Exhibit 4.18
U.S. PLEDGE AGREEMENT
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U.S. PLEDGE AGREEMENT, dated as of November____ , 2003 (as amended,
restated, modified and/or supplemented from time to time, this "Agreement"),
made by each of the undersigned (each, a "Pledgor" and, together with any other
entity which becomes a party hereto pursuant to Section 30, collectively, the
"Pledgors"), in favor of CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch, as Collateral Agent (together with any successor Collateral
Agent, the "Pledgee"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, all capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
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WHEREAS, Quality Distribution, Inc. ("Holdings"), Quality
Distribution, LLC (the "Borrower"), the lenders from time to time party thereto
(the "Lenders"), JPMorgan Chase Bank, as Documentation Agent (in such capacity,
together with any successor documentation agent, the "Documentation Agent"),
Deutsche Bank Securities Inc. and Bear Xxxxxx Corporate Lending Inc., as
Co-Syndication Agents (in such capacity, together with any successor syndication
agents, the "Co-Syndication Agents"), and Credit Suisse First Boston, acting
through its Cayman Islands Branch, as Administrative Agent (in such capacity,
together with any successor administrative agent, the "Administrative Agent"),
have entered into a Credit Agreement, dated as of November __, 2003 (as amended,
restated, modified and/or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to, and the issuance of, and
participation in, Letters of Credit for the account of the Borrower, all as
contemplated therein (the Lenders, each Letter of Credit Issuer, the
Documentation Agent, the Co-Syndication Agents, the Administrative Agent, the
Collateral Agent 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 guaranteed to
the Secured Creditors the payment when due of all Guaranteed Obligations as
described therein;
WHEREAS, pursuant to the Subsidiaries Guaranty, dated as of November
__, 2003 (as amended, restated, modified and/or supplemented from time to time,
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 precedent to the making of Loans to the
Borrower and the issuance of, and participation in, Letters of Credit for the
account of the Borrower under
the Credit Agreement and to the Other Creditors entering into Interest Rate
Protection Agreements and Other Hedging Agreements, that each Pledgor shall have
executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of
Loans by the Borrower and the issuance of, and participation in, Letters of
Credit for the account of the Borrower under the Credit Agreement and the
entering into by the Borrower of Interest Rate Protection Agreements or Other
Hedging Agreements and, accordingly, desires to execute this Agreement in order
to satisfy the condition described in the preceding paragraph and to induce the
Lenders to make Loans to the Borrower and issue, and/or participate in, Letters
of Credit for the account of the Borrower and the Other Creditors to enter into
Interest Rate Protection Agreements or Other Hedging Agreements with the
Borrower;
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 stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor
or any Subsidiary thereof at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed
in any such proceeding), reimbursement obligations under Letters of Credit,
fees, costs and indemnities) of such Pledgor owing 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, in the case of each Pledgor that
is a Guarantor, all such obligations, liabilities and indebtedness of such
Pledgor under its Guaranty) 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,
liabilities and indebtedness under this clause (i), except to the extent
consisting of obligations, liabilities or indebtedness with respect to
Interest Rate Protection Agreements or Other Hedging Agreements, entitled
to the benefits of this Agreement being herein collectively called the
"Credit Document Obligations");
(ii) the full and prompt payment when due (whether at stated
maturity,by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, indemnities, fees and all
interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of any Pledgor at the rate provided for in the
respective documentation, whether or not a claim for post-petition interest
is allowed in
any such proceeding) owing by such Pledgor to the Other Creditors now
existing or hereafter incurred under, arising out of or in connection with
any Interest Rate Protection Agreement or Other Hedging Agreement, whether
such Interest Rate Protection Agreement or Other Hedging Agreement is now
in existence or hereinafter arising (including, in the case of a Pledgor
that is a Guarantor, all obligations, liabilities and indebtedness of such
Pledgor under its Guaranty in respect of the Interest Rate Protection
Agreements and Other Hedging Agreements), and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements
contained in each such Interest Rate Protection Agreement and Other Hedging
Agreement (all such obligations, liabilities and indebtedness under 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) and (ii) above, after an Event of Default shall have
occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing
on the Collateral, or of any exercise by the Pledgee of its rights
hereunder, together with reasonable attorneys' fees and court costs;
(v) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 11 of this Agreement; and
(vi) all amounts owing to any Agent or any of its affiliates pursuant
to any of the Credit Documents in its capacity as such;
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 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; REPRESENTATIONS. (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" shall have the meaning set forth in the
recitals hereto.
"Adverse Claim" shall have the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Borrower" shall have the meaning set forth in the recitals hereto.
"Certificated Security" shall have the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Class" shall have the meaning provided in Section 22 hereof.
