EXHIBIT 10.2
PLEDGE AGREEMENT
----------------
THIS PLEDGE AGREEMENT (this "Agreement") made as of this 15th day of
October, 1999 is between XXXXX & XXXXX MANAGEMENT SERVICES, INC., a Delaware
corporation having its principal place of business and chief executive office at
0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 ("Pledgor"), and BANK
OF AMERICA, N.A., a national banking association having an office at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Pledgee"), as Administrative Agent on
behalf of itself and all Lenders (as hereinafter defined).
RECITALS:
WHEREAS, Xxxxx & Xxxxx Company, a Delaware corporation ("Borrower"),
has entered into a Credit Agreement of even date herewith (as the same may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") with Pledgee for the benefit of all lenders
thereunder ("Lenders"), and the Lenders from time to time as parties thereto;
and
WHEREAS, Borrower owns 100% of the issued and outstanding capital
stock of Pledgor; and
WHEREAS, Pledgor is the legal and beneficial owner of the issued and
outstanding capital stock described on Exhibit A hereto; and
WHEREAS, Borrower has received, and may hereafter receive, loans and
other financial accommodations from Lenders under the Credit Agreement, as a
result of which it has incurred, and expects simultaneously with the delivery of
this Agreement to, and will hereafter, incur, "Borrower Obligations" (as that
term is defined in the Credit Agreement) to Lenders; and
WHEREAS, as a Wholly Owned Subsidiary of Borrower, Pledgor will derive
substantial benefit from the loans and other financial accommodations to
Borrower; and
WHEREAS, Pledgor wishes to grant further security and assurance to
Pledgee, for itself and the benefit of all Lenders, in order to secure the
performance of the Borrower Obligations to Pledgee and the Lenders under the
Credit Agreement and to that effect to pledge to Pledgee, for itself and the
benefit of all Lenders, all of the present and future capital stock of the
Subsidiaries owned by Pledgor;
NOW, THEREFORE, in consideration of the foregoing recitals (which are
incorporated herein by this reference thereto as though fully set forth below)
and in order to induce Pledgee and Lenders to extend credit and make other
financial accommodations under the Credit Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees with Pledgee, on behalf of and for the
ratable benefit of Lenders, as follows:
1. Defined Terms. Unless otherwise defined herein, all capitalized
-------------
terms used herein shall have the meanings given to such terms in the Credit
Agreement. Terms defined in the Illinois Uniform Commercial Code which are not
otherwise defined in this Agreement or in the Credit Agreement are used in this
Agreement as defined in the Illinois Uniform Commercial Code as in effect on the
date hereof.
2. Pledge. Pledgor hereby pledges, assigns, hypothecates, transfers,
------
delivers and grants to Pledgee, for itself and the benefit of all Lenders, a
first lien (other than Inchoate Tax Liens) on and security interest in (a) all
of the capital stock of each Domestic Subsidiary, which is a corporation, except
those Domestic Subsidiaries described in Schedule I hereto and the capital stock
----------
of each Foreign Subsidiary, which is a corporation (in no event to exceed 66% of
the capital stock such Foreign Subsidiary), except those Foreign Subsidiaries
described in Schedule I hereto, in each case now or hereafter owned by Pledgor
----------
(the "Pledged Shares"), (b) all other property hereafter delivered to Pledgor in
substitution for or in addition to the Pledged Shares, (c) any other property of
Pledgor, as described in Section 4 below or otherwise, now or hereafter
delivered by Pledgor to Pledgee, and (d) any and all proceeds thereof (all such
property being hereinafter referred to collectively as the "Collateral"), as
collateral security for (i) the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of all of the
Borrower Obligations, and (iii) the due and punctual payment and performance by
Pledgor of its obligations and liabilities under, arising out of, or in
connection with this Agreement including, without limitation, any taxes and
expenses payable pursuant to Section 18 hereof (all of the foregoing being
hereinafter referred to collectively as the "Liabilities"). Other than with
respect to those Subsidiaries listed on Schedule I hereto, all of the issued and
----------
outstanding capital stock of each Domestic Subsidiary and up to 66% of the
capital stock of each Foreign Subsidiary presently owned by Pledgor is
represented by stock certificates listed on Exhibit A hereto, which stock
certificates, together with undated stock powers duly executed in blank by
Pledgor, are being delivered to Pledgee simultaneously herewith. Pledgee shall
maintain possession and custody of the certificates representing the Pledged
Shares in accordance with Section 5 below and shall return the Pledged Shares in
accordance with said section.
