Exhibit 10.8
OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT
[BORROWER PLEDGE: NON-GMAC PARTICIPATING PARTNERSHIPS]
OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (this "Pledge
Agreement"), dated as of January 30, 2002, by and among THE XXXXXXX MASTER
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Borrower"), XXXXXXX XX
HOLDING LLC, a Delaware limited liability company (the "Holding Company"), the
DELAWARE LIMITED LIABILITY COMPANIES described in Schedule 1 attached hereto
(collectively, the "General Partner Pledgors"), each being a general partner of
a Participating Limited Partnership (as defined below) as specified on Schedule
2 attached hereto, and FLEET NATIONAL BANK, a national banking association
having an address at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as agent
(Fleet National Bank, in such capacity as agent, hereinafter referred to as
"Agent") for a syndicate of Lenders (singly and collectively, the "Lenders") as
specifically provided in the Loan Agreement (as defined below).
W I T N E S S E T H
WHEREAS, pursuant to that certain Loan Agreement dated as of January 30,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Loan Agreement") entered into by and among the Borrower, the Agent and the
Lenders, the Agent and the Lenders have agreed to make a loan ("Loan") to the
Borrower in the aggregate principal amount of $225,000,000.00, upon the terms
and subject to the conditions set forth therein.
WHEREAS, the Holding Company and the General Partner Pledgors have
substantial financial dealings with the Borrower and are affiliated with the
Borrower (by ownership, contractual relationship, employment and/or other
meaningful business relationship), and the extension of credit and the providing
of financial accommodations to the Borrower will enhance and benefit the
business activities and interests of the Holding Company and the General Partner
Pledgors.
WHEREAS, the Borrower owns 100.0% of the limited partnership interests in
each of the Delaware limited partnerships described in Schedule 2 attached
hereto (the "Participating Limited Partnerships") and 100.0% of such series of
membership interests in the Holding Company as are specified in Schedule 3
attached hereto.
WHEREAS, the Holding Company owns 100.0% of the membership interests in
each of the General Partner Pledgors.
WHEREAS, each General Partner Pledgor owns 100.0% of the general
partnership interests in such of the Participating Limited Partnerships as set
forth on Schedule 2 attached hereto.
WHEREAS, as a condition to extending the Loan to the Borrower, the Agent
and the Lenders have required the Holding Company to execute and deliver a
Guaranty of even date herewith, guaranteeing the payment and performance of all
obligations of the Borrower arising under or pursuant to the Loan Agreement (the
"Guaranty").
WHEREAS, as a further condition to extending the Loan to the Borrower, the
Agent and the Lenders have required the Borrower, the Holding Company and each
of the General Partner Pledgors to execute and deliver this Pledge Agreement and
certain other Security Documents to secure the Borrower's and the General
Partner Pledgors' obligations under the Loan Agreement and the Holding Company's
obligations under its Guaranty.
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NOW, THEREFORE, in consideration of the premises and to induce the Lenders
to make the Loan under the Loan Agreement, Borrower, the Holding Company and
each of the General Partner Pledgors hereby agree with Agent and the Lenders as
follows:
1. Defined Terms. Unless otherwise defined herein, terms which are defined
in the Loan Agreement and used herein are so used as so defined, and the
following terms shall have the following meanings:
"Agent": as defined in the first paragraph of this Pledge Agreement.
"Borrower": as defined in the first paragraph of this Pledge
Agreement.
"Borrower Collateral": means the Borrower Pledged Interests and all
Borrower Proceeds thereof.
"Borrower Obligations": means all indebtedness, obligations and
liabilities of the Borrower to the Agent and/or any of the Lenders,
whether now existing or hereafter arising, direct or indirect, absolute or
contingent, under any one or more of: (i) this Pledge Agreement; (ii) the
Loan Agreement, Note or any other Loan Document; and (iii) each of the
same as hereafter modified, amended, extended or replaced, including,
without limitation, the Obligations (as defined in the Loan Agreement).
"Borrower Pledged Interests": means all right, title and interest of
the Borrower, whether now owned or hereafter acquired, as (i) the sole
limited partner of each of the Participating Limited Partnerships listed
on Schedule 2 hereto and (ii) the sole member and holder of 100.0% of each
series of membership interests in the Holding Company listed on Schedule 3
attached hereto, together with all interests, certificates, options or
rights of any nature whatsoever which may be issued or granted to the
Borrower by the Participating Limited Partnerships or the Holding Company
in respect thereof.
"Borrower Proceeds": means (i) the Borrower's right, title and
interest in and to all Distributions, monies, fees, payments,
compensations and proceeds now or hereafter payable in respect of the
Borrower Pledged Interests, whether payable as profits, Distributions,
asset Distributions, repayment of loans or capital or otherwise and
including all "proceeds" as such term is defined in Section 9-306(1) of
the UCC; (ii) all books, records, electronically stored data and
information relating to the Borrower Pledged Interests and all rights of
access to such books, records and information; (iii) all contract rights,
general intangibles, claims, powers, privileges, benefits and remedies of
the Borrower relating to the foregoing; (iv) all additions to the Borrower
Pledged Interests, all substitutions therefor and all replacements
thereof; and (v) all cash or non-cash proceeds of any of the foregoing.
"Cash Management Agreement": shall mean that certain Cash Management
Agreement, dated as of January 30, 2002, among the Borrower, the Holding
Company, MLP Manager Corp. (the manager of each of the General Partner
Pledgors), the Participating Limited Partnerships, various other
subsidiaries of the Borrower, the Agent and the Lenders, as amended,
supplemented or otherwise modified from time to time.
"Consents": shall mean those certain Consents from the Participating
Limited Partnerships, the Holding Company and the General Partner Pledgors
referenced in Sections 4(a) and 4(b) of this Pledge Agreement.
"General Partner Pledgors": as defined in the first paragraph of
this Pledge Agreement.
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"General Partner Pledgor Collateral": means the General Partner
Pledgor Pledged Interests and all General Partner Pledgor Proceeds
thereof.
"General Partner Pledgor Pledged Interests": means all right, title
and interest of each of the General Partner Pledgors, whether now owned or
hereafter acquired, as the sole general partner of such of the
Participating Limited Partnerships as listed on Schedule 2 hereto,
together with all interests, certificates, options or rights of any nature
whatsoever which may be issued or granted to the General Partner Pledgors
by the Participating Limited Partnerships in respect thereof.
"General Partner Pledgor Obligations": means all indebtedness,
obligations and liabilities of the Borrower and/or the General Partner
Pledgors to the Agent and/or any of the Lenders, whether now existing or
hereafter arising, direct or indirect, absolute or contingent, under any
one or more of: (i) this Pledge Agreement; (ii) the Loan Agreement, the
Note or any other Loan Document; and (iii) each of the same as hereafter
modified, amended, extended or replaced, including, without limitation,
the Obligations (as defined in the Loan Agreement).
"General Partner Pledgor Proceeds": means (i) each General Partner
Pledgor's right, title and interest in and to all Distributions, monies,
fees, payments, compensations and proceeds now or hereafter payable in
respect of the General Partner Pledgor Pledged Interests, whether payable
as profits, Distributions, asset Distributions, repayment of loans or
capital or otherwise and including all "proceeds" as such term is defined
in Section 9-306(1) of the UCC; (ii) all books, records, electronically
stored data and information relating to the General Partner Pledgor
Pledged Interests and all rights of access to such books, records and
information; (iii) all contract rights, general intangibles, claims,
powers, privileges, benefits and remedies of the General Partner Pledgors
relating to the foregoing; (iv) all additions to the General Partner
Pledgor Pledged Interests, all substitutions therefor and all replacements
thereof; and (v) all cash or non-cash proceeds of any of the foregoing.
"Guaranteed Obligations": as defined in the Guaranty.
"Guaranty": as defined in the recitals of this Pledge Agreement.
"Holding Company": as defined in the first paragraph of this Pledge
Agreement.
"Holding Company Collateral": means the Holding Company Pledged
Interests and all Holding Company Proceeds thereof.
"Holding Company Obligations": means all indebtedness, obligations
and liabilities of the Holding Company to the Agent and/or any of the
Lenders, whether now existing or hereafter arising, direct or indirect,
absolute or contingent, under any one or more of: (i) this Pledge
Agreement; (ii) the Guaranty; and (iii) each of the same as hereafter
modified, amended, extended or replaced, including, without limitation,
the Guaranteed Obligations.
"Holding Company Pledged Interests": means all right, title and
interest of the Holding Company, whether now owned or hereafter acquired,
as the sole member of each of the General Partner Pledgors, together with
all interests, certificates, options or rights of any nature whatsoever
which may be issued or granted to the Holding Company by the General
Partner Pledgors in respect thereof.
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"Holding Company Proceeds": means (i) the Holding Company's right,
title and interest in and to all Distributions, monies, fees, payments,
compensations and proceeds now or hereafter payable in respect of the
Holding Company Pledged Interests, whether payable as profits,
Distributions, asset Distributions, repayment of loans or capital or
otherwise and including all "proceeds" as such term is defined in Section
9-306(1) of the UCC; (ii) all books, records, electronically stored data
and information relating to the Holding Company Pledged Interests and all
rights of access to such books, records and information; (iii) all
contract rights, general intangibles, claims, powers, privileges, benefits
and remedies of the Holding Company relating to the foregoing; (iv) all
additions to the Holding Company Pledged Interests, all substitutions
therefor and all replacements thereof; and (v) all cash or non-cash
proceeds of any of the foregoing.
"Lenders": as defined in the first paragraph of this Pledge
Agreement.