"Clearing Corporation" shall have the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" shall have the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" shall mean any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Co-Syndication Agents" shall have the meaning set forth in the
recitals hereto.
"Credit Agreement" shall have the meaning set forth in the recitals
hereto.
"Credit Document Obligations" shall have the meaning set forth in
Section 1(i) hereof.
"Credit Document Obligations Termination Date" shall mean that date
upon which all Credit Document Obligations (other than those arising from
indemnities for which no request has been made) have been paid in full and all
Commitments and Letters of Credit under the Credit Agreement have been
terminated.
"Documentation Agent" shall have the meaning set forth in the recitals
hereto.
"Domestic Corporation" shall have the meaning set forth in the
definition of "Stock."
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
"Exempted Foreign Entity" shall mean any Foreign Corporation and any
limited liability company organized under the laws of a jurisdiction other than
the United States or any State or Territory thereof that, in any such case, is
treated as a corporation or an association taxable as a corporation for U.S.
Federal income tax purposes.
"Financial Asset" shall have the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" shall have the meaning set forth in the
definition of "Stock".
"Holdings" shall have the meaning set forth in the recitals hereto.
"Indemnitees" shall have the meaning set forth in Section 11 hereof.
"Instrument" shall have the meaning given such term in Section
9-102(a)(47) of the UCC.
"Investment Property" shall have the meaning given such term in
Section 9-102(a)(49) of the UCC.
"Lender Creditors" shall have the meaning set forth in the recitals
hereto.
"Lenders" shall have the meaning set forth in the recitals hereto.
"Limited Liability Company Assets" shall mean all assets, whether
tangible 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 by any Pledgor or represented by any
Limited Liability Company Interest.
"Limited Liability Company Interests" shall mean the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company (excluding any obligation of any Pledgor to make any
unpaid or uncalled capital commitments or contributions (or other payments of a
similar nature) in respect of any such limited liability company).
"Location" of any Pledgor has the meaning given such term in Section
9-307 of the UCC.
"Non-Voting Equity Interests" shall mean all Equity Interests of any
Person which are not Voting Equity Interests.
"Notes" shall mean (x) all Intercompany Notes at any time issued to
each Pledgor and (y) all other promissory notes from time to time issued to, or
held by, each Pledgor.
"Obligations" shall have the meaning set forth in Section 1 hereof.
"Other Creditors" shall have the meaning set forth in the recitals
hereto.
"Other Obligations" shall have the meaning set forth in Section 1
hereof.
"Partnership Assets" shall mean all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
by any Pledgor or represented by any Partnership Interest.
"Partnership Interest" shall mean the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership (excluding any obligation of any
Pledgor to make any unpaid or uncalled capital commitments or contributions (or
other payments of a similar nature) in respect of any such general partnership
or limited partnership).
"Pledged Notes" shall mean all Notes at any time pledged or required
to be pledged hereunder.
"Pledgee" shall have the meaning set forth in the first paragraph
hereof.
"Pledgor" shall have the meaning set forth in the first paragraph
hereof.
"Proceeds" shall have the meaning given such term in Section
9-102(a)(64) of the UCC.
"Registered Organization" shall have the meaning given such term in
Section 9-102(a)(70) of the UCC.
"Required Secured Creditors" shall mean (i) at all times prior to the
occurrence of the Credit Document Obligations Termination Date, the Required
Lenders (or, to the extent required by Section 13.12 of the Credit Agreement,
each of the Lenders) and (ii) at all times on and after the Credit Document
Obligations Termination Date, the holders of at least the majority of the then
outstanding Other Obligations (determined by the Pledgee in such reasonable
manner as is acceptable to it).
"Requisite Creditors" shall have the meaning set forth in Section 22
hereof.
"Secured Creditors" shall have the meaning set forth in the recitals
hereto.
"Secured Debt Agreements" shall mean and includes (x) this Agreement,
(y) the other Credit Documents and (z) the Interest Rate Protection Agreements
and Other Hedging Agreements entered into with any Other Creditors.
"Securities Account" shall have the meaning given such term in Section
8-501(a) of the UCC.
"Securities Act" shall mean the Securities Act of 1933, as amended, as
in effect from time to time.
"Securities Intermediary" shall have the meaning given such term in
Section 8-102(14) of the UCC.
"Security" and "Securities" shall have the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock
and all Notes (to the extent same constitute "Securities" under Section
8-102(a)(15).
"Security Entitlement" shall have the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Specified Default" shall have the meaning set forth in Section 5
hereof.