3. Representations and Warranties of Pledgor. Pledgor represents and
-----------------------------------------
warrants to Pledgee, for the benefit of the Lenders, that:
(a) With respect to each Subsidiary the shares of which are
pledged hereunder, Exhibit A sets forth (i) the authorized capital stock of each
such Subsidiary other than those Subsidiaries listed on Schedule I hereto, (ii)
----------
the number of shares of capital stock of each such Subsidiary that are issued
and outstanding as of the date hereof and (iii) the number of shares of capital
stock of each such Subsidiary held in its treasury. Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Pledged Shares,
and the Collateral is free and clear of all Liens except the Liens created by
this Agreement;
(b) Pledgor has full power, authority and legal right to execute
the pledge provided for herein and to pledge the Collateral to Pledgee, for the
ratable benefit of Lenders;
2
(c) this Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding obligation of
Pledgor enforceable in accordance with its terms;
(d) Pledgor holds no options, warrants or other agreements with
respect to the issuance of additional shares of capital stock of any Subsidiary
and, to the best of Pledgor's knowledge, no options, warrants or other
agreements with respect to issuance of additional shares of capital stock of any
Subsidiary exist;
(e) the Pledged Shares have been duly and validly authorized and
issued, are fully paid and non-assessable and represent the issued and
outstanding shares of capital stock of each Restricted Subsidiary as described
in Exhibit A;
(f) no consent, approval or authorization of or designation or
filing with any federal, state or other governmental authority or regulatory
body on the part of Pledgor is required in connection with the execution,
delivery and performance of this Agreement, the granting of Liens in the
Collateral by Pledgor or the exercise by Pledgee, for the benefit of Pledgee and
Lenders, of the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by
Pledgor will not violate any provision of (i) any applicable law or regulation,
(ii) any order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, (iii) the charter or by-laws of
Pledgor or any Subsidiary, (iv) any securities issued by Pledgor or any
Subsidiary, or (v) any mortgage, indenture, lease, contract, or other agreement,
instrument or undertaking to which Pledgor or any; Subsidiary is a party or
which purports to be binding upon Pledgor or such Subsidiary or upon any of
their respective assets, and will not result in the creation or imposition of
any Lien on any of the assets of Pledgor or any Subsidiary except as
contemplated by this Agreement; and
(h) the pledge, assignment and delivery of the Collateral
pursuant to this Agreement creates a valid first Lien on the Collateral in favor
of Pledgee, for the benefit of Pledgee and Lenders, subject to no other Liens
nor to any agreement purporting to grant to any third party any Liens in the
property or assets of Pledgor which would include the Collateral (in each case,
other than Liens permitted by the Credit Agreement.) Pledgor covenants and
agrees that it will defend all of the right, title and interest of Pledgee in
and to the Collateral, for the benefit of Pledgee and the Lenders, against the
claims and demands of all persons whomsoever other than Liens permitted by the
Credit Agreement.
