT TO THE COLLATERAL, WHETHER AS PROCEEDS OF THE DISPOSITION THEREOF,
DIVIDENDS WITH RESPECT THERETO, OR OTHERWISE, TO BE HELD BY THE AGENT AS
COLLATERAL. NOTWITHSTANDING THE FOREGOING, UNLESS AN EVENT OF DEFAULT OR
UNMATURED EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, BORROWER MAY CONTINUE
TO RECEIVE AND RETAIN INTEREST AND REGULAR CASH DIVIDENDS ON THE COLLATERAL.
(c) Defend the Collateral against the claims and demands of all
persons other than the Agent and promptly pay all taxes, assessments, and
charges upon the Collateral. Borrower agrees not to sign, file, or authenticate,
or authorize or permit the signing, filing or authentication of, any financing
statements or other documents creating or perfecting a lien upon or security
interest in any of the Collateral except in favor of the Agent, or otherwise
create, suffer, or permit to exist any liens or security interests upon any
Collateral other than in favor of the Agent, except tax liens, provided that
such liens are removed before related taxes become delinquent.
(d) Sign, file, authenticate, and authorize the signing, filing and
authenticating of, such financing statements and other documents (and pay the
cost of filing and recording the same in all public offices deemed necessary by
the Agent), and do such other acts, as the Agent may request to establish and
maintain a valid and perfected security interest in the Collateral free and
clear of all other liens and claims, except tax liens, provided that such liens
are removed before related taxes become delinquent.
(e) Keep at its address for notices set forth above its records
concerning the Collateral, which records shall be of such character as will
enable the Agent to determine at any time the status of the Collateral; and
permit the Agent from time to time to inspect, audit, and make copies of, and
extracts from, all records and all other papers in the possession or control of
Borrower pertaining to the Collateral.
(f) Provide to the Agent from time to time such financial statements
of and other information concerning the Collateral and Borrower, as the Agent
shall reasonably request and hereby authorizes the Agent to prepare and file
such financing statements without the signature of the Borrower.
(g) Except if and to the extent specifically permitted by this
Agreement, not sell, transfer, lease, grant a license or option or similar right
with respect to, or otherwise dispose of, or agree to dispose of, any
Collateral.
12. DEFAULT REMEDIES.
(a) In addition to the rights and remedies set forth in the Credit
Agreement, upon the occurrence and during the continuance of any Event of
Default, the Agent may exercise any
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rights and remedies under this Agreement, any Related Document or other document
or instrument (including any Related Document evidencing Liabilities or
pertaining to Collateral), and at law or in equity.
(b) If any Event of Default shall have occurred and be continuing,
then, in addition to having the right to exercise any rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect in New
York and any State in which any Collateral is located, the Agent may, in its
sole discretion:
(i) without being required to give any prior notice to
Borrower apply the cash (if any) then held by it hereunder toward the
Liabilities first to the Liabilities under the Credit Agreement and the
Loan Documents on a pro rata basis, and second to all other Liabilities
on a pro rata basis; and
(ii) if there shall be no such cash or the cash so applied
shall be insufficient to pay all obligations in full, sell the
Collateral, or any part thereof, at any public or private sale, for
cash, upon credit or for future delivery, as the Agent shall deem
appropriate, provided, however, that Borrower shall be credited with
proceeds thereof only when the proceeds are actually received in cash
by the Agent, and such sale shall be deemed commercially reasonable.