"Stock" shall mean (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof or the District
of Columbia (each, a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
Domestic Corporation at any time owned by any Pledgor and (y) with respect to
corporations not Domestic Corporations (each, a "Foreign Corporation"), all of
the issued and outstanding shares of capital stock of any Foreign Corporation at
any time owned by any Pledgor.
"Termination Date" shall have the meaning set forth in Section 20
hereof.
"Transmitting Utility" has the meaning given such term in Section
9-102(a)(80) of the UCC.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time; provided that all references herein to specific
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" shall have the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Equity Interests" of any Person shall mean all classes of
Equity Interests of such Person entitled to vote.
(c) 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 B hereto; (ii) the Stock (and any warrants or options to purchase Stock)
held by such Pledgor consists of the number and type of shares of the stock (or
warrants or options to purchase any stock) of the corporations as described in
Annex C hereto; (iii) such Stock referenced in clause (ii) of this paragraph
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex C hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex D 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 E hereto; (vi) each such Limited Liability
Company Interest referenced in clause (v) of this paragraph constitutes that
percentage of the issued and outstanding equity interest of the issuing Person
as set forth in Annex E hereto; (vii) the Partnership Interests held by such
Pledgor consist of the number and type of interests of the Persons described in
Annex F hereto; (viii) each such Partnership Interest referenced in clause (vii)
of this paragraph constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex F hereto; (ix) the
exact address of each chief executive office of such Pledgor is listed on Annex
G hereto; (x) the Pledgor has complied with the respective procedure set forth
in Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes C through F hereto; and (xi) on the date hereof, such Pledgor owns no
other Securities, Stock, Notes, Limited Liability Company Interests or
Partnership Interests.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be
performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing security interest (subject to those Liens permitted to exist with
respect to the Collateral pursuant to the terms of all Secured Debt
Agreements then in effect) in favor of the Pledgee for the benefit of the
Secured Creditors in, all of its right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(i) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security Agreement),
including any and all assets of whatever type or kind deposited by such
Pledgor in any such Collateral Account, whether now owned or hereafter
acquired, existing or arising, including, without limitation, all Financial
Assets, Investment Property, monies, 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;
(ii) all Securities owned or held by such Pledgor from time to time
and all options and warrants owned by such Pledgor from time to time to
purchase Securities;
(iii) (x) 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 Limited Liability Company
Interests relates and (y) 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 Partnership Interest relates, as the case
may be, whether now existing or hereafter acquired, including, without
limitation to the fullest extent permitted under the terms and provisions
of the documents and agreements governing such Limited Liability Company
Interests and/or Partnership Interests and applicable law:
(A) all its capital therein and its interest in all profits,
income, surpluses, losses, Limited Liability Company Assets (as
defined below), Partnership Assets (as defined below), and other
distributions and payments to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company Interests and/or
Partnership Interests;
(B) all other payments due or to become due to such Pledgor in
respect of such Limited Liability Company Interests and/or Partnership
Interests, whether under any limited liability company agreement,
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
limited liability company agreement, operating agreement or
partnership agreement, or at law or otherwise in respect of such
Limited Liability Company Interests and/or Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any limited liability company and/or partnership for monies
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement, operating agreement or partnership 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 and/or Partnership Interests, including
any power to terminate, cancel or modify any such limited liability
company agreement, operating agreement or 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 Limited
Liability Company Interest or Partnership Interest and any such
limited liability company and/or 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, receive, enforce, collect or receipt for any of the
foregoing or for any Limited Liability Company Asset and/or
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;
(iv) all Financial Assets and Investment Property owned by such
Pledgor from time to time;
(v) all Security Entitlements owned by such Pledgor from time to
time in any and all of the foregoing; and
(vi) all Proceeds of any and all of the foregoing;
provided that (x) except in the circumstances and to the extent provided by
Section 8.12 of the Credit Agreement (in which case this clause (x) shall no
longer be applicable), no Pledgor shall be required at any time to pledge
hereunder more than 65% of the total combined voting power of all classes of
Voting Equity Interests of any Exempted Foreign Entity, (y) each Pledgor shall
be required to pledge hereunder 100% of the Non-Voting Equity Interests of each
Exempted Foreign Entity at any time and from time to time acquired by such
Pledgor, which Non-Voting Equity Interests shall not be subject to the
limitations described in preceding clause (x) and (z) except as otherwise
required by Section 8.18 of the Credit Agreement, no Pledgor shall be required
to pledge hereunder any Margin Stock owned by such Pledgor.