4. Stock Dividends, Distributions, etc. If, while this Agreement
------------------------------------
is in effect, Pledgor shall become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate representing a
stock dividend or a stock distribution in connection with any reclassification,
increase or reduction of capital, or issued in connection with any
reorganization, merger or consolidation), or any options or rights, whether as
an addition to, in substitution for, or in exchange for any of the Pledged
Shares or otherwise, Pledgor agrees to
3
accept the same as Pledgee's agent and to hold the same in trust for Pledgee,
and to deliver the same forthwith to Pledgee in the exact form received, with
the indorsement of Pledgor when necessary and/or appropriate undated stock
powers duly executed in blank, to be held by Pledgee as additional collateral
security for the Liabilities. In case any distribution of capital shall be made
to Pledgor on or in respect of the Pledged Shares or any property shall be
distributed to Pledgor upon or with respect to the Pledged Shares pursuant to
the recapitalization or reclassification of the capital of the issuer thereof or
pursuant to the reorganization, merger or consolidation thereof, the property so
distributed shall be delivered, to the extent permitted pursuant to the Credit
Agreement and provided no Event of Default exists and is continuing, to Pledgor
and will constitute additional collateral security for the Liabilities. Upon the
occurrence and during the continuance of an Event of Default and at the request
of Pledgee at the direction of the Required Lenders, all sums of money and
property so paid or distributed shall be paid to Pledgee and applied in
accordance with the terms and provisions of the Credit Agreement.
5. Administration of Security. The following provisions shall govern
--------------------------
the administration of the Pledged Shares:
(a) So long as no Event of Default has occurred and is
continuing, Pledgor shall be entitled (subject to the other provisions hereof
and the Credit Agreement, including, without limitation, Section 8 below and
Section 8 of the Credit Agreement) (i) to vote or consent with respect to the
Pledged Shares and to otherwise exercise the incidents of ownership thereof in
any manner not inconsistent with this Agreement, the Credit Agreement or any of
the other Loan Documents; and (ii) to receive cash dividends or other
distributions in the ordinary course made in respect of the Pledged Shares.
Pledgor hereby grants to Pledgee or its nominee, for the ratable benefit of
Lenders, an irrevocable proxy to exercise all voting and corporate rights
relating to the Pledged Shares in any instance, including, without limitation,
to approve any merger involving any Subsidiary as a constituent corporation,
which proxy shall be exercisable immediately upon the occurrence of an Event of
Default and for so long as such Event of Default is continuing. After the
occurrence and during the continuance of an Event of Default and upon request of
Pledgee, Pledgor agrees to deliver to Pledgee such further evidence of such
irrevocable proxy or such further irrevocable proxies to vote the Pledged Shares
as Pledgee may request.
(b) Upon the occurrence and during the continuance of an Event of
Default, in the event that Pledgor, as record and beneficial owner of the
Pledged Shares, shall have received or shall have become entitled to receive any
cash dividends or other distributions in the ordinary course, Pledgor shall
deliver to Pledgee, and Pledgee shall be entitled to receive and retain, on
behalf of Pledgee and Lenders, all such cash or other distributions as
additional collateral security for the Liabilities; provided, however, that upon
-------- -------
such Event of Default being cured (provided that no part of the Borrower
Obligations shall have been accelerated pursuant to subsection 8.3 of the Credit
Agreement), Pledgee shall return such portion of any such cash dividends or
other distributions received and retained by Pledgee as have not been applied to
cure such Event of Default to Pledgor.
(c) Subject to any sale or other disposition by Pledgee of the
Pledged Shares or other property pursuant to this Agreement, upon full payment,
satisfaction and
4
termination of all of the Liabilities (other than contingent indemnification
obligations to the extent no unsatisfied claim giving rise thereto has been
asserted) and the termination pursuant to Section 15 hereof of the Liens hereby
granted, the Pledged Shares and any other property then held as part of the
collateral security for the Liabilities in accordance with the provisions of
this Agreement shall be returned to Pledgor.