"Loan": as defined in the recitals of this Pledge Agreement.
"Loan Agreement": as defined in the recitals of this Pledge
Agreement.
"Participating Limited Partnerships": as defined in the recitals of
this Pledge Agreement.
"Pledge Agreement": means this Ownership Interest Pledge and
Security Agreement, as amended, supplemented or otherwise modified from
time to time.
"UCC": means the Uniform Commercial Code from time to time in effect
in The Commonwealth of Massachusetts; provided, that if by mandatory
provisions of law, the perfection or the effect of perfection or
non-perfection of the security interest granted hereunder in the Borrower
Collateral, Holding Company Collateral or the General Partner Pledgor
Collateral is governed by the Uniform Commercial Code of a jurisdiction
other than Massachusetts, "UCC" means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of provisions hereof
relating to such perfection or effect of perfection or non-perfection.
2. Pledge; Grant of Security Interest.
(a) By Borrower. As security for the full and punctual payment and
performance of the Borrower Obligations when due and payable (whether upon
stated maturity, by acceleration or otherwise), Borrower hereby transfers,
assigns, grants, bargains, sells, conveys, hypothecates, pledges, sets
over, endorses over and delivers to Agent all the Borrower Pledged
Interests, and Borrower hereby grants, pledges, hypothecates, transfers
and assigns to Agent a continuing lien on and security interest in all of
the Borrower Collateral.
(b) By Holding Company. As security for the full and punctual
payment and performance of the Holding Company Obligations when due and
payable (whether upon stated maturity, by acceleration or otherwise), the
Holding Company hereby transfers, assigns, grants, bargains, sells,
conveys, hypothecates, pledges, sets over, endorses over and delivers to
Agent all the Holding Company Pledged Interests, and the Holding Company
hereby grants, pledges, hypothecates, transfers and assigns to Agent a
continuing lien on and security interest in all of the Holding Company
Collateral.
(c) By General Partner Pledgors. As security for the full and
punctual payment and performance of the General Partner Pledgor
Obligations when due and payable (whether upon stated maturity, by
acceleration or otherwise), the General Partner Pledgors hereby
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transfer, assign, grant, bargain, sell, convey, hypothecate, pledge, set
over, endorse over and deliver to Agent all the General Partner Pledgor
Pledged Interests, and the General Partner Pledgors hereby grant, pledge,
hypothecate, transfer and assign to Agent a continuing lien on and
security interest in all of the General Partner Pledgor Collateral.
3. Delivery of Certificates, Instruments, Etc. The Borrower, the Holding
Company and each General Partner Pledgor shall deliver to Agent:
(a) all original certificates, instruments and other documents, if
any, evidencing or representing the Borrower Pledged Interests, the
Holding Company Pledged Interests and the General Partner Pledgor Pledged
Interests, concurrently with the execution and delivery of this Pledge
Agreement; and
(b) the original certificates, instruments or other documents, if
any, evidencing or representing all other Borrower Collateral, Holding
Company Collateral and General Partner Pledgor Collateral (except for
collateral which this Pledge Agreement specifically permits the Borrower,
the Holding Company or the General Partner Pledgors to retain) within five
(5) days after the Borrower's, the Holding Company's or the General
Partner Pledgor's receipt thereof.
4. Powers and Transfer Instruments.
(a) Concurrently with the delivery to the Agent of this Pledge
Agreement and each certificate, if any, representing the Borrower Pledged
Interests, the Borrower shall deliver a duly executed Consent from each
Participating Limited Partnership and from each General Partner Pledgor.
(b) Concurrently with the delivery to the Agent of this Pledge
Agreement and each certificate, if any, representing the Holding Company
Pledged Interests, the Holding Company shall deliver a duly executed
Consent from each General Partner Pledgor.
(c) Concurrently with the delivery to the Agent of this Pledge
Agreement and each certificate, if any, representing the General Partner
Pledgor Pledged Interests, the General Partner Pledgors shall deliver a
duly executed Consent from each Participating Limited Partnership.
5. Representations and Warranties. The Borrower, the Holding Company and
each General Partner Pledgor represent and warrant that:
(a) Except for any consents as may be required in connection with
any disposition of any portion of the Borrower Collateral, the Holding
Company Collateral or the General Partner Pledgor Collateral by laws
affecting the offering and sale of securities generally or as otherwise
contemplated by the Loan Agreement, no consent of any other person or
entity (including, without limitation, any owner or creditor of the
Borrower, the Holding Company or the General Partner Pledgors), and no
license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing (other than the filing of financing
statements under the UCC in order to perfect a security interest in that
portion of the Borrower Collateral, the Holding Company Collateral and the
General Partner Pledgor Collateral in which a security interest is
perfected by filing) or declaration with any governmental instrumentality
is required in connection with (i) the execution, delivery, performance,
validity or enforceability of this Pledge Agreement, (ii) the perfection
or maintenance of the security interest created hereby (including the
first priority nature of such
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security interest) or (iii) the exercise by the Lender of any rights
provided for in this Pledge Agreement;
(b) The Borrower Pledged Interests in the Participating Limited
Partnerships listed on Schedule 2 constitute all of the limited
partnership interests owned by the Borrower in the Participating Limited
Partnerships and constitute 100.0% of the limited partnership interests in
the Participating Limited Partnerships;
(c) The Borrower Pledged Interests in the Holding Company constitute
100.0% of each series of membership interest in the Holding Company listed
on Schedule 3 ;
(d) The Holding Company Pledged Interests in the General Partner
Pledgors listed on Schedule 1 constitute all of the membership interests
owned by the Holding Company in the General Partner Pledgors and
constitute 100.0% of the membership interests in the General Partner
Pledgors;
(e) The General Partner Pledgor Pledged Interests in the
Participating Limited Partnerships listed on Schedule 2 constitute all of
the general partnership interests owned by the General Partner Pledgors in
the Participating Limited Partnerships and constitute 100.0% of the
general partnership interests in the Participating Limited Partnerships;
(f) All the Borrower Pledged Interests, the Holding Company Pledged
Interests and the General Partner Pledgor Pledged Interests have been duly
and validly issued and are fully paid. No certificate or other instrument
has been issued at any time to evidence the Borrower Pledged Interests,
the Holding Company Pledged Interests or the General Partner Pledgor
Pledged Interests. None of the limited partnership interests or the
membership interests comprising the Borrower Collateral, none of the
membership interests comprising the Holding Company Collateral, and none
of the general partnership interests comprising the General Partner
Pledgor Collateral, are dealt in or traded on securities exchanges or in
securities markets, and none by its terms expressly provides that it is a
security governed by Article 8 of the UCC or that it is an investment
company security, and none is held in a securities account (as defined in
Section 8-501 of the UCC);
(g) The Borrower is the sole holder of record and sole beneficial
owner of, and has good and valid title to, the Borrower Pledged Interests
in the Participating Limited Partnerships listed on Schedule 2 and in the
Holding Company listed on Schedule 3, free of any and all liens or options
in favor of, or claims of, any other Person, except the lien created by
this Pledge Agreement;
(h) The Holding Company is the sole holder of record and sole
beneficial owner of, and has good and valid title to, the Holding Company
Pledged Interests in the General Partner Pledgors listed on Schedule 1,
free of any and all liens or options in favor of, or claims of, any other
Person, except the lien created by this Pledge Agreement;
(i) Each General Partner Pledgor is the sole holder of record and
sole beneficial owner of, and has good and valid title to, the General
Partner Pledgor Pledged Interests in the applicable Participating Limited
Partnership listed on Schedule 2, free of any and all liens or options in
favor of, or claims of, any other Person, except the lien created by this
Pledge Agreement;
(j) Upon the filing of the Form UCC-1 Statements referred to in
Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such Borrower Pledged
Interests and related Borrower Collateral with respect to that
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portion of the Borrower Collateral in which a security interest is
perfected by the filing of a financing statement, enforceable as such
against all creditors of Borrower and any Persons purporting to purchase
any Borrower Pledged Interests and related Borrower Collateral from
Borrower;
(k) Upon the filing of the Form UCC-1 Statements referred to in
Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such Holding Company
Pledged Interests and related Holding Company Collateral with respect to
that portion of the Holding Company Collateral in which a security
interest is perfected by the filing of a financing statement, enforceable
as such against all creditors of the Holding Company and any Persons
purporting to purchase any Holding Company Pledged Interests and related
Holding Company Collateral from the Holding Company;
(l) Upon the filing of the Form UCC-1 Statements referred to in
Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such General Partner
Pledgor Pledged Interests and related General Partner Pledgor Collateral
with respect to that portion of the General Partner Pledgor Collateral in
which a security interest is perfected by the filing of a financing
statement, enforceable as such against all creditors of the General
Partner Pledgors and any Persons purporting to purchase any General
Partner Pledgor Pledged Interests and related General Partner Pledgor
Collateral from any General Partner Pledgor;
(m) The Holding Company is duly organized, validly existing and in
good standing under the laws of the state of its formation and has all
requisite power and authority under the laws of such state and under its
organizational and charter documents to enter into and perform its
obligations under this Pledge Agreement;
(n) Each of the General Partner Pledgors is duly organized, validly
existing and in good standing under the laws of the state of its formation
and has all requisite power and authority under the laws of such state and
under its organizational and charter documents to enter into and perform
its obligations under this Pledge Agreement;
(o) The Holding Company has taken all necessary legal and other
action to authorize the execution, delivery and performance of this Pledge
Agreement, and this Pledge Agreement constitutes the valid and binding
obligation and agreement of the Holding Company, enforceable in accordance
with its terms, except as such may be limited by the application of
bankruptcy, moratorium, reorganization and other laws affecting the rights
of creditors generally or by general equitable principles;
(p) Each of the General Partner Pledgors has taken all necessary
legal and other action to authorize the execution, delivery and
performance of this Pledge Agreement, and this Pledge Agreement