3.2 Procedures. (a) To the extent that any Pledgor at any time or 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 such 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 other Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation or
Securities Intermediary), such Pledgor shall physically deliver such
Certificated Security to the Pledgee, endorsed to the Pledgee or endorsed
in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation or
Securities Intermediary), such Pledgor shall cause the issuer of such
Uncertificated Security to duly authorize, execute, and deliver to the
Pledgee, an agreement for the benefit of the Pledgee and the other Secured
Creditors substantially in the form of Annex H hereto (appropriately
completed to the satisfaction of the Pledgee and with such modifications,
if any, as shall be reasonably satisfactory to the Pledgee) pursuant to
which, subject to Section 5 hereof, 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 or Securities Intermediary
(including a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), such Pledgor shall promptly notify the Pledgee
thereof and shall promptly take (x) all actions required (i) to comply with
the applicable rules of such Clearing Corporation or Securities
Intermediary and (ii) to perfect the security interest of the Pledgee under
applicable law (including, in any event, under Sections 9-314(a), (b) and
(c), 9-106 and 8-106(d) of the UCC) and (y) such other 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
Company Interest credited on the books of a Clearing Corporation or
Securities Intermediary), (1) if such Partnership Interest or Limited
Liability Company Interest is represented by a certificate and is a
Security for purposes of the UCC, 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 or is not a Security
for purposes of the UCC, 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, endorsed in blank, or, at the request of the Pledgee, endorsed to
the Pledgee; and
(vi) after an Event of Default has occurred and is continuing, with
respect to cash proceeds from any of the Collateral described in Section
3.1 hereof, (i) establishment by the Pledgee of a cash account in the name
of such Pledgor over which the Pledgee shall have "control" within the
meaning of the UCC (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.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, each Pledgor shall take the following additional actions
with respect to the 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), such 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 appropriate forms) under the Uniform Commercial Code as in
effect in the various relevant States, 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's security interest in all Investment Property and other
Collateral which can be 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 9-312(a) of the UCC) is so perfected.
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire (by
purchase, stock dividend, distribution or otherwise) any additional Collateral
at any time or from time to time after the date hereof, (i) 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, such Pledgor will thereafter promptly take (or cause to
be taken) all action (as promptly as practicable and, in any event, within 15
days after it obtains such Collateral) 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 an
authorized 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 G
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 the Equity Interests of any Exempted Foreign Entity at any time
and from time to time after the date hereof acquired by such Pledgor, provided
that (I)(x) except in the circumstances and to the extent provided by Section
8.12 of the Credit Agreement, no Pledgor shall be required at any time to pledge
hereunder more than 65% of the total combined voting power of all classes of
Voting Equity Interests of any Exempted Foreign Entity and (y) each Pledgor
shall be required to pledge hereunder 100% of the Non-Voting Equity Interests of
each Exempted Foreign Entity at any time and from time to time acquired by such
Pledgor and (II) except as otherwise required by Section 8.18 of the Credit
Agreement, no Pledgor shall be required to pledge hereunder any Margin Stock
acquired by such Pledgor after the date hereof.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
have the right 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.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT.
Unless and until there shall have occurred and be continuing any Event of
Default under the Credit Agreement or a Default under Section 10.01 or 10.05 of
the Credit Agreement (each such Default, a "Specified 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 consent, waiver or ratification given or any action taken or omitted
to be taken which would violate, result in a breach of any covenant contained
in, or be inconsistent with any of the terms of any Secured Debt Agreement, or
which could reasonably be expected to 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, unless expressly permitted by
the terms of the Secured Debt Agreements. 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.
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, provided, that all cash
dividends payable in respect of the Pledged Stock which are determined by the
Pledgee to represent in whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be paid, to the extent so determined to
represent an extraordinary, liquidating or other distribution in return of
capital, to the Pledgee and retained by it as part of the Collateral. The
Pledgee shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash dividends other
than as set forth above) paid or distributed by way of dividend or
otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash (although such
cash may be paid directly to the respective Pledgor so
long as no Event of Default then exists)) 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, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) 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
or other reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive the 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 or 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 AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT. (a)
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, by 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);
(iv) to vote (and exercise all rights and powers in respect of
voting) 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 purchase or dispose (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 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.
(b) If there shall have occurred and be continuing a Specified
Default, then and in every such case, the Pledgee shall be entitled to vote (and
exercise all rights and powers in respect of voting) 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).
8. REMEDIES, CUMULATIVE, ETC. 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. Unless otherwise
required by the Credit Documents, 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 Pledgee, in each case,
acting upon the instructions of the Required Secured Creditors, 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 Pledgee 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 Section 8.4(b) of the
Security Agreement for "Excluded Collateral".