The Agent shall be authorized at any such sale (to the extent it deems
it advisable to do so, in its sole discretion) to restrict the
prospective bidders or purchasers to persons who will represent and
agree that they are purchasing the Collateral then being sold for their
own account for investment and not with a view to the distribution or
resale thereof, and upon consummation of any such sale the Agent shall
have the right to assign, transfer and deliver to the purchasers
thereof the Collateral so sold. Each such purchaser at any such sale
shall hold the property sold absolutely free from any claim or right on
the part of Borrower. BORROWER HEREBY WAIVES (TO THE EXTENT PERMITTED
BY LAW) ALL RIGHTS OF REDEMPTION, STAY AND/OR APPRAISAL WHICH IT NOW
HAS OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER ANY RULE OF LAW OR
STATUTE NOW EXISTING OR HEREAFTER ENACTED. The Agent has no obligation
to marshal Collateral or to clean up or otherwise prepare Collateral
for sale, and may specifically disclaim any warranties as to the
Collateral, including those of title, merchantability, and fitness for
a particular purpose. The Agent may comply with any applicable local,
state or federal law requirements in connection with a disposition of
Collateral, and compliance will not be considered adversely to affect
the commercial reasonableness of any sale of Collateral. Borrower
grants to the Agent the right to enter into or on any premises where
Collateral may be located for the purposes of exercising any remedies
upon the occurrence of an Event of Default. The Agent shall be deemed
to have exercised reasonable care in the custody and preservation of
Collateral if it takes such action for that purpose as Borrower
requests in writing, but failure to do so shall not be deemed a failure
to exercise ordinary care; no failure of the Agent to preserve or
protect any right with respect to Collateral against prior parties, or
to do any act with respect to preservation of Collateral not so
requested by the Agent, shall be deemed of itself a failure to exercise
reasonable care in the custody or preservation of Collateral. To the
extent that notice of sale shall be required to be given by law, the
Agent shall give the Borrower at least ten days' written notice of any
such public sale or the date after which any such private sale or sales
will be held. The Agent shall not be obligated to make any sale of
Collateral if it shall determine
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not to do so, regardless of the fact that notice of sale of Collateral
may have been given. The Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned
from time to time by announcement at the time and place fixed for sale,
and such sale may, without further notice, be made at the time and
place to which the same was so adjourned. In case sale of all or any
part of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by the Agent until the sale price is
paid by the purchaser thereof, but the Agent shall not incur any
liability in case any such purchaser shall fail to take up and pay for
the Collateral so sold; in the case of any such failure, such
Collateral may be sold again upon like notice. As an alternative to
exercising the power of sale herein conferred upon it, the Agent may
proceed by a suit at law or in equity to foreclose this Agreement and
to sell the Collateral, or any portion thereof, pursuant to a judgment
or decree of a court of competent jurisdiction. Except as and if
otherwise required by law, any proceeds of the Collateral sold or
disposed of pursuant hereto shall be applied toward the Liabilities
first to the Liabilities under the Credit Agreement and the Loan
Documents on a pro rata basis and second to all other Liabilities on a
pro rata basis. Any balance remaining shall be returned to Borrower.
(c) The Majority Banks may, by written notice to Borrower, at any
time and from time to time, waive any Event of Default or Unmatured Event of
Default, which shall be for such period and subject to such conditions as shall
be specified in any such notice. In the case of any such waiver, Banks, the
Agent and Borrower shall be restored to their former position and rights
hereunder, and any Event of Default or Unmatured Event of Default so waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to or impair any subsequent or other Event of Default or Unmatured Event of
Default. No failure to exercise, and no delay in exercising, on the part of the
Agent 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.
The rights and remedies of Agent herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
13. RIGHTS OF THE AGENT. Without limiting any other rights the Agent has
under the law, the Agent may, from time to time, at its option (but shall have
no duty to):
(a) if an Event of Default has occurred and is continuing, perform
any agreement of Borrower hereunder that Borrower shall have failed to perform;
(b) if an Event of Default has occurred and is continuing, take any
other action which the Agent deems necessary or desirable for the preservation
of the Collateral or the Agent's interest therein and the carrying out of this
Agreement, including: (i) any action to collect or realize upon the Collateral;
(ii) the discharge of taxes, liens, security interests or other encumbrances at
any time levied or placed on the Collateral; (iii) the discharge or keeping
current of any obligation of Borrower having effect on the Collateral; (iv)
receiving, endorsing and collecting all checks and other orders for the payment
of money made payable to Borrower representing any dividend, interest payment or
other distribution payable or distributable in respect of the Collateral or any
part thereof, and giving full discharge for the same; and (v) causing any person
or entity having possession of any Collateral to acknowledge that such person or
entity holds such Collateral for the benefit of the Agent; and
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(c) sign, file, authenticate, and authorize the signing, filing and
authentication of, such financing statements and other documents respecting any
right of the Agent in the Collateral, in any and all jurisdictions as the Agent
shall determine in its discretion.
Borrower hereby appoints the Agent as
Borrower's attorney in fact, which
appointment is and shall be deemed to be
irrevocable and coupled with an interest, for
purposes of performing acts and signing and
delivering any agreement, document, or
instrument, on behalf of Borrower in
accordance with this Section. Borrower
immediately will reimburse the Agent for all
expenses so incurred by the Agent.
14. THE AGENT MAY ALSO BE INTERMEDIARY. Borrower hereby irrevocably waives,
releases and forever relinquishes any claim or right of any nature whatsoever
based upon the fact that Intermediary may be the Agent or a Bank or an Agent
Affiliate, and hereby irrevocably consents to any such circumstance. The rights
and powers of the Agent and the Banks shall not in any way be restricted by
reason of any such present or future circumstance.