constitutes the valid and binding obligation and agreement of each of the
General Partner Pledgors, enforceable in accordance with its terms, except
as such may be limited by the application of bankruptcy, moratorium,
reorganization and other laws affecting the rights of creditors generally
or by general equitable principles;
(q) The Holding Company has not received any notice of default under
any agreement or instrument to which it is a party or by which its assets
may be bound which default would have a Material Adverse Effect, and the
Holding Company is not in default under any order, judgment, award or
decree of any court, arbitrator or other governmental authority binding
upon or affecting it or by which its may be bound or affected which
default would have a Material Adverse Effect;
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(r) None of the General Partner Pledgors has received any notice of
default under any agreement or instrument to which any of them is a party
or by which any of their assets may be bound which default would have a
Material Adverse Effect, and none of the General Partner Pledgors is in
default under any order, judgment, award or decree of any court,
arbitrator or other governmental authority binding upon or affecting any
of them or by which any of their assets may be bound or affected which
default would have a Material Adverse Effect;
(s) Neither the execution and delivery of this Pledge Agreement nor
the compliance by the Holding Company with the terms and provisions hereof
are events which of themselves, or with the giving of notice or the
passage of time, or both, would constitute, on the part of the Holding
Company, a violation of or conflict with, or result in any breach of, or
default under, the terms, conditions or provisions of, (i) the
organizational and charter documents of the Holding Company, or (ii) any
other agreement or instrument to which the Holding Company is a party or
by which the Holding Company, or any of its assets, are bound;
(t) Neither the execution and delivery of this Pledge Agreement nor
the compliance by any General Partner Pledgor with the terms and
provisions hereof are events which of themselves, or with the giving of
notice or the passage of time, or both, would constitute, on the part of
any General Partner Pledgor, a violation of or conflict with, or result in
any breach of, or default under, the terms, conditions or provisions of,
(i) the organizational and charter documents of any General Partner
Pledgor, or (ii) any other agreement or instrument to which any General
Partner Pledgor is a party or by which any General Partner Pledgor, or any
of its assets, are bound;
(u) Neither the execution and delivery of this Pledge Agreement nor
the compliance by the Holding Company with the terms and provisions hereof
are events which of themselves, or with the giving of notice or the
passage of time, or both, would result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever on any of the
assets of the Holding Company in all cases other than as contemplated by
this Pledge Agreement or the Loan Agreement, and no such event will result
in the acceleration of the due date of any obligation of the Holding
Company;
(v) Neither the execution and delivery of this Pledge Agreement nor
the compliance by any General Partner Pledgor with the terms and
provisions hereof are events which of themselves, or with the giving of
notice or the passage of time, or both, would result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever on
any of the assets of any General Partner Pledgor in all cases other than
as contemplated by this Pledge Agreement or the Loan Agreement, and no
such event will result in the acceleration of the due date of any
obligation of any General Partner Pledgor;
(w) There are no judgments presently outstanding and unsatisfied
against the Holding Company or any of its assets which would cause an
Event of Default under the Loan Agreement, and neither the Holding Company
nor any of its assets are a party to, or the subject of, any actions or
suits or proceedings in equity or by any governmental authorities which,
if adversely determined, would have a Material Adverse Effect, and no such
litigation or proceeding has been threatened in writing against the
Holding Company or against any of the Holding Company's assets, and, to
the Holding Company's knowledge, no investigation in contemplation of such
litigation or proceeding has begun or is pending or has been threatened in
writing, any of which it is probable (within the meaning of Statement of
Financial Accounting Standards No. 5) that there will be an adverse
determination and which, if adversely determined, would have a Material
Adverse Effect;
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(x) There are no judgments presently outstanding and unsatisfied
against any General Partner Pledgor or any of its assets which would cause
an Event of Default under the Loan Agreement, and neither the General
Partner Pledgors nor any of their assets are a party to, or the subject
of, any actions or suits or proceedings in equity or by any governmental
authorities which, if adversely determined, would have a Material Adverse
Effect, and no such litigation or proceeding has been threatened in
writing against any General Partner Pledgor or against any of the General
Partner Pledgors' assets, and, to the General Partner Pledgors' knowledge,
no investigation in contemplation of such litigation or proceeding has
begun or is pending or has been threatened in writing, any of which it is
probable (within the meaning of Statement of Financial Accounting
Standards No. 5) that there will be an adverse determination and which, if
adversely determined, would have a Material Adverse Effect;
(y) The address of the Holding Company's chief executive office and
principal place of business and the location of the Holding Company's
books and records relating to the Holding Company Pledged Interests is set
forth below the Holding Company's signature hereto;
(z) The address of each General Partner Pledgor's chief executive
office and principal place of business and the location of each General
Partner Pledgor's books and records relating to the General Partner
Pledgor Pledged Interests is set forth below each General Partner
Pledgor's signature hereto; and
(aa) There are no restrictions on the transfer of the Borrower
Collateral, the Holding Company Collateral or the General Partner Pledgor
Collateral to the Agent hereunder, or with respect to any subsequent
transfer thereof or realization thereupon by the Agent and/or the Lenders
(or, if there are any such restrictions, such transfer restrictions have
been duly waived by all required parties), and, as set forth in the
Consents, the Borrower, the Holding Company and each of the General
Partner Pledgors have obtained all consents needed in connection with any
such transfer or subsequent transfer, subject to matters resulting from
the operation of law.
6. Covenants. The Borrower, the Holding Company and each General Partner
Pledgor covenant and agree with Agent and the Lenders that from and after the
date of this Pledge Agreement until this Pledge Agreement shall be terminated:
(a) If the Borrower shall, as a result of its ownership of the
Borrower Pledged Interests, become entitled to receive or shall receive
(i) any limited liability company certificate (including, without
limitation, any certificate representing a dividend or a Distribution in
connection with any reclassification, increase or reduction of capital or
any certificate issued in connection with any reorganization), option or
rights, (ii) any stock, (iii) any limited partnership interests
(including, without limitation, any certificate representing a dividend or
a Distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights, or (iv) any property other than cash,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any of the Borrower Pledged Interests, or otherwise in
respect thereof, the Borrower shall accept the same as Agent's agent, hold
the same in trust for Agent and deliver the same forthwith to Agent in the
exact form received, duly endorsed by the Borrower to Agent, if required,
together with an undated assignment or power covering such certificate,
duly executed in blank and with, if Agent so requests, signature
guaranteed, to be held by Agent hereunder as additional security for the
Borrower Obligations.
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(b) If the Holding Company shall, as a result of its ownership of
the Holding Company Pledged Interests, become entitled to receive or shall
receive (i) any limited liability company certificate (including, without
limitation, any certificate representing a dividend or a Distribution in
connection with any reclassification, increase or reduction of capital or
any certificate issued in connection with any reorganization), option or
rights, (ii) any stock, (iii) any limited partnership interests
(including, without limitation, any certificate representing a dividend or
a Distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights, or (iv) any property other than cash,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any of the Holding Company Pledged Interests, or otherwise in
respect thereof, the Holding Company shall accept the same as Agent's
agent, hold the same in trust for Agent and deliver the same forthwith to
Agent in the exact form received, duly endorsed by the Holding Company to
Agent, if required, together with an undated assignment or power covering
such certificate, duly executed in blank and with, if Agent so requests,
signature guaranteed, to be held by Agent hereunder as additional security
for the Holding Company Obligations.
(c) If any General Partner Pledgor shall, as a result of its
ownership of the General Partner Pledgor Pledged Interests, become
entitled to receive or shall receive (i) any limited liability company
certificate (including, without limitation, any certificate representing a
dividend or a Distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, (ii) any stock, (iii) any
limited partnership interests (including, without limitation, any
certificate representing a dividend or a Distribution in connection with
any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights, or (iv)
any property other than cash, whether in addition to, in substitution of,
as a conversion of, or in exchange for any of the General Partner Pledgor
Pledged Interests, or otherwise in respect thereof, such General Partner
Pledgor shall accept the same as Agent's agent, hold the same in trust for
Agent and deliver the same forthwith to Agent in the exact form received,
duly endorsed by the General Partner Pledgor to Agent, if required,
together with an undated assignment or power covering such certificate,
duly executed in blank and with, if Agent so requests, signature
guaranteed, to be held by Agent hereunder as additional security for the
General Partner Pledgor Obligations.
(d) Without the prior written consent of Agent, the Borrower will
not, directly or indirectly (i) vote to enable, or take any other action
to permit, the issuer(s) of the Borrower Pledged Interests to issue any
interests or shares, as applicable, or to issue any other securities
convertible into or granting the right to purchase or exchange for any
interests of the issuer(s) of the Borrower Pledged Interests, or (ii) if
prohibited by the Loan Agreement, sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to, the Borrower
Collateral, or (iii) create, incur or permit to exist any lien or option
in favor of, or any claim of any person or entity with respect to, any of
the Borrower Collateral, or any interest therein, except for the lien
provided for by this Pledge Agreement and liens permitted under the Loan
Agreement. The Borrower will defend the right, title and interest of Agent
in and to the Borrower Collateral against the claims and demands of all
Persons whomsoever.