(b) It is understood and agreed that each Pledgor shall remain
jointly and severally liable with respect to its Obligations to the extent of
any deficiency between the amount of the proceeds of the Collateral pledged by
it hereunder and the aggregate amount of such 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 such 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, reimburse and hold harmless the Pledgee and each other Secured
Creditor and their respective successors, assigns, employees, agents and
affiliates (individually an "Indemnitee", and collectively, the "Indemnitees")
from and against any and all obligations, damages, injuries, penalties, claims,
demands, losses, judgments and liabilities (including, without limitation,
liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse
each Indemnitee for all reasonable costs, expenses and disbursements, including
reasonable attorneys' fees and expenses, in each case arising 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 obligations, damages, injuries, penalties, claims, demands,
losses, judgments and liabilities (including, without limitation, liabilities
for penalties) or expenses of whatsoever kind or nature to the extent incurred
or arising by reason of gross negligence or willful misconduct of such
Indemnitee (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). In no event shall the Pledgee hereunder be liable, in
the absence of gross negligence or willful misconduct on its part (as determined
by a court of competent jurisdiction in a final and non-appealable decision),
for any matter or thing in connection with this Agreement other than to account
for monies or other property 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. The indemnity obligations
of each Pledgor contained in this Section 11 shall continue in full force and
effect notwithstanding the full payment of all the Notes issued under the Credit
Agreement, the termination of all Interest Rate Protection Agreements and Other
Hedging Agreements and Letters of Credit, and the payment of all other
Obligations and notwithstanding the discharge thereof.
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 (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 as a partner in any 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 a Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor, any
Pledgor and/or any other Person.
(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, any limited
liability company, partnership and/or any other Person 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 UCC or other applicable law such financing
statements, continuation statements and other documents, in form reasonably
acceptable to the Pledgee, in such offices as the Pledgee (acting on its own or
on the instructions of the Required Secured Creditors) may reasonably deem
necessary or appropriate and wherever required or permitted by law in order to
perfect and preserve the Pledgee's security interest in the Collateral hereunder
and hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral (including, without
limitation, (x) financing statements which list the Collateral specifically
and/or "all assets" as collateral and (y) "in lieu of" financing statements)
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 advisable to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder or thereunder.
(b) Each Pledgor hereby constitutes and appoints the Pledgee its true
and lawful attorney-in-fact, irrevocably, with full authority in the place and
stead of such Pledgor and in the name of such Pledgor or otherwise, from time to
time after the occurrence and during the continuance of an Event of Default, in
the Pledgee's discretion, to act, require, demand, receive and give acquittance
for any and all monies and claims for monies due or to become due to such
Pledgor under or arising out of the Collateral, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings and to execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an interest.
14. THE PLEDGEE AS COLLATERAL 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, acknowledged 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 and in Section 12 of the Credit 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. Except as permitted (i) prior to the
Credit Document Obligations Termination Date, pursuant to the Credit Agreement,
and (ii) thereafter, pursuant to the other Secured Debt Agreements, 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 in accordance with the terms of this Agreement and the other
Secured Debt Agreements).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants as to itself and each of its
Subsidiaries that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all of its Collateral consisting of one or more
Securities, Partnership Interests and Limited Liability Company Interests
and that it has sufficient interest in all of its 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 or permitted under the Secured Debt Agreements);
(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 enforce-
ability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general 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, partner,
member 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 by such Pledgor, (b) the validity or enforceability of this
Agreement against such Pledgor (except as set forth in clause (iii) above),
(c) the perfection or enforceability of the Pledgee's security interest in
such Pledgor's 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) neither the execution, delivery or performance by such Pledgor
of this Agreement, or any other Secured Debt Agreement to which it is a
party, nor compliance by it with the terms and provisions hereof and
thereof nor the consummation of the transactions contemplated therein: (i)
will contravene any provision of any applicable law, statute, rule or
regulation, or any applicable order, writ, injunction or decree of any
court, arbitrator or governmental instrumentality, domestic or foreign,
applicable to such Pledgor; (ii) will conflict or be inconsistent with or
result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the properties or assets of
such Pledgor or any of its Subsidiaries pursuant to the terms of any
indenture, lease, mortgage, deed of trust, credit agreement, loan agreement
or any other material agreement, contract or other instrument to which such
Pledgor or any of its Subsidiaries is a party or is otherwise bound, or by
which it or any of its properties or assets is bound or to which it may be
subject; or (iii) will violate any provision of the certificate of
incorporation, by-laws, certificate of partnership, partnership agreement,
certificate of formation or limited liability company agreement (or
equivalent organizational documents), as the case may be, of such Pledgor
or any of its Subsidiaries;
(vi) all of such Pledgor's Collateral (consisting of Securities,
Limited Liability Company Interests and Partnership Interests) has been
duly and validly issued, is fully paid and non-assessable and is subject to
no options to purchase or similar rights;
(vii) each of such Pledgor's 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 affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(viii) the pledge, collateral assignment and delivery to the Pledgee
of such Pledgor's Collateral consisting of Certificated Securities and
Pledged Notes pursuant to this Agreement creates a valid and perfected
first priority security interest in such Certificated Securities and
Pledged Notes, 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 (other than the liens and security interests
permitted under the Secured Debt Agreements then in effect) 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 of such Pledgor's Collateral consisting of
Securities (including, without limitation, Notes which are Securities) with
respect to which such "control" may be obtained pursuant to Section 8-106
of the UCC, except to the extent that the obligation of the applicable
Pledgor to provide the Pledgee with "control" of such Collateral has not
yet arisen under this Agreement; provided that in the case of the Pledgee
obtaining "control" over Collateral consisting of a Security Entitlement,
such Pledgor shall have taken all steps in its control so that the Pledgee
obtains "control" over such Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to such Pledgor's Collateral
and the proceeds thereof against the claims and demands of all persons
whomsoever; and each Pledgor covenants and agrees that it will have like title
to and right to pledge any other property at any time hereafter pledged to the
Pledgee by such Pledgor as Collateral hereunder and will likewise defend the
right thereto and security interest therein of the Pledgee and the other Secured
Creditors.