15. FURTHER ASSURANCES. Borrower agrees to do (or cause to be done) such
further acts and things, and to execute and deliver (or cause to be executed and
delivered) such additional conveyances, assignments, agreements, and
instruments, as the Agent may at any time reasonably request in connection with
the Collateral or any part thereof or in order better to assure and confirm unto
the Agent its rights, powers and remedies hereunder.
16. INVESTMENT DECISIONS. Borrower agrees that, except for a duty of good
faith, the Agent shall have no duty to Borrower with regard to decisions which
the Agent may make with regard to purchasing, holding or selling Collateral
while the same shall be under the Agent's control.
17. NOTICES. All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been given or made five business days
after a record has been deposited in the mail, postage prepaid, or one business
day after a record has been deposited with a recognized overnight courier,
charges prepaid or to be billed to the sender, or on the day of delivery if
delivered manually with receipt acknowledged, in each case addressed or
delivered if to the Agent to its banking office indicated above (Attention:
Xxxxxxx Xxxxxxx) and if to Borrower to its address set forth above, or to such
other address as may be hereafter designated in writing by the respective
parties hereto by a notice in accord with this Section.
18. MISCELLANEOUS. This Agreement, the Related Documents, and any document
or instrument executed in connection herewith or therewith, unless in each case
otherwise specifically provided therein: (i) shall be governed by and construed
in accordance with the internal law of the State of New York, except to the
extent if any that the Uniform Commercial Code of the State of New York provides
for the application of the law of a different State; and (ii) shall be deemed to
have been executed in the State of New York. This Agreement shall bind Borrower
and its successors and assigns, as well as all persons and entities who become
bound as a Borrower to this Agreement, and shall inure to the benefit of the
Agent, its successors and
Page 13 of 15
assigns, except that neither Borrower nor any person or entity who or which
becomes bound as a Borrower hereto may transfer or assign any rights or
obligations hereunder without the prior written consent of the Agent. Borrower
agrees to pay upon demand all expenses (including attorneys' fees, legal costs
and expenses, and time charges of attorneys who may be employees of the Agent,
in each case whether in or out of court, in original or appellate proceedings or
in bankruptcy) incurred or paid by the Agent or any holder hereof in connection
with the enforcement or preservation of its rights hereunder, under any Related
Document, or under any document or instrument executed in connection herewith or
therewith. This Agreement may be executed in two or more counterparts, and (if
there is more than one party) by each party on separate counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
19. WAIVER OF JURY TRIAL, ETC. BORROWER AND (BY ITS ACCEPTANCE HEREOF AS
PROVIDED BELOW) THE AGENT HEREBY IRREVOCABLY AGREE THAT ALL SUITS, ACTIONS OR
OTHER PROCEEDINGS WITH RESPECT TO, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY RELATED DOCUMENT SHALL BE SUBJECT TO LITIGATION IN COURTS
HAVING SITUS WITHIN OR JURISDICTION OVER THE STATE OF NEW YORK AND IN THE COUNTY
OF MANHATTAN. BORROWER AND (BY ITS ACCEPTANCE HEREOF AS PROVIDED BELOW) THE
AGENT HEREBY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURT LOCATED IN OR HAVING JURISDICTION OVER SUCH COUNTY AND STATE, AND
HEREBY IRREVOCABLY WAIVE ANY RIGHT THEY OR ANY OF THEM MAY HAVE TO REQUEST OR
DEMAND TRIAL BY JURY, TO TRANSFER OR CHANGE THE VENUE OF ANY SUIT, ACTION OR
OTHER PROCEEDING BROUGHT IN ACCORDANCE WITH THIS SECTION, OR TO CLAIM THAT ANY
SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NO PARTY HERETO MAY
SEEK OR RECOVER PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY PROCEEDING BROUGHT
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED DOCUMENT.
Page 14 of 15
BORROWER:
JAFASA CONTINUED IRREVOCABLE TRUST
By: JMD Delaware, Inc., not individually but solely as Trustee
By: /s/ Xxxx X. X'Xxxx
Name: Xxxx X. X'Xxxx
Title: Vice President
ACCEPTED:
THE NORTHERN TRUST COMPANY, as Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxx
Print Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxxxx X'Xxxxxx
Print Name: Xxxxxxxx X'Xxxxxx
Title: Senior Vice President
Page 15 of 15