(e) Without the prior written consent of Agent, the Holding Company
will not, directly or indirectly (i) vote to enable, or take any other
action to permit, the issuer(s) of the Holding Company Pledged Interests
to issue any interests or shares, as applicable, or to issue any other
securities convertible into or granting the right to purchase or exchange
for any interests of the issuer(s) of the Holding Company Pledged
Interests, or (ii) if prohibited by the Loan Agreement, sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with
respect to, the Holding Company Collateral, or (iii) create, incur or
permit to
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exist any lien or option in favor of, or any claim of any person or entity
with respect to, any of the Holding Company Collateral, or any interest
therein, except for the lien provided for by this Pledge Agreement and
liens permitted under the Loan Agreement. The Holding Company will defend
the right, title and interest of Agent in and to the Holding Company
Collateral against the claims and demands of all Persons whomsoever.
(f) Without the prior written consent of Agent, the General Partner
Pledgors will not, directly or indirectly (i) vote to enable, or take any
other action to permit, the issuer(s) of the General Partner Pledgor
Pledged Interests to issue any interests or shares, as applicable, or to
issue any other securities convertible into or granting the right to
purchase or exchange for any interests of the issuer(s) of the General
Partner Pledgor Pledged Interests, or (ii) if prohibited by the Loan
Agreement, sell, assign, transfer, exchange or otherwise dispose of, or
grant any option with respect to, the General Partner Pledgor Collateral,
or (iii) create, incur or permit to exist any lien or option in favor of,
or any claim of any person or entity with respect to, any of the General
Partner Pledgor Collateral, or any interest therein, except for the lien
provided for by this Pledge Agreement and liens permitted under the Loan
Agreement. The General Partner Pledgors will defend the right, title and
interest of Agent in and to the General Partner Pledgor Collateral against
the claims and demands of all Persons whomsoever.
(g) At any time and from time to time, upon the written request of
Agent, and at the sole expense of the Borrower, the Borrower will promptly
and duly execute and deliver such further instruments and documents and
take such further actions as Agent may reasonably request for the purposes
of obtaining or preserving the full benefits of this Pledge Agreement and
of the rights and powers herein granted. If any amount payable under or in
connection with any of the Borrower Collateral shall be or become
evidenced by any promissory note, other instrument or chattel paper, such
note, instrument or chattel paper shall be promptly delivered to Agent,
duly endorsed in a manner satisfactory to Agent, to be held as Borrower
Collateral pursuant to this Pledge Agreement.
(h) At any time and from time to time, upon the written request of
Agent, and at the sole expense of the Holding Company, the Holding Company
will promptly and duly execute and deliver such further instruments and
documents and take such further actions as Agent may reasonably request
for the purposes of obtaining or preserving the full benefits of this
Pledge Agreement and of the rights and powers herein granted. If any
amount payable under or in connection with any of the Holding Company
Collateral shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall
be promptly delivered to Agent, duly endorsed in a manner satisfactory to
Agent, to be held as Holding Company Collateral pursuant to this Pledge
Agreement.
(i) At any time and from time to time, upon the written request of
Agent, and at the sole expense of the General Partner Pledgors, the
General Partner Pledgors will promptly and duly execute and deliver such
further instruments and documents and take such further actions as Agent
may reasonably request for the purposes of obtaining or preserving the
full benefits of this Pledge Agreement and of the rights and powers herein
granted. If any amount payable under or in connection with any of the
General Partner Pledgor Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument
or chattel paper shall be promptly delivered to Agent, duly endorsed in a
manner satisfactory to Agent, to be held as General Partner Pledgor
Collateral pursuant to this Pledge Agreement.
(j) The Borrower, the Holding Company and each General Partner
Pledgor agree to pay, and to indemnify and save Agent harmless from, any
and all liabilities with respect
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to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes (other than income taxes on the income of Agent or
any of the Lenders) which may be payable or determined to be payable with
respect to any of the Borrower Collateral, the Holding Company Collateral
or the General Partner Pledgor Collateral (as the case may be) or in
connection with any of the transactions contemplated by this Pledge
Agreement.
(k) The Holding Company will not merge or consolidate with any
person if prohibited by the Loan Agreement.
(l) None of the General Partner Pledgors will merge or consolidate
with any person if prohibited by the Loan Agreement.
(m) The Borrower, the Holding Company and the General Partner
Pledgors shall, upon request from the Agent, from time to time, cause the
issuer of any securities comprising any of the Borrower Collateral, the
Holding Company Collateral or the General Partner Pledgor Collateral which
may be, but have not been, certificated, to issue certificates with
respect thereto in the name of the Borrower, the Holding Company or the
General Partner Pledgors (as the case may be) or, if so requested by the
Agent, in the name of the Agent as secured party.
(n) Neither the Borrower nor the Holding Company nor any of the
General Partner Pledgors shall exercise any right with respect to the
Borrower Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral which would dilute or adversely affect Agent's rights
in the Borrower Collateral, the Holding Company Collateral and the General
Partner Pledgor Collateral.
(o) Except as permitted in the Loan Agreement, the Borrower shall
not enter into or consent to any amendment or modification of, or with
respect to, the limited partnership agreements of the Participating
Limited Partnerships or the operating agreement of the Holding Company
without Agent's prior written consent in each instance, which consent
shall not be unreasonably withheld.
(p) Except as permitted in the Loan Agreement, the Holding Company
shall not enter into or consent to any amendment or modification of, or
with respect to, the operating agreements of the General Partner Pledgors
without Agent's prior written consent in each instance, which consent
shall not be unreasonably withheld.
(q) Except as permitted in the Loan Agreement, the General Partner
Pledgors shall not enter into or consent to any amendment or modification
of, or with respect to, the limited partnership agreements of the
Participating Limited Partnerships without Agent's prior written consent
in each instance, which consent shall not be unreasonably withheld.
7. Cash Dividends; Distributions; Voting Rights.
(a) Unless an Event of Default shall have occurred and be
continuing, the Borrower shall be permitted to exercise all voting rights
with respect to the Borrower Pledged Interests; provided, however, that
the Borrower shall not, without the prior written consent of Agent in each
instance, which consent shall not be unreasonably withheld, vote the
Borrower Collateral in favor of, or consent to, any resolution or action
which does or might:
(i) impose any restrictions upon the sale, transfer or
disposition of the Borrower Collateral other than
restrictions, if any, the
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application of which is waived to the full satisfaction
of the Agent as to the Borrower Collateral; or
(ii) result in the issuance of any additional interest in the
Participating Limited Partnerships or the Holding
Company, or of any class or series of security, which
issuance might adversely affect the value of the
Borrower Collateral; or
(iii) vest additional powers, privileges, preferences or
priorities to any other class or series of interest in
the Participating Limited Partnerships or the Holding
Company to the detriment of the value of, or rights
accruing to, the Borrower Collateral; or
(iv) except as permitted in the Loan Agreement, permit the
Participating Limited Partnerships or the Holding
Company to sell, transfer, assign, pledge, mortgage or
otherwise encumber any property owned by any of them, or
to incur any new indebtedness in respect of such
property, unless Agent has given its prior written
consent.
(b) Unless an Event of Default shall have occurred and be
continuing, the Holding Company shall be permitted to exercise all voting
rights with respect to the Holding Company Pledged Interests; provided,
however, that the Holding Company shall not, without the prior written
consent of Agent in each instance, which consent shall not be unreasonably
withheld, vote the Holding Company Collateral in favor of, or consent to,
any resolution or action which does or might:
(i) impose any restrictions upon the sale, transfer or
disposition of the Holding Company Collateral other than
restrictions, if any, the application of which is waived
to the full satisfaction of the Agent as to the Holding
Company Collateral; or
(ii) result in the issuance of any additional interest in the
General Partner Pledgors, or of any class of security,
which issuance might adversely affect the value of the
Holding Company Collateral; or
(iii) vest additional powers, privileges, preferences or
priorities to any other class of interest in the General
Partner Pledgors to the detriment of the value of, or
rights accruing to, the Holding Company Collateral; or
(iv) except as permitted in the Loan Agreement, permit the
General Partner Pledgors to sell, transfer, assign,
pledge, mortgage or otherwise encumber any property
owned by any of them, or to incur any new indebtedness
in respect of such property, unless Agent has given its
prior written consent.
(c) Unless an Event of Default shall have occurred and be
continuing, each General Partner Pledgor shall be permitted to exercise
all voting rights with respect to the General Partner Pledgor Pledged
Interests; provided, however, that no General Partner Pledgor shall,
without the prior written consent of Agent in each instance, which consent
shall not be unreasonably withheld, vote the General Partner Pledgor
Collateral in favor of, or consent to, any resolution or action which does
or might:
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(i) impose any restrictions upon the sale, transfer or
disposition of the General Partner Pledgor Collateral
other than restrictions, if any, the application of
which is waived to the full satisfaction of the Agent as
to the General Partner Pledgor Collateral; or
(ii) result in the issuance of any additional interest in the
Participating Limited Partnerships, or of any class of
security, which issuance might adversely affect the
value of the General Partner Pledgor Collateral; or
(iii) vest additional powers, privileges, preferences or
priorities to any other class of interest in the
Participating Limited Partnerships to the detriment of
the value of, or rights accruing to, the General Partner
Pledgor Collateral; or
(iv) except as permitted in the Loan Agreement, permit the
Participating Limited Partnerships to sell, transfer,
assign, pledge, mortgage or otherwise encumber any
property owned by any of them, or to incur any new
indebtedness in respect of such property, unless Agent
has given its prior written consent.