(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. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION;
LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact
legal name of each Pledgor, the type of organization of such Pledgor, whether or
not such Pledgor is a Registered Organization, the jurisdiction of organization
of such Pledgor, such Pledgor's Location, the organizational identification
number (if any) of each Pledgor, and whether or not such Pledgor is a
Transmitting Utility, is listed on Annex A hereto for such Pledgor. No Pledgor
shall change its legal name, its type of organization, its status as a
Registered Organization (in the case of a Registered Organization), its status
as a Transmitting Utility or as a Person which is not a Transmitting Utility, as
the case may be, its jurisdiction of organization, its Location, or its
organizational identification number (if any), except that any such changes
shall be permitted (so long as not in violation of the applicable requirements
of the Secured Debt Agreements and so long as same do not involve (x) a
Registered Organization ceasing to constitute same or (y) any Pledgor changing
its jurisdiction of organization or Location from the United States or a State
thereof to a jurisdiction of organization or Location, as the case may be,
outside the United States or a State thereof) if (i) it
shall have given to the Agent not less than 15 days' prior written notice of
each change to the information listed on Annex A (as adjusted for any subsequent
changes thereto previously made in accordance with this sentence), together with
a supplement to Annex A which shall correct all information contained therein
for such Pledgor, and (ii) in connection with the respective such change or
changes, it shall have taken all action reasonably requested by the Collateral
Agent to maintain the security interests of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect. In addition, to the extent that any Pledgor does not have
an organizational identification number on the date hereof and later obtains
one, such Pledgor shall promptly thereafter deliver a notification of the
Collateral Agent of such organizational identification number and shall take all
actions reasonably satisfactory to the Collateral Agent to the extent necessary
to maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby fully perfected and in full force and effect.
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 (other than termination of this Agreement pursuant to
Section 20 hereof), including, without limitation:
(i) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from any Secured Debt Agreement
(other than this Agreement in accordance with its terms), or any other
instrument or agreement referred to therein, or any assignment or transfer
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 (other than a waiver, consent or
extension with respect to this Agreement in accordance with its terms);
(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. SALE OF COLLATERAL WITHOUT REGISTRATION. (a) If an Event of
Default shall have occurred and be continuing and any Pledgor shall have
received from the Pledgee 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 effected (and be kept effective) as may be so
requested and as would permit or facilitate the sale and distribution of such
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, including, without limitation, registration under the
Securities Act, as then in effect (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with any other governmental requirements;
provided, that the Pledgee shall furnish to such Pledgor such information
regarding the Pledgee as such Pledgor may request in writing and as shall be
required in connection with any such registration, qualification or compliance.