6. Rights of Pledgee. Neither Pledgee nor Lenders shall be liable
-----------------
for any failure to collect or realize upon the Liabilities or any collateral
security or guaranty therefor, or any part thereof, or for any delay in so
doing, nor shall Pledgee or any Lender be under any obligation to take any
action whatsoever with regard thereto. Any or all of the Collateral held by
Pledgee hereunder may, if an Event of Default has occurred and is continuing,
without notice, be registered in the name of Pledgee or its nominee, for the
benefit of Pledgee and the Lenders, and Pledgee or its nominee may thereafter
without notice exercise all voting and corporate rights at any meeting with
respect to a Subsidiary whose shares are pledged hereunder and exercise any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Shares, for the benefit of Pledgee
and Lenders, as if Pledgee or its nominee were the absolute owner thereof,
including, without limitation, the right to vote in favor of, and to exchange at
its discretion any and all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment with respect to a
Subsidiary whose shares are pledged hereunder or upon the exercise by a
Subsidiary whose shares are pledged hereunder or Pledgee, on behalf of Pledgee
and Lenders, of any right, privilege or option pertaining to any of the
Collateral, and in connection therewith, to deposit and deliver any and all of
the Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as Pledgee may determine,
all without liability except to account for property actually received by
Pledgee, but Pledgee shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
7. Remedies. Upon the occurrence and during the continuance of an
--------
Event of Default, Pledgee, on behalf of Pledgee and Lenders, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Pledgor or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give an option or options to purchase, contract to sell
or otherwise dispose of (including any disposition in connection with a merger
of a Subsidiary) and deliver the Collateral, or any part thereof, in one or more
portions at public or private sale or sales or transactions, at any exchange,
broker's board or at any of Pledgee's offices or elsewhere upon such terms and
conditions as Pledgee may deem advisable and at such prices as it may deem best,
for any combination of cash and/or securities or other property or on credit or
for future delivery without assumption of any credit risk, with the right to
Pledgee upon any such sale or sales, public or private, to purchase, on behalf
of Pledgee and Lenders, the whole or any part of the Collateral so sold free of
any right or equity of redemption in Pledgor, which right or equity of
redemption Pledgor hereby expressly waives and releases. Pledgee shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization, sale or disposition, after deducting all costs and expenses of
5
every kind incurred therein or incidental to the safekeeping or otherwise of any
and all of the Collateral or in any way relating to the rights of Pledgee or
Lenders hereunder, including attorneys' fees and expenses, to the payment, in
whole or in part, of the Liabilities in such order (unless a court of competent
jurisdiction shall otherwise direct) as Pledgee may elect. Pledgor shall remain
liable for any deficiency remaining unpaid after such application. Only after
so paying over such net proceeds and after the payment by Pledgee of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code of the State of Illinois, need
Pledgee account for the surplus, if any, to Pledgor. Pledgor agrees that
Pledgee need not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or other intended
disposition is to take place and that such notice shall constitute commercially
reasonable notification of such matters. No notification need be given to
Pledgor if Pledgor has signed after default a statement renouncing any right to
notification of sale or other intended disposition. In addition to the rights
and remedies granted to Pledgee and Lenders in this Agreement and in any of the
other Loan Documents, Pledgee and Lenders shall have all the rights and remedies
of secured parties under the Uniform Commercial Code of the State of Illinois
and under any other applicable law. Pledgor further agrees to waive and agrees
not to assert any rights or privileges which it may acquire under Section 9-112
of the Uniform Commercial Code of the State of Illinois and Pledgor shall be
liable for the deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay the Liabilities in full.
8. No Disposition, Liens, etc. Except as expressly permitted
---------------------------
pursuant to the Credit Agreement, without the prior written consent of Pledgee,
Pledgor agrees that it will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any of the Collateral, nor
create, incur or permit to exist any Lien (other than Inchoate Tax Liens) on any
of the Collateral, or any interest therein, or any proceeds thereof, except for
the Liens granted pursuant to this Agreement. Except as permitted under the
Credit Agreement, Pledgor agrees that it will not vote to enable, and will not
otherwise permit any Subsidiary to (a) issue any stock or other securities of
any nature in addition to or in exchange or substitution for the Pledged Shares
or (b) dissolve, liquidate, retire any of its capital stock, reduce its capital
or merge or consolidate with any other Person.