(d) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation, Sections
7.14, 7.15 and 7.16 thereof), the Consents, the Payment Direction Letters,
and the Cash Management Agreement (including, without limitation, Section
2.2 thereof), any and all cash dividends or Distributions or any other
payments received by the Borrower in respect of the Borrower Collateral
shall be directly deposited in a designated Depository Account in the name
of the Borrower. The Borrower agrees that, to the extent that the Borrower
receives directly any cash dividends or Distributions or any other
payments which are required to be deposited in a designated Depository
Account as provided for in the Loan Agreement, the Consents and/or the
Cash Management Agreement, then (i) such amounts shall be deemed to be
Borrower Collateral and shall be held in trust for the benefit of Agent,
(ii) such amounts shall not be commingled with any other funds or property
of the Borrower, and (iii) the Borrower shall deposit such amounts in the
applicable Depository Account within three Business Days of receipt.
(e) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation, Sections
7.14, 7.15 and 7.16 thereof), the Consents, the Payment Direction Letters,
and the Cash Management Agreement (including, without limitation, Section
2.2 thereof), any and all cash dividends or Distributions or any other
payments received by the Holding Company in respect of the Holding Company
Collateral shall be directly deposited in a designated Depository Account
in the name of MLP Manager Corp. or as otherwise directed by Agent in
accordance with the terms of the Loan Agreement. The Holding Company
agrees that, to the extent that the Holding Company receives directly any
cash dividends or Distributions or any other payments which are required
to be deposited in a designated Depository Account as provided for in the
Loan Agreement, the Consents and/or the Cash Management Agreement, then
(i) such amounts shall be deemed to be Holding Company Collateral and
shall be held in trust for the benefit of Agent, (ii) such amounts shall
not be commingled with any other funds or property of the Holding Company,
and (iii) the
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Holding Company shall deposit such amounts in the applicable Depository
Account within three Business Days of receipt.
(f) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation, Sections
7.14, 7.15 and 7.16 thereof), the Consents, the Payment Direction Letters,
and the Cash Management Agreement (including, without limitation, Section
2.2 thereof), any and all cash dividends or Distributions or any other
payments received by any General Partner Pledgor in respect of the General
Partner Pledgor Collateral shall be directly deposited in a designated
Depository Account in the name MLP Manager Corp. or as otherwise directed
by Agent in accordance with the terms of the Loan Agreement. Each General
Partner Pledgor agrees that, to the extent that any General Partner
Pledgor receives directly any cash dividends or Distributions or any other
payments which are required to be deposited in a designated Depository
Account as provided for in the Loan Agreement, the Consents and/or the
Cash Management Agreement, then (i) such amounts shall be deemed to be
General Partner Pledgor Collateral and shall be held in trust for the
benefit of Agent, (ii) such amounts shall not be commingled with any other
funds or property of such General Partner Pledgor, and (iii) such General
Partner Pledgor shall deposit such amounts in the applicable Depository
Account within three Business Days of receipt.
8. Rights of Agent.
(a) If an Event of Default shall have occurred and be continuing,
Agent shall have the right to receive any and all cash dividends or
Distributions or other payments paid in respect of the Borrower
Collateral, the Holding Company Collateral and the General Partner Pledgor
Collateral and make application thereof to the Borrower Obligations, the
Holding Company Obligations or the General Partner Pledgor Obligations (as
the case may be), in such order as Agent, in its sole discretion, may
elect. In connection therewith, if an Event of Default shall have occurred
and be continuing, the Agent shall have the right to direct the issuer(s)
of the Borrower Pledged Interests, the Holding Company Pledged Interests
and the General Partner Pledgor Pledged Interests to pay all such cash
dividends or Distributions or other payment directly to the Agent or as
otherwise directed by the Agent.
(b) If an Event of Default shall have occurred and be continuing,
then all such Borrower Pledged Interests, Holding Company Pledged
Interests and General Partner Pledgor Pledged Interests at Agent's option
shall be registered in the name of Agent or its nominee, and Agent or its
nominee may thereafter exercise (x) all voting and other rights pertaining
to such Borrower Pledged Interests, Holding Company Pledged Interests and
General Partner Pledgor Pledged Interests and (y) any and all rights of
conversion, exchange, subscription and any other rights, privileges or
options pertaining to such Borrower Pledged Interests, Holding Company
Pledged Interests and General Partner Pledgor Pledged Interests as if
Agent were the absolute owner thereof (including, without limitation, the
right to exchange at its discretion any and all of the Borrower Pledged
Interests, the Holding Company Pledged Interests and the General Partner
Pledgor Pledged Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the organizational
structure of the Borrower, the Holding Company or any of the General
Partner Pledgors, or upon the exercise by the Borrower, the Holding
Company any of the General Partner Pledgors or Agent of any right,
privilege or option pertaining to such Borrower Pledged Interests, Holding
Company Pledged Interests or General Partner Pledgor Pledged Interests,
and in connection therewith, the right to deposit and deliver any and all
of the Borrower Pledged Interests, Holding Company Pledged Interests or
General Partner Pledgor Pledged Interests with any committee, depositary,
transfer agent, registrar or other designated agency upon
-15-
such terms and conditions as it may determine), all without liability
except to account for property actually received by it, but Agent shall
have no duty to exercise any such right, privilege or option and shall not
be responsible for any failure to do so or delay in so doing.
(c) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
Borrower or against any other person or entity which may be or become
liable in respect of all or any part of the Borrower Obligations or
against any other Borrower Collateral security therefor, guarantee thereof
or right of offset with respect thereto. Agent shall not be liable for any
failure to demand, collect or realize upon all or any part of the Borrower
Collateral or for any delay in doing so, nor shall it be under any
obligation to sell or otherwise dispose of any Borrower Collateral upon
the request of the Borrower or any other person or entity or to take any
other action whatsoever with regard to the Borrower Collateral or any part
thereof.
(d) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
Holding Company or against any other person or entity which may be or
become liable in respect of all or any part of the Holding Company
Obligations or against any other Holding Company Collateral security
therefor, guarantee thereof or right of offset with respect thereto. Agent
shall not be liable for any failure to demand, collect or realize upon all
or any part of the Holding Company Collateral or for any delay in doing
so, nor shall it be under any obligation to sell or otherwise dispose of
any Holding Company Collateral upon the request of the Holding Company or
any other person or entity or to take any other action whatsoever with
regard to the Holding Company Collateral or any part thereof.
(e) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
General Partner Pledgors or against any other person or entity which may
be or become liable in respect of all or any part of the General Partner
Pledgor Obligations or against any other General Partner Pledgor
Collateral security therefor, guarantee thereof or right of offset with
respect thereto. Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the General Partner Pledgor
Collateral or for any delay in doing so, nor shall it be under any
obligation to sell or otherwise dispose of any General Partner Pledgor
Collateral upon the request of any General Partner Pledgor or any other
person or entity or to take any other action whatsoever with regard to the
General Partner Pledgor Collateral or any part thereof.
(f) Notwithstanding anything to the contrary contained herein, at
all times, the Agent's sole recourse against the General Partner Pledgors
to enforce the General Partner Pledgor Obligations shall be limited to the
rights and remedies against the General Partner Pledgor Collateral, and in
no event shall the Agent or any of the Lenders have any other recourse
against the General Partner Pledgors with respect to the General Partner
Pledgor Obligations.
9. Actions By Agent. The Borrower, the Holding Company and each General
Partner Pledgor hereby designates Agent as the attorney-in-fact of the Borrower,
the Holding Company and each General Partner Pledgor to: (a) after the
occurrence and during the continuance of an Event of Default, endorse in favor
of Agent any of the Borrower Collateral, the Holding Company Collateral or the
General Partner Pledgor Collateral; (b) after the occurrence and during the
continuance of an Event of Default, cause the transfer of any of the Borrower
Collateral, the Holding Company Collateral or the General Partner Pledgor
Collateral in such name as Agent may from time to time determine; (c) cause the
issuance of certificates for book entry and/or uncertificated securities; (d)
renew, extend or roll over any Borrower Collateral, Holding Company Collateral
or General Partner Pledgor Collateral; (e) make, demand and initiate actions to
enforce any of the Borrower Collateral,
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the Holding Company Collateral or the General Partner Pledgor Collateral or
rights therein; and (f) take any other action to effectuate the terms and
provisions of this Pledge Agreement. Agent may take such action with respect to
the Borrower Collateral, the Holding Company Collateral and the General Partner
Pledgor Collateral as Agent may reasonably determine to be necessary to protect
and preserve its interest in the Borrower Collateral, the Holding Company
Collateral and the General Partner Pledgor Collateral. Except as otherwise
provided herein, all of the rights, remedies, powers, privileges and discretions
included in this Section 9 may be exercised by Agent whether or not the Borrower
Obligations, the Holding Company Obligations or the General Partner Pledgor
Obligations are then due and whether or not an Event of Default has occurred.
The within designation and grant of power of attorney is coupled with an
interest, is irrevocable until the lien created by this Pledge Agreement is
terminated by a written instrument executed by a duly authorized officer of
Agent. The power of attorney shall not be affected by subsequent disability or
incapacity of the Borrower, the Holding Company or any General Partner Pledgor.
Agent shall not be liable for any act or omission to act pursuant to this
Section 9, except for any act or omission to act which is in actual bad faith.