Each Pledgor will cause the Pledgee to be kept reasonably 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 and other documents incident thereto as the Pledgee from time
to time may reasonably request, and will indemnify, to the extent permitted by
law, the Pledgee and all other Secured Creditors participating in the
distribution of such Collateral consisting of Securities, Limited Liability
Company Interests or Partnership Interests 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 such 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 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, may in good xxxxx xxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might be realized if the sale were deferred until the registration as aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date (as defined
below), this Agreement 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 such Pledgor, will execute and
deliver to such Pledgor a proper instrument or instruments (including UCC
termination statements) acknowledging the satisfaction and termination of this
Agreement (including, without limitation, UCC termination statements and
instruments of satisfaction, discharge and/or reconveyance), and will duly
release from the security interest created hereby and assign, transfer and
deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Pledgee and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement, together with any moneys at the time held by the Pledgee or any
of its sub-agents hereunder and, with respect to any Collateral consisting of an
Uncertificated Security, a Partnership Interest or a Limited Liability Company
Interest (other than an Uncertificated Security, Partnership Interest or Limited
Liability Company Interest credited on the books of a Clearing Corporation or
Securities Intermediary), a termination of the agreement relating thereto
executed and delivered by the issuer of such Uncertificated Security pursuant to
Section 3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section 3.2(a)(iv)(2). As used in this Agreement, "Termination Date"
shall mean the date upon which the Commitments under the Credit Agreement have
been terminated and all Interest Rate Protection Agreements and Other Hedging
Agreements entitled to the benefits of this Agreement have been terminated, no
Letter of Credit or Note (as defined in the Credit Agreement) is outstanding
(and all Loans have been paid in full), all Letters of Credit have been
terminated, and all other Obligations (other than indemnities described in
Section 11 hereof and described in Section 13.01 of the Credit Agreement, and
any other indemnities set forth in any other Security Documents, in each case
which are not then due and payable) then due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold or otherwise
disposed of (to a Person other than a Credit Party) (x) at any time prior to the
Credit Document Obligations Termination Date, in connection with a sale or
disposition permitted by Section 9.02 of the Credit Agreement or is otherwise
released at the direction of the Required Secured Creditors or (y) at any time
thereafter, to the extent permitted by the other Secured Debt Agreements then in
effect, and in the case of clauses (x) and (y), the proceeds of such sale or
disposition (or from such release) are applied in accordance with the terms of
the Credit Agreement or such other Secured Debt Agreement, as the case may be,
to the extent required to be so applied, the Pledgee, at the request and expense
of such Pledgor, will duly release from the security interest created hereby
(and will execute and deliver such documentation, including termination or
partial release statements and the like in connection therewith) and assign,
transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and as may be in the possession of the Pledgee (or, in
the case of Collateral held by any sub-agent designated pursuant to Section 4
hereto, such sub-agent) and has not theretofore been released pursuant to this
Agreement.
(c) At any time that any Pledgor desires that Collateral be released
as provided in the foregoing Section 20(a) or (b), it shall deliver to the
Pledgee (and the relevant sub-agent, if any, designated pursuant to Section 4
hereof) a certificate signed by an Authorized Officer of such Pledgor stating
that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b) hereof. If reasonably requested by the Pledgee (although the
Pledgee shall have no obligation to make any such request), the relevant Pledgor
shall furnish appropriate
legal opinions (from counsel, reasonably acceptable to the Pledgee) to the
effect set forth in the immediately preceding sentence.
(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 (or which the Collateral Agent in the absence of gross negligence and
willful misconduct believes to be in accordance with) this Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, cable company
or overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Pledgee or any Pledgor shall not be
effective until received by the Pledgee or such Pledgor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, c/o:
[________________________]
[________________________]
(b) if to the Pledgee, at:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: [Agency Group]
Telephone No.: [_____________]
Facsimile No.: [_____________]
(c) if to any Lender Creditor (other than the Pledgee), 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
Creditor shall 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 or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
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
Collateral Agent (with the consent of the Required Secured Creditors); provided,
that (i) additional Pledgors may be added as parties hereto from time to time in
accordance with Section 30 without the consent of any
other Pledgor or of the Secured Creditors, (ii) Pledgors may be removed as
parties hereto from time to time in accordance with Section 32 without any
consent of any other Pledgor or of the Secured Creditors and (iii) any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below), with outstanding Obligations of the respective Class
secured hereby at such time, of Secured Creditors (and not all Secured Creditors
in a like or similar manner) shall require the written consent of the Requisite
Creditors (as defined below) of such Class; provided further, however, that
notwithstanding anything to the contrary provided in clause (iii) of the
immediately preceding proviso, (x) the Required Secured Creditors may agree to
modifications to this Agreement for the purpose, among other things, of securing
additional extensions of credit (including, without limitation, pursuant to the
Credit Agreement or any refinancing or extension thereof) and adding new
creditors as "Secured Creditors" hereunder (either as part of an existing Class
of Secured Creditors or as a newly created Class) and such changes shall not
require the written consent of the Requisite Creditors of the various Classes,
so long as such extension (and resulting addition) do not give otherwise give
rise to an express violation of the terms of the Credit Agreement or the other
Secured Debt Agreements and (y) said clause (iii) shall not apply to any release
of Collateral or any Pledgor (or the termination of this Agreement) effected in
accordance with the requirements of Section 20 or 32 of this Agreement, as the
case may be. For the purpose of this Agreement, the term "Class" shall mean each
class of Secured Creditors with outstanding Obligations secured hereby at such
time, i.e., whether (x) the Lender Creditors as holders of the Credit Document
Obligations or (y) the Other Creditors as holders of the Other Obligations. For
the purpose of this Agreement, the term "Requisite Creditors" of any Class shall
mean each of (x) with respect to the Credit Document Obligations, the Required
Lenders and (y) with respect to the Other Obligations, the holders of at least a
majority of all Other Obligations outstanding from time to time under the
Interest Rate Protection Agreements and Other Hedging Agreements (as determined
by the Pledgee in such reasonable manner as is acceptable to it).