9. Sale of Pledged Shares. (a) Pledgor acknowledges that Pledgee may
----------------------
be unable to effect a public sale or disposition (including, without limitation,
any disposition in connection with a merger of a Subsidiary) of any or all the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities laws,
but may be compelled to resort to one or more private sales or dispositions
thereof to a restricted group of purchasers who will be obliged to agree, among
other things, to acquire such securities for their own account for investment
and not with a view to the distribution or resale thereof. Pledgor acknowledges
that any such private sale or disposition may result in prices and other terms
(including the terms of any securities or other property received in connection
therewith) less favorable to the seller than if such sale or disposition were a
public sale or disposition and, shall not be deemed commercially unreasonable
solely because such sale is a private sale. Pledgee shall be under no
obligation to delay a sale or disposition of any of the Collateral in order to
permit Pledgor or any Subsidiary to register such securities for public sale
6
under the Securities Act, or under applicable state securities laws, even if
Pledgor or such Subsidiary would agree to do so.
(b) Pledgor further agrees to do or cause to be done all such
other reasonable acts and things as may be necessary to make any sale or other
disposition of all or any portion of the Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales or dispositions, all at Pledgor's expense.
(c) Pledgor further agrees to indemnify and hold harmless Pledgee
and each Lender and their respective successors and assigns, officers,
directors, employees and agents, and any Person in control of any thereof, from
and against any loss, liability, claim, damage and expense, including, without
limitation, attorneys' fees and expenses (in this paragraph collectively called
the "Indemnified Liabilities"), under federal and state securities laws or
otherwise insofar as such loss, liability, claim, damage or expense (i) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, prospectus or offering
memorandum, any preliminary prospectus or preliminary offering memorandum, any
amendment or supplement to any thereof or any other writing prepared in
connection with the offer, sale or resale of all or any portion of the
Collateral (collectively, the "Disclosure Documents") unless such untrue
statement of material fact was provided by Pledgee or such Lender specifically
for inclusion therein, or (ii) arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements in any of the Disclosure Documents not misleading, such
indemnification to remain operative regardless of any investigation made by or
on behalf of Pledgee, any Lender and their respective successors and assigns,
officers, directors, employees and agents, or any Person in control of any
thereof. In connection with a public sale or other distribution, Pledgor shall
provide customary indemnification to any underwriters and their respective
successors and assigns, officers and directors, and each Person who controls any
such underwriter (within the meaning of the Securities Act). If and to the
extent that any of the foregoing undertakings in this paragraph may be
unenforceable for any reason, Pledgor agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligations of Pledgor under this
paragraph (c) shall survive the termination of this Agreement.
(d) Pledgor further agrees to waive any and all rights of
subrogation it may have against any Subsidiary upon the sale or other
disposition of all or any portion of the Collateral by Pledgee.
10. Further Assurances. Pledgor agrees that at any time and from
------------------
time to time upon the written request of Pledgee, Pledgor will execute and
deliver all stock powers, financing statements and other documents and do such
further acts and things as Pledgee may reasonably request consistent with the
provisions hereof in order to effect the purposes of this Agreement.
7
11. 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 hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver; Cumulative Remedies. Pledgee shall not by any act,
------------------------------
delay, omission or otherwise be deemed to have waived any of its remedies
hereunder, and no waiver by Pledgee shall be valid unless in writing and signed
by Pledgee, on behalf of the Lenders, and then only to the extent therein set
forth. A waiver by Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Pledgee would
otherwise have on any subsequent occasion. No course of dealing between Pledgor
and Pledgee or any Lender and no failure to exercise, nor any delay by Pledgee
in exercising any right, power or privilege hereunder or under the Credit
Agreement, on behalf of Lenders, shall impair such right or remedy or operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
13. Successors and Assigns. This Agreement and all obligations of
----------------------
Pledgor hereunder shall be binding upon the successors and assigns of Pledgor,
and shall, together with the rights and remedies of Pledgee and Lenders
hereunder, inure to the benefit of Pledgee and Lenders and their successors and
assigns, except that Pledgor shall not have the right to assign its rights or
obligations under this Agreement or any interest herein without the prior
written consent of Pledgee.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
--------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS (WITHOUT REFERENCE TO CONFLICTS OF LAW PRINCIPLES).
15. Termination. This Agreement and the Liens granted hereunder
-----------
shall terminate upon the full and complete performance and satisfaction of the
Liabilities (other than contingent indemnification obligations to the extent no
unsatisfied claim giving rise thereto has been asserted).
16. Possession of Collateral. Beyond the exercise of reasonable care
------------------------
to assure the safe custody of the Collateral in the physical possession of
Pledgee pursuant hereto, neither Pledgee nor any Lender, nor any nominee of any
of them, shall have any duty or liability to collect any sums due in respect of
the Collateral or to protect, preserve or exercise any rights pertaining to the
Collateral, and Pledgee, each Lender and any nominee thereof shall be relieved
of all responsibility for any portion of the Collateral surrendered to Pledgor.
17. Survival of Representations. All representations and warranties
---------------------------
of Pledgor contained in this Agreement shall survive the execution and delivery
of this Agreement.
8
18. Taxes and Expenses. Pledgor will upon demand pay to Pledgee, for
------------------
the benefit of Lenders, (a) any taxes (excluding income taxes, franchise taxes
or other taxes levied on gross earnings, profits or the like) payable or ruled
payable by any federal, state or other governmental authority in respect of this
Agreement, together with interest and penalties, if any, and (b) all expenses,
including the fees and expenses of attorneys, accountants, consultants or other
experts and agents that Pledgee or Lenders may retain in connection with (i) the
administration of this Agreement, (ii) the custody, preservation or sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights and remedies of Pledgee or Lenders
hereunder or (iv) the failure of Pledgor to perform or observe any of the
provisions hereof.
19. Pledgee Appointed Attorney-In-Fact. Pledgor hereby irrevocably
----------------------------------
appoints Pledgee as Pledgor's attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from time to time
in Pledgee's discretion, to take any action and to execute any instrument that
Pledgee deems reasonably necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation, to receive, endorse and collect
all instruments made payable to Pledgor representing any dividend, interest
payment or other distribution in respect of the Collateral and to give full
discharge for the same, when and to the extent permitted by this Agreement.
20. Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication required or permitted to be given shall be in
writing addressed and delivered to the respective party as set forth in the
Credit Agreement. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given.
21. Changes in Writing. No amendment, modification, termination or
------------------
waiver of any provision of this Agreement or consent to any departure by Pledgor
therefrom, shall in any event be effective without the written concurrence of
Pledgee and Pledgor, and then only to the extent specifically set forth in such
writing.
22. Headings. Section and subsection headings in this Agreement are
--------
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
23. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
24. Entire Agreement. This Agreement embodies the entire agreement
----------------
and understanding among Pledgor, Pledgee and Lenders and supersedes all prior
oral and written agreements and understandings among Pledgor, Pledgee and
Lenders relating to the subject matter hereof.
25. WAIVER OF JURY TRIAL. PLEDGOR, PLEDGEE AND EACH LENDER HEREBY
--------------------
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
9
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE
OTTER LOAN DOCUMENTS. PLEDGOR, PLEDGEE AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH
HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. PLEDGOR, PLEDGEE AND EACH LENDER WARRANT AND REPRESENT THAT
EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- Signature Page Follows -
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers on the date
first above written.
XXXXX & XXXXX MANAGEMENT SERVICES, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Its: Xxxxx Xxxxxx, Chief Financial Officer
& Executive Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxx Xxxxxxx
Its: Xxxxx Xxxxxxx, Vice President
11