10. Remedies.
(a) If an Event of Default shall have occurred and be continuing,
Agent may exercise, in addition to all other rights and remedies granted
in this Pledge Agreement and in any other instrument or agreement
securing, evidencing or relating to the Borrower Obligations, the Holding
Company Obligations or the General Partner Pledgor Obligations, all rights
and remedies of a secured party under the UCC. Without limiting the
generality of the foregoing, Agent, if an Event of Default shall have
occurred and be continuing, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Borrower, the
Holding Company, the General Partner Pledgors or any other person or
entity (all and each of which demands, presentments, protests,
advertisements or notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Borrower
Collateral, the Holding Company Collateral and the General Partner Pledgor
Collateral, or any part thereof, and/or may forthwith sell, assign, give
option or options to purchase or otherwise dispose of and deliver the
Borrower Collateral, the Holding Company Collateral and the General
Partner Pledgor Collateral or any part thereof (or contract to do any of
the foregoing), in one or more parcels at public or private sale or sales,
in the over-the- counter market, at any exchange, broker's board or office
of Agent or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. Agent shall
have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Borrower Collateral, the Holding Company
Collateral or the General Partner Pledgor Collateral so sold, free of any
right or equity of redemption in the Borrower, the Holding Company or the
General Partner Pledgors, which right or equity is hereby waived or
released. Agent shall apply any Borrower Proceeds, Holding Company
Proceeds or General Partner Pledgor Proceeds from time to time held by it
and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs
and expenses of every kind incurred therein or incidental to the care or
safekeeping of any of the Borrower Collateral, the Holding Company
Collateral or General Partner Pledgor Collateral or in any way relating to
the Borrower Collateral, the Holding Company Collateral or the General
Partner Pledgor Collateral or the rights of Agent hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the
payment in whole or in part of the Borrower Obligations, the Holding
Company Obligations or the General Partner Pledgor Obligations (as the
case may be), in such order as Agent may elect, and only after such
application and after the payment by Agent of any other amount required by
any provision of law, including, without limitation, Section 9-615(a) of
the UCC, need Agent account for
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the surplus, if any, to the Borrower, the Holding Company and the General
Partner Pledgors. To the extent permitted by applicable law, the Borrower,
the Holding Company and each General Partner Pledgor waive all claims,
damages and demands any of them may acquire against Agent arising out of
the exercise by Agent of any of its rights hereunder, except for any
claims, damages and demands any of them may have against Agent arising
from the gross negligence or willful misconduct of Agent. If any notice of
a proposed sale or other disposition of Borrower Collateral, the Holding
Company Collateral or General Partner Pledgor Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. The Borrower and the
Holding Company shall remain liable for any deficiency if the proceeds of
any sale or other disposition of Borrower Collateral or the Holding
Company Collateral (as the case may be) are insufficient to pay the
Borrower Obligations or the Holding Company Obligations and the fees and
disbursements of any attorneys employed by Agent to collect such
deficiency.
(b) If any Event of Default occurs and is continuing, any deposits,
balances or other sums credited by or due from Agent, any affiliate of
Agent or FleetBoston Financial Corporation or any of the Lenders, or from
any affiliate of any of the Lenders, to the Borrower or the Holding
Company may to the fullest extent not prohibited by applicable law at any
time or from time to time, without regard to the existence, sufficiency or
adequacy of any other collateral, and without notice or compliance with
any other condition precedent now or hereafter imposed by statute, rule of
law or otherwise, all of which are hereby waived to the fullest extent
permitted by law, be set off, appropriated and applied by Agent against
any or all of the Borrower Obligations or the Holding Company Obligations
irrespective of whether demand shall have been made, in such manner as
Agent in its sole and absolute discretion may determine. Within three (3)
Business Days of making any such set off, appropriation or application,
Agent agrees to notify Borrower or the Holding Company thereof, provided
the failure to give such notice shall not affect the validity of such set
off or appropriation or application. ANY AND ALL RIGHTS TO REQUIRE AGENT
OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO
ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT
OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER OR THE HOLDING COMPANY, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
11. Private Sales.
(a) The Borrower, the Holding Company and each General Partner
Pledgor recognize that Agent may be unable to effect a public sale of any
or all the Borrower Pledged Interests, the Holding Company Pledged
Interests or the General Partner Pledgor Pledged Interests, by reason of
certain prohibitions contained in the Securities Act of 1933, as amended,
and applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which 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. The Borrower, the Holding Company
and each General Partner Pledgor acknowledge and agree that any such
private sale may result in prices and other terms less favorable to Agent
than if such sale were a public sale. Agent shall be under no obligation
to delay a sale of any of the Borrower Pledged Interests, the Holding
Company Pledged Interests or General Partner Pledgor Pledged Interests for
the period of time necessary to permit the Borrower, the Holding Company
or the General Partner Pledgors to register such securities for public
sale under the Securities Act of 1933, as amended, or under applicable
state securities laws, even if the Borrower, the Holding Company or the
General Partner Pledgors would agree to do so.
-18-
(b) The Borrower, the Holding Company and each General Partner
Pledgor further agree to use their best efforts to do or cause to be done
all such other acts as may be necessary to make any sale or sales of all
or any portion of the Borrower Pledged Interests, the Holding Company
Pledged Interests or the General Partner Pledgor Pledged Interests
pursuant to this paragraph 11 valid and binding and in compliance with any
and all other applicable requirements of law; provided, however, that
neither the Borrower nor the Holding Company nor any General Partner
Pledgor shall be under any obligation to register the Borrower Pledged
Interests, the Holding Company Pledged Interests or the General Partner
Pledgor Pledged Interests for public sale under the Securities Act of
1933, as amended, or under applicable state securities laws. The Borrower,
the Holding Company and each General Partner Pledgor further agree that a
breach of any of the covenants contained in this paragraph 11 will cause
irreparable injury to Agent, that Agent has no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this paragraph 11 shall be specifically enforceable against
the Borrower, the Holding Company and each General Partner Pledgor, and
the Borrower, the Holding Company and each General Partner Pledgor hereby
waive and agree not to assert any defenses against an action for specific
performance of such covenants except for a defense that no default has
occurred with respect to the Borrower Obligations, the Holding Company
Obligations or the General Partner Pledgor Obligations.
12. Limitation on Duties Regarding Collateral. Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Borrower
Collateral, the Holding Company Collateral and General Partner Pledgor
Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall
be to deal with it in the same manner as Agent deals with similar securities and
property for its own account. Neither Agent nor any of its directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Borrower Collateral, the Holding Company Collateral or the
General Partner Pledgor Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Borrower Collateral,
the Holding Company Collateral or General Partner Pledgor Collateral upon the
request of the Borrower, the Holding Company, any General Partner Pledgor or
otherwise.
13. Financing Statements; Other Documents. The Borrower, the Holding
Company and each General Partner Pledgor shall deliver to Agent UCC-1 financing
statements with respect to the Borrower Collateral, the Holding Company
Collateral and the General Partner Pledgor Collateral, duly executed by the
Borrower, the Holding Company and each General Partner Pledgor suitable for
filing in such jurisdictions as Agent shall reasonably request. The Borrower,
the Holding Company and each General Partner Pledgor agree to deliver any other
document or instrument which Agent may reasonably request in connection with the
administration and enforcement of this Pledge Agreement or with respect to the
Borrower Collateral, the Holding Company Collateral and General Partner Pledgor
Collateral for the purposes of obtaining or preserving the full benefits of this
Pledge Agreement and of the rights and powers herein granted.
14. Powers Coupled with an Interest. All authorizations and agencies and
powers herein contained with respect to the Borrower Collateral, the Holding
Company Collateral and the General Partner Pledgor Collateral are irrevocable
and coupled with an interest.
15. Security Interest Absolute. All rights of the Agent hereunder, the
grant of a security interest in the Borrower Collateral, the Holding Company
Collateral and the General Partner Pledgor Collateral and all obligations of the
Borrower, the Holding Company and the General Partner Pledgors hereunder, shall
be absolute and unconditional irrespective of (i) any lack of validity or
enforceability of the Loan Agreement, any agreement with respect to any of the
Borrower Obligations, the Holding Company Obligations, the General Partner
Pledgor Obligations or any other agreement or instrument relating to any of the
foregoing, (ii) any change in time, manner or place
-19-
of payment of, or in any other term of, all or any of the Borrower Obligations,
the Holding Company Obligations or the General Partner Pledgor Obligations, or
any other amendment or waiver of or any consent to any departure from the Note
or any other agreement or instrument, (iii) any exchange, release or
non-perfection of any other collateral, or any release or amendment or waiver of
or consent to or departure from any guarantee, for all or any of the Borrower
Obligations, the Holding Company Obligations or General Partner Pledgor
Obligations, or (iv) any other circumstance which might otherwise constitute a
defense available to (other than the defense of indefeasible payment), or a
discharge of, the Borrower, the Holding Company or the General Partner Pledgors
in respect of the Borrower Obligations, the Holding Company Obligations or the
General Partner Pledgor Obligations or in respect of this Pledge Agreement.
16. Fees and Expenses. To the extent provided in the Loan Agreement and
the Guaranty, the Borrower, the Holding Company and the General Partner Pledgors
shall be obligated to, upon demand, pay to the Agent the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel
and of any experts or agents which the Agent or any Lender may incur in
connection with (i) the sale of, collection from, or other realization upon, any
of the Borrower Collateral, the Holding Company Collateral or the General
Partner Pledgor Collateral, or (ii) during the continuance of an Event of
Default, the exercise or enforcement of any of the rights of the Agent
hereunder. Any such amounts payable as provided hereunder or thereunder shall be
additional obligations secured hereby and by the other Security Documents.
17. Termination. Upon the payment in full of the Borrower Obligations, the
Holding Company Obligations or the General Partner Pledgor Obligations, in
immediately available funds, including, without limitation, all unreimbursed
costs and expenses of the Agent and of each Lender for which the Borrower, the
Holding Company or the General Partner Pledgors are responsible, the Agent shall
release the Borrower Collateral, the Holding Company Collateral or the General
Partner Pledgor Collateral (as the case may be) granted to the Agent as provided
for herein. However, such release by the Agent shall not be deemed to terminate
or release the Borrower, the Holding Company or any General Partner Pledgor from
any obligation or liability under this Pledge Agreement which specifically by
its terms survives the payment in full of the Borrower Obligations, the Holding
Company Obligations or the General Partner Pledgor Obligations.
18. Severability. Any provision of this Pledge 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.
19. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction, or be taken into consideration in interpreting, this Pledge
Agreement.
20. No Waiver; Cumulative Remedies. Agent shall not by any act delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of Agent, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
-20-
21. Waivers and Amendments; Successors and Assigns; Governing Law; Venue.
None of the terms or provisions of this Pledge Agreement may be waived, amended,
or otherwise modified except by a written instrument executed by the party
against which enforcement of such waiver, amendment, or modification is sought.
This Pledge Agreement shall be binding upon the Borrower, the Holding Company,
each General Partner Pledgor and Agent, and the successors and assigns of each,
and shall inure to the benefit of Agent and the Lenders and their successors and
assigns and to the benefit of the Borrower, the Holding Company and each General
Partner Pledgor and the Borrower's, the Holding Company's, and each General
Partnership Pledgor's successors and permitted assigns; provided that neither
the Borrower nor the Holding Company nor any General Partner Pledgor shall have
any right to (i) assign this Pledge Agreement or any interest herein, or (ii)
assign any interest in the Borrower Collateral, the Holding Company Collateral
or the General Partner Pledgor Collateral or any part thereof, or otherwise
pledge, encumber or grant any option with respect to the Borrower Collateral,
the Holding Company Collateral or the General Partner Pledgor Collateral or any
part thereof, or any cash or property held by the Borrower, the Holding Company
or the General Partner Pledgors as Borrower Collateral, Holding Company
Collateral or General Partner Pledgor Collateral under this Pledge Agreement if
any such assignment, pledge, encumbrance or grant would constitute a violation
of the Loan Agreement. The rights of Agent under this Pledge Agreement shall
automatically be transferred to any transferee to which Agent transfers the Note
and the Loan Agreement pursuant to the terms thereof. The construction,
interpretation, validity, enforceability and effect of all provisions of this
Pledge Agreement including, but not limited to, the payment of the Borrower
Obligations, the Holding Company Obligations and the General Partner Pledgor
Obligations and the legality of the interest rate and other charges shall be
construed and enforced in accordance with the internal laws of The Commonwealth
of Massachusetts (without regard to conflicts of laws). The Borrower, the
Holding Company and each General Partner Pledgor agrees to submit to
non-exclusive personal jurisdiction in Suffolk County, in The Commonwealth of
Massachusetts in any action or proceeding arising out of this Pledge Agreement
and, in furtherance of such agreement, the Borrower, the Holding Company and
each General Partner Pledgor hereby agree and consent that, without limiting
other methods of obtaining jurisdiction, personal jurisdiction over the
Borrower, the Holding Company or any General Partner Pledgor in any such action
or proceeding may be obtained within or without the jurisdiction of any court
located in The Commonwealth of Massachusetts and that any process or notice of
motion or other application to any such court in connection with any such action
or proceeding may be served upon the Borrower, the Holding Company and any
General Partner Pledgor by registered or certified mail to or by personal
service at the last known address of the Borrower, the Holding Company and such
General Partner Pledgor, whether such address be within or without the
jurisdiction of any such court.
22. Executive Offices.
(a) The Borrower shall not (i) change the location of its chief
executive offices or sole place of business from the location as of the
date hereof or remove its books and records from such location, or (ii)
change its name, identity or structure if, in either case, such change is
prohibited by the Loan Agreement.
(b) The Holding Company shall not (i) change the location of its
chief executive offices or sole place of business from the location as of
the date hereof or remove its books and records from such location, or
(ii) change its name, identity or structure if, in either case, such
change is prohibited by the Loan Agreement.
(c) No General Partner Pledgor shall (i) change the location of its
chief executive offices or sole place of business from the location as of
the date hereof or remove its books and records from such location, or
(ii) change its name, identity or structure if, in either case, such
change is prohibited by the Loan Agreement.
-21-
23. Notices. Notices by Agent to the Borrower, the Holding Company and the
General Partner Pledgors, to be effective, shall be in writing and shall be
hand-delivered or sent by Federal Express, or other reputable national overnight
courier service, or by postage pre-paid registered or certified mail, return
receipt requested, addressed to the Borrower, the Holding Company or the General
Partner Pledgors at their address set forth below their signatures hereto, with
a copy in each instance to Rosenman & Colin LLP at the address set forth in
Section 14.1 of the Loan Agreement, and shall be deemed to have been duly given
or made (a) when delivered if hand-delivered or sent by Federal Express, or
other reputable national overnight courier service, or (b) when delivered if
sent by registered or certified mail. Any communications by the Borrower, the
Holding Company or any General Partner Pledgor to Agent may be given in any
manner set forth in the immediately preceding sentence, with a copy to Xxxxxx &
Xxxxxxxxxx LLP, Attention: Xxxxxx X. Xxxxxxxxx, Esq., to the addresses set forth
in Section14.1 of the Loan Agreement.
24. Entire Understanding. Agent acknowledges that this Pledge Agreement,
the Note, the Guaranty and the other Loan Documents and Security Documents set
forth the entire agreement and understanding of Agent, the Borrower, the Holding
Company and the General Partner Pledgors with respect to the Loan and that no
oral or other agreements, understanding, representation or warranties exist with
respect to the Loan, other than those set forth in this Pledge Agreement, the
Note, the Guaranty and the other Loan Documents.
25. Counterpart Signatures. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
[SIGNATURE PAGES FOLLOW]
-22-
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to be
duly executed and delivered as of the date first above written.
BORROWER: THE XXXXXXX MASTER LIMITED PARTNERSHIP,
A Delaware limited partnership
By: MLP GP LLC, its General Partner
By: Xxxxxxx MLP Corp., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx, Senior Vice President
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
2. Principal Place of Business:
c/o First Winthrop Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
HOLDING COMPANY: XXXXXXX XX HOLDING LLC,
A Delaware limited liability company
By: MLP Manager Corp., its Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx, Senior Vice President
GENERAL PARTNER
PLEDGORS: Xxxxxxx 21 AT GP LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Xxxxxx GP LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Ateb GP LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Basot GP LLC
Xxxxxxx Bedcar GP LLC
Xxxxxxx Boford GP LLC
Xxxxxxx Calcraf GP LLC
Xxxxxxx Xxxxxxx GP LLC
Xxxxxxx Crostex GP LLC
Xxxxxxx Croydon GP LLC
Xxxxxxx Dautec GP LLC
Xxxxxxx Denport GP LLC
-00-
Xxxxxxx Xxxxxxxx XX LLC
Xxxxxxx Feddata GP LLC
Xxxxxxx Xxxxxxx GP LLC
Xxxxxxx Gersant GP LLC
Xxxxxxx Hazelport GP LLC
Xxxxxxx Xxxxxxx Street GP LLC
Xxxxxxx Jaclane GP LLC
Xxxxxxx Jacway GP LLC
Xxxxxxx Johab GP LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Lanmar GP LLC
Xxxxxxx Larloosa GP LLC
Xxxxxxx Xxxxxx XX LLC
Xxxxxxx Liroc GP LLC
Xxxxxxx Marbax GP LLC
Xxxxxxx Martall GP LLC
Xxxxxxx Mesa GP LLC
Xxxxxxx Midlem GP LLC
Xxxxxxx Xxxxxx XX LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Xxxxx GP LLC
Xxxxxxx Pinmar GP LLC
Xxxxxxx Pinole GP LLC
Xxxxxxx Porto GP LLC
Xxxxxxx Renlake GP LLC
Xxxxxxx Sandnord GP LLC
Xxxxxxx Santex GP LLC
Xxxxxxx Segair GP LLC
Xxxxxxx Xxxxxxx GP LLC
Xxxxxxx Silward GP LLC
Xxxxxxx Skoob GP LLC
Xxxxxxx Spokmont GP LLC
Xxxxxxx Vegpow GP LLC
Xxxxxxx Vegrouge GP LLC
Xxxxxxx Walando GP LLC
Xxxxxxx Walmad GP LLC
Xxxxxxx Walstaff GP LLC
Xxxxxxx Washtex GP LLC
Each, a Delaware limited liability company
By: MLP Manager Corp., their Manager
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx, Senior Vice President
-24-
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
2. Principal Place of Business:
c/o First Winthrop Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
AGENT: FLEET NATIONAL BANK,
A national banking association
By: /s/ Xxxxx X. Xxx
-----------------------------------
Xxxxx X. Xxx
duly authorized
-25-
SCHEDULE 1
To Pledge
Agreement
GENERAL PARTNER PLEDGORS
1. Xxxxxxx 21 AT GP LLC
2. Xxxxxxx Xxxxx GP LLC
3. Xxxxxxx Xxxxxx GP LLC
4. Xxxxxxx Xxxxx GP LLC
5. Xxxxxxx Ateb GP LLC
6. Xxxxxxx Xxxxx GP LLC
7. Xxxxxxx Basot GP LLC
8. Xxxxxxx Bedcar GP LLC
9. Xxxxxxx Boford GP LLC
10. Xxxxxxx Calcraf GP LLC
11. Xxxxxxx Xxxxxxx GP LLC
12. Xxxxxxx Crostex GP LLC
13. Xxxxxxx Croydon GP LLC
14. Xxxxxxx Dautec GP LLC
15. Xxxxxxx Denport GP LLC
16. Xxxxxxx Denville GP LLC
17. Xxxxxxx Feddata GP LLC
18. Xxxxxxx Xxxxxxx GP LLC
19. Xxxxxxx Gersant GP LLC
20. Xxxxxxx Hazelport GP LLC
21. Xxxxxxx Xxxxxxx Street GP LLC
22. Xxxxxxx Jaclane GP LLC
23. Xxxxxxx Jacway GP LLC
-26-
24. Xxxxxxx Johab GP LLC
25. Xxxxxxx Xxxxx GP LLC
26. Xxxxxxx Xxxxx GP LLC
27. Xxxxxxx Lanmar GP LLC
28. Xxxxxxx Larloosa GP LLC
29. Xxxxxxx Xxxxxx XX LLC
30. Xxxxxxx Liroc GP LLC
31. Xxxxxxx Marbax GP LLC
32. Xxxxxxx Martall GP LLC
33. Xxxxxxx Mesa GP LLC
34. Xxxxxxx Midlem GP LLC
35. Xxxxxxx Xxxxxx XX LLC
36. Xxxxxxx Xxxxx GP LLC
37. Xxxxxxx Xxxxx GP LLC
38. Xxxxxxx Pinmar GP LLC
39. Xxxxxxx Pinole GP LLC
40. Xxxxxxx Porto GP LLC
41. Xxxxxxx Renlake GP LLC
42. Xxxxxxx Sandnord GP LLC
43. Xxxxxxx Santex GP LLC
44. Xxxxxxx Segair GP LLC
45. Xxxxxxx Xxxxxxx GP LLC
46. Xxxxxxx Silward GP LLC
47. Xxxxxxx Skoob GP LLC
48. Xxxxxxx Spokmont GP LLC
49. Xxxxxxx Vegpow GP LLC
50. Xxxxxxx Vegrouge GP LLC
-27-
51. Xxxxxxx Walando GP LLC
52. Xxxxxxx Walmad GP LLC
53. Xxxxxxx Walstaff GP LLC
54. Xxxxxxx Washtex GP LLC
-28-
SCHEDULE 2
To Pledge
Agreement
PARTICIPATING LIMITED PARTNERSHIPS
1. Xxxxxxx 21 AT L.P.
General Partner Pledgor: Xxxxxxx 21 AT GP LLC
2. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
3. Xxxxxxx Xxxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxxx GP LLC
4. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
5. Xxxxxxx Ateb L.P.
General Partner Pledgor: Xxxxxxx Ateb GP LLC
6. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
7. Xxxxxxx Basot L.P.
General Partner Pledgor: Xxxxxxx Basot GP LLC
8. Xxxxxxx Bedcar L.P.
General Partner Pledgor: Xxxxxxx Bedcar GP LLC
9. Xxxxxxx Boford L.P.
General Partner Pledgor: Xxxxxxx Boford GP LLC
10. Xxxxxxx Xxxxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxxx GP LLC
11. Xxxxxxx Calcraf L.P.
General Partner Pledgor: Xxxxxxx Calcraf GP LLC
12. Xxxxxxx Crostex L.P.
General Partner Pledgor: Xxxxxxx Crostex GP LLC
13. Xxxxxxx Croydon L.P.
General Partner Pledgor: Xxxxxxx Croydon GP LLC
14. Xxxxxxx Dautec L.P.
General Partner Pledgor: Xxxxxxx Dautec GP LLC
15. Xxxxxxx Denport L.P.
General Partner Pledgor: Xxxxxxx Denport GP LLC
-29-
16. Xxxxxxx Denville L.P.
General Partner Pledgor: Xxxxxxx Denville GP LLC
17. Xxxxxxx Feddata L.P.
General Partner Pledgor: Xxxxxxx Feddata GP LLC
18. Xxxxxxx Xxxxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxxxx GP LLC
19. Xxxxxxx Gersant L.P.
General Partner Pledgor: Xxxxxxx Gersant GP LLC
20. Xxxxxxx Hazelport L.P.
General Partner Pledgor: Xxxxxxx Hazelport GP LLC
21. Xxxxxxx Xxxxxxx Street L.P.
General Partner Pledgor: Xxxxxxx Xxxxxxx Street GP LLC
22. Xxxxxxx Jaclane L.P.
General Partner Pledgor: Xxxxxxx Jaclane GP LLC
23. Xxxxxxx Jacway L.P.
General Partner Pledgor: Xxxxxxx Jacway GP LLC
24. Xxxxxxx Johab L.P.
General Partner Pledgor: Xxxxxxx Johab GP LLC
25. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
26. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
27. Xxxxxxx Lanmar L.P.
General Partner Pledgor: Xxxxxxx Lanmar GP LLC
28. Xxxxxxx Larloosa L.P.
General Partner Pledgor: Xxxxxxx Larloosa GP LLC
29. Xxxxxxx Leyden L.P.
General Partner Pledgor: Xxxxxxx Xxxxxx XX LLC
30. Xxxxxxx Liroc L.P.
General Partner Pledgor: Xxxxxxx Liroc GP LLC
31. Xxxxxxx Marbax L.P.
General Partner Pledgor: Xxxxxxx Marbax GP LLC
32. Xxxxxxx Martall L.P.
General Partner Pledgor: Xxxxxxx Martall GP LLC
33. Xxxxxxx Mesa L.P.
General Partner Pledgor: Xxxxxxx Mesa GP LLC
-30-
34. Xxxxxxx Midlem L.P.
General Partner Pledgor: Xxxxxxx Midlem GP LLC
35. Xxxxxxx Montal L.P.
General Partner Pledgor: Xxxxxxx Xxxxxx XX LLC
36. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
37. Xxxxxxx Xxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxx GP LLC
38. Xxxxxxx Pinmar L.P.
General Partner Pledgor: Xxxxxxx Pinmar GP LLC
39. Xxxxxxx Pinole L.P.
General Partner Pledgor: Xxxxxxx Pinole GP LLC
40. Xxxxxxx Porto L.P.
General Partner Pledgor: Xxxxxxx Porto GP LLC
41. Xxxxxxx Renlake L.P.
General Partner Pledgor: Xxxxxxx Renlake GP LLC
42. Xxxxxxx Sandnord L.P.
General Partner Pledgor: Xxxxxxx Sandnord GP LLC
43. Xxxxxxx Santex L.P.
General Partner Pledgor: Xxxxxxx Santex GP LLC
44. Xxxxxxx Segair L.P.
General Partner Pledgor: Xxxxxxx Segair GP LLC
45. Xxxxxxx Xxxxxxx L.P.
General Partner Pledgor: Xxxxxxx Xxxxxxx GP LLC
46. Xxxxxxx Silward L.P.
General Partner Pledgor: Xxxxxxx Silward GP LLC
47. Xxxxxxx Skoob L.P.
General Partner Pledgor: Xxxxxxx Skoob GP LLC
48. Xxxxxxx Spokmont L.P.
General Partner Pledgor: Xxxxxxx Spokmont GP LLC
49. Xxxxxxx Vegpow L.P.
General Partner Pledgor: Xxxxxxx Vegpow GP LLC
50. Xxxxxxx Vegrouge L.P.
General Partner Pledgor: Xxxxxxx Vegrouge GP LLC
51. Xxxxxxx Walando L.P.
General Partner Pledgor: Xxxxxxx Walando GP LLC
-31-
52. Xxxxxxx Walmad L.P.
General Partner Pledgor: Xxxxxxx Walmad GP LLC
53. Xxxxxxx Walstaff L.P.
General Partner Pledgor: Xxxxxxx Walstaff GP LLC
54. Xxxxxxx Washtex L.P.
General Partner Pledgor: Xxxxxxx Washtex GP LLC
-32-
SCHEDULE 3
To Pledge
Agreement
Issuer of Series of Percentage
Holder of Pledged Pledged Type of Membership of
Interests Interest Interest Interest Issued
Interests
The Xxxxxxx Master Xxxxxxx XX Membership Series 21 AT 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Alake 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Albeau 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Allia 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Ateb 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Avrem 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Basot 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Bedcar 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Boford 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Calcraf 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Carlane 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Crostex 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Croydon 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Dautec 100.0%
Limited Partnership Holding LLC
-33-
The Xxxxxxx Master Xxxxxxx XX Membership Series Denport 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Denville 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Feddata 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Flamont 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Gersant 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Hazelport 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Xxxxxxx 100.0%
Limited Partnership Holding LLC Street
The Xxxxxxx Master Xxxxxxx XX Membership Series Jaclane 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Jacway 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Johab 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Kalan 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Lando 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Lanmar 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Larloosa 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Leyden 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Liroc 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Marbax 100.0%
Limited Partnership Holding LLC
-34-
The Xxxxxxx Master Xxxxxxx XX Membership Series Martall 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Mesa 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Midlem 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Montal 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Nevit 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Newal 100.0%
Limited Partnership Holding LLC
The Xxxxxxx Master Xxxxxxx XX Membership Series Pinmar 100.0%
Limited Partnership Holding LLC
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The Xxxxxxx Master Xxxxxxx XX Membership Series Porto 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Renlake 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Sandnord 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Santex 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Segair 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Xxxxxxx 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Silward 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Skoob 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Spokmont 100.0%
Limited Partnership Holding LLC
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The Xxxxxxx Master Xxxxxxx XX Membership Series Vegpow 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Vegrouge 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Walando 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Walstaff 100.0%
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The Xxxxxxx Master Xxxxxxx XX Membership Series Washtex 100.0%
Limited Partnership Holding LLC
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