23. SUCCESSORS AND ASSIGNS. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect, subject to release and/or termination as set forth in Section 20, (ii)
be binding upon each Pledgor, its successors and assigns; provided, however,
that no Pledgor shall assign any of its rights or obligations hereunder without
the prior written consent of the Pledgee (with the prior written consent of the
Required Secured Creditors), and (iii) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Creditors and their respective successors, transferees and assigns. All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several Sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PLEDGOR HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS
PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES
AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT, OR
ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY
OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Pledgor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in Pledgor's possession, nor shall
the Pledgee be required or obligated in any manner to perform or fulfill any of
the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Pledgor and the
Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
29. RECOURSE. This Agreement is made with full recourse to each
Pledgor and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of such Pledgor contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the Credit Agreement or
any other Credit Document, shall become a Pledgor hereunder by (x) executing a
counterpart hereof and/or a joinder agreement in form and substance satisfactory
to the Pledgee and delivering same to the Pledgee, (y) delivering supplements to
Annexes A through G, hereto as are necessary to cause such Annexes to be
complete and accurate with respect to such additional Pledgor on such date and
(z) taking all actions as specified in this Agreement as would have been taken
by such Pledgor had it been an original party to this Agreement, in each case
with all documents required above to be delivered to the Pledgee and with all
documents and actions required above to be taken to the reasonable satisfaction
of the Pledgee.
31. LIMITED OBLIGATIONS. It is the desire and intent of each Pledgor
and the Secured Creditors that this Agreement shall be enforced against each
Pledgor to the fullest extent permissible under the laws applied in each
jurisdiction in which enforcement is sought. Notwithstanding anything to the
contrary contained herein, in furtherance of the foregoing, it is noted that the
obligations of each Pledgor constituting a Subsidiary Guarantor have been
limited as provided in the Subsidiaries Guaranty.
32. RELEASE OF PLEDGORS. If at any time all of the Equity Interests of
any Pledgor owned by the Borrower or any of its Subsidiaries are sold (to a
Person other than a Credit Party) in a transaction permitted pursuant to the
Credit Agreement (and which does not
violate the terms of any other Secured Debt Agreement then in effect), then,
such Pledgor shall be released as a Pledgor pursuant to this Agreement without
any further action hereunder (it being understood that the sale of all of the
Equity Interests in any Person that owns, directly or indirectly, all of the
Equity Interests in any Pledgor shall be deemed to be a sale of all of the
Equity Interests in such Pledgor for purposes of this Section), and the Pledgee
is authorized and directed to execute and deliver such instruments of release as
are reasonably satisfactory to it. At any time that the Borrower desires that a
Pledgor be released from this Agreement as provided in this Section 32, the
Borrower shall deliver to the Pledgee a certificate signed by a principal
executive officer of the Borrower stating that the release of such Pledgor is
permitted pursuant to this Section 32. If requested by Pledgee (although the
Pledgee shall have no obligation to make any such request), the Borrower shall
furnish legal opinions (from counsel acceptable to the Pledgee) to the effect
set forth in the immediately preceding sentence. The Pledgee shall have no
liability whatsoever to any other Secured Creditor as a result of the release of
any Pledgor by it in accordance with, or which it believes to be in accordance
with, this Section 32.
****
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:
[__________] QUALITY DISTRIBUTION, INC.,
[__________] as a Pledgor
Tel: [__________]
Fax: [__________]
By:
-------------------------------------
Name:
Title:
[__________] QUALITY DISTRIBUTION, LLC,
[__________] as a Pledgor
Tel: [__________]
Fax: [__________]
By:
-------------------------------------
Name:
Title:
[__________] [INSERT NAME OF EACH OTHER CREDIT PARTY],
[__________] as a Pledgor
Tel: [__________]
Fax: [__________]
By:
-------------------------------------
Name:
Title:
Accepted and Agreed to:
[_________________], [__________]
as Collateral Agent and Pledgee [__________]
Tel: [__________]
Fax: [__________]
By:
-----------------------------
Name:
Title:
