EXHIBIT 10.3
EXECUTION COPY
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of July 29, 2002 and amended and restated
as of June 25, 2003 (as so amended and restated and as the same may be further
amended, restated and/or supplemented or otherwise modified from time to time,
this "Agreement"), made by each of the undersigned pledgors (each, a "Pledgor"
and, together with any other entity that becomes a pledgor hereunder pursuant to
Section5 30 hereof, the "Pledgors") to JPMorgan Chase Bank, as Collateral Agent
(together with any successor Collateral Agent, the "Pledgee"), for the benefit
of the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
WITNESSETH:
WHEREAS, Domino's, Inc., a Delaware corporation ("Borrower"), TISM,
Inc., a Michigan corporation, the Lenders from time to time party thereto, X.X.
Xxxxxx Securities Inc. and Citigroup Global Markets Inc., as joint lead
arrangers (in such capacity, the "Joint Lead Arrangers"), JPMorgan Chase Bank,
as administrative agent for Lenders (in such capacity and together with any
successor administrative agent, "Administrative Agent"), Citicorp North America,
Inc., as syndication agent (in such capacity and together with any successor
syndication agent, the "Syndication Agent"), and Bank One, NA, as documentation
agent (in such capacity and together with any successor documentation agent, the
"Documentation Agent"), have entered into a Credit Agreement, dated as of July
29, 2002 and amended and restated as of June 25, 2003 (as so amended and
restated and as the same may be further amended, restated, supplemented and/or
otherwise modified from time to time, the "Credit Agreement"), providing for the
making of Loans to Borrower, and the issuance of Letters of Credit for the
account of Borrower, in each case as contemplated therein (the Lenders, the
Joint Lead Arrangers, the Administrative Agent, the Documentation Agent, the
Syndication Agent, each Issuing Lender, the Collateral Agent and the Pledgee are
herein called the "Lender Creditors");
WHEREAS, Borrower or any Subsidiary thereof may at any time and from
time to time enter into or maintain one or more Interest Rate Agreements and
Currency Agreements (collectively, together with the Existing Swap Agreements in
effect at any time, the "Secured Hedging Agreements") with one or more Lenders
or any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with each financial institution party to an Existing Swap
Agreement at any time and each such Lender's, affiliate's or other financial
institutions' successors and assigns, are herein called the "Other Creditors,"
and, together with the Lender Creditors, are herein called the "Secured
Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Pledgor that is a
party thereto has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Obligations as described in the Subsidiaries Guaranty;
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
unconditionally guaranteed to the Guaranteed Creditors the payment when due of
all Guaranteed Obligations as described therein;
WHEREAS, the Pledgors have heretofore entered into a Pledge Agreement,
dated as of July 29, 2002 (as amended, supplemented or otherwise modified to but
not including the date hereof, the "Original Pledge Agreement");
WHEREAS, it is a condition precedent to the making and continuation of
Loans and the issuance of Letters of Credit under the Credit Agreement and the
maintaining of Secured Hedge Agreements that each Pledgor shall have executed
and delivered to the Pledgee this Agreement;
WHEREAS, each Pledgor desires to execute this Agreement to satisfy the
conditions described in the preceding paragraph and to amend and restate the
Original Pledge Agreement in the form of this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence and
continuation of Loans by, and the issuance of, and participation in, Letters of
Credit under the Credit Agreement and the entering into and maintaining of
Secured Hedging Agreements and, accordingly, each Pledgor desires to enter into
this Agreement in order to satisfy the condition described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the commencement
of any case, proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Pledgor or any Subsidiary thereof at
the rate provided for in the respective documentation, whether or not a claim
for post-petition interest is allowed in any such proceeding), reimbursement
obligations under Letters of Credit, fees, costs and indemnities) of such
Pledgor to the Lender Creditors, whether now existing or hereafter incurred
under, arising out of, or in connection with, the Loan Documents to which such
Pledgor is a party (including, in the case of each Pledgor that is a Guarantor,
all such obligations, liabilities and indebtedness of such Pledgor under the
Guaranty to which it is a party) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in such Loan
Documents (all such obligations, liabilities and indebtedness under this clause
(i), except to the extent consisting of obligations, liabilities or indebtedness
with respect
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to Secured Hedging Agreements entitled to the benefits of this Agreement, being
herein collectively called the "Loan Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency, reorganization or similar proceeding of any Pledgor at the rate
provided for in the respective documentation, whether or not a claim for
post-petition interest is allowed in any such proceeding), owing by such Pledgor
to the Other Creditors under, or with respect to (including, in the case of each
Pledgor that is a Guarantor, all such obligations, liabilities and indebtedness
of such Pledgor under its Guaranty), any Secured Hedging Agreement entitled to
the benefits of this Agreement, whether such Secured Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained therein (all
such obligations, liabilities and indebtedness described in this clause (ii)
being herein collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest in the
Collateral;
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of such Pledgor referred to in
clauses (i) and (ii) above, after an Event of Default (which term as used herein
shall mean any Event of Default under, and as defined in, the Credit Agreement
or any payment default upon the expiration of any applicable grace period by
Borrower under any Secured Hedging Agreement) shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the Collateral, or of
any exercise by the Pledgee of its rights hereunder, together with reasonable
attorneys' fees and court costs;
(v) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 11 of this Agreement; and
(vi) all amounts owing to any Agent or any of its affiliates pursuant
to any of the Loan Documents in its capacity as such;
all such indebtedness, obligations, liabilities, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 being herein collectively called the
"Obligations", it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
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(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the recitals
hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1)
of the UCC.
"Agreement" has the meaning set forth in the first paragraph hereof.
"Borrower" shall have the meaning provided in the recitals hereto.
"Certificated Security" has the meaning given such term in Section
8-102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 22 hereof.
"Clearing Corporation" has the meaning given such term in Section
8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Credit Agreement" has the meaning set forth in the recitals hereto.
"Domestic Corporation" has the meaning set forth in the definition of
"Stock".
"Event of Default" has the meaning set forth in Section 1 hereof.
"Excluded Foreign Entity" means, at any time, any corporation,
partnership (general or limited), limited liability company or other business
entity (x) that is organized under the laws of any country, state or province
other than the United States, Canada, Bermuda or any state, province or
territory thereof and (y) the book value of the consolidated gross assets of
which do not exceed $1,000,000 at such time.
"Financial Asset" has the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the definition of
"Stock".
"Indemnitees" has the meaning set forth in Section 11 hereof.
"Instrument" has the meaning given such term in Section 9-102(a)(47)
of the UCC.
"Investment Property" has the meaning given such term in Section
9-102(a)(49) of the UCC.
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"Lender Creditors" has the meaning set forth in the recitals hereto.
"Lenders" has the meaning set forth in the recitals hereto.
"Limited Liability Company Assets" means all assets, whether tangible
or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company (other than an Excluded Foreign Entity); provided that
the term "Limited Liability Company Interest" shall not include any limited
liability company membership interest in any limited liability company that is
not a Subsidiary of any Pledgor to the extent (and only for so long as) the
limited liability company agreement or operating agreement for such limited
liability company or applicable law prohibits the assignment of, or granting of
a security interest in, the limited liability company membership interests of
such limited liability company and such prohibitions are not rendered invalid by
Section 9-406 or Section 9-408 of the UCC, it being understood and agreed,
however, any such excluded limited liability company membership interest shall
otherwise be subject to the security interests created by this Agreement (and
shall become a "Limited Liability Company Interest" for all purposes of this
Agreement) upon the receipt by the respective Pledgor of any necessary approvals
or waivers permitting the assignment thereof or the granting of a security
interest therein.
"Loan Document Obligations" has the meaning set forth in Section 1
hereof.
"Location" of any Pledgor has the meaning given such term in Section
9-307 of the UCC.
"Non-Voting Stock" means all capital stock of any Foreign Subsidiary
which is not Voting Stock.
"Notes" means (x) all intercompany notes at any time issued to each
Pledgor and (y) all other promissory notes from time to time issued to, or held
by, each Pledgor.
"Obligations" has the meaning set forth in Section 1 hereof.
"Original Pledge Agreement" has the meaning set forth in the recitals
hereto.
"Other Creditors" has the meaning set forth in the recitals hereto.
"Other Obligations" has the meaning set forth in Section 1 hereof.
"Partnership Assets" means all assets, whether tangible or intangible
and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
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"Partnership Interest" means the entire general partnership interest
or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership (other than Excluded Foreign Entities);
provided that the term "Partnership Interest" shall not include any partnership
interest (general or limited) in any partnership that is not a Subsidiary of any
Pledgor to the extent (and only for so long as) the partnership agreement for
such partnership or applicable law prohibits the assignment of, or granting of a
security interest in, the partnership interests of such partnership and such
prohibitions are not rendered invalid by Section 9-406 or Section 9-408 of the
UCC, it being understood and agreed, however, any such excluded partnership
interest shall otherwise be subject to the security interests created by this
Agreement (and shall become a "Partnership Interest" for all purposes of this
Agreement) upon the receipt by the respective Pledgor of any necessary approvals
or waivers permitting the assignment thereof or the granting of a security
interest therein.
"Pledged Notes" means all Notes at any time pledged or required to be
pledged hereunder.
"Pledgee" has the meaning set forth in the first paragraph hereof.
"Pledgor" has the meaning set forth in the first paragraph hereof.
"Proceeds" has the meaning given such term in Section 9-102(a)(64) of
the UCC.
"Registered Organization" has the meaning given such term in Section
9-102(a)(70) of the UCC.
"Requisite Creditors" has the meaning set forth in Section 22 hereof.
"Requisite Lenders" has the meaning given such term in the Credit
Agreement.
"Secured Creditors" has the meaning set forth in the recitals hereto.
"Secured Debt Agreements" has the meaning set forth in Section 5
hereof.
"Secured Hedging Agreement" shall have the meaning provided in the
recitals of this Agreement.
"Securities Account" has the meaning given such term in Section
8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in
effect from time to time.
"Security" and "Securities" has the meaning given such term in Section
8-102(a)(15) of the UCC and shall in any event also include all Stock and all
Notes but excludes Securities (as defined above) issued by Excluded Foreign
Entities and the Excluded Special Purpose Subsidiary.
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"Security Entitlement" has the meaning given such term in Section
8-102(a)(17) of the UCC.
"Specified Collateral Event" has the meaning provided in the Security
Agreement.
"Stock" means (x) with respect to corporations incorporated under the
laws of the United States or any State or territory thereof or the District of
Columbia (other than the Excluded Special Purpose Subsidiary) (each, a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
Domestic Corporation at any time owned by any Pledgor and (y) with respect to
corporations not Domestic Corporations (each, a "Foreign Corporation"), all of
the issued and outstanding shares of capital stock of any Foreign Corporation at
any time owned by any Pledgor .
"Termination Date" has the meaning set forth in Section 20 hereof.
"Transmitting Utility" has the meaning given such term in Section
9-102(a)(80) of the UCC.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time; provided that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any
Foreign Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be
performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing security interest (subject to those Liens permitted to exist with
respect to the Collateral pursuant to the terms of all Secured Debt Agreements
then in effect) in favor of the Pledgee for the benefit of the Secured Creditors
in, all of the right, title and interest in and to the following, whether now
existing or hereafter from time to time acquired (collectively, the
"Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security Agreement),
including any and all assets of whatever type or kind deposited by such
Pledgor in any such Collateral Account, whether now owned or hereafter
acquired, existing or arising, including, without limitation, all Financial
Assets, Investment Property, monies, checks, drafts, Instruments,
Securities or interests therein of any type or nature deposited or required
by the Credit Agreement or any other Secured Debt Agreement to be deposited
in such Collateral Account, and all investments and all certificates and
other Instruments (including depository receipts, if
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any) from time to time representing or evidencing the same, and all
dividends, interest, distributions, cash and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing;
(b) all Securities owned or held by such Pledgor from time to time
and all options and warrants owned by such Pledgor from time to time to
purchase Securities;
(c) all Limited Liability Company Interests owned by such Pledgor
from time to time and all of its right, title and interest in each limited
liability company to which each such Limited Liability Company Interest
relates, whether now existing or hereafter acquired, including, without
limitation, to the fullest extent permitted under the terms and provisions
of the documents and agreements governing such Limited Liability Company
Interests and applicable law:
(A) all its capital therein and its interest in all profits,
income, surplus, losses, Limited Liability Company Assets and other
distributions to which such Pledgor shall at any time be entitled in
respect of such Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for monies loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any such limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of any of such Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
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(F) all other property hereafter delivered in substitution
for or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(d) all Partnership Interests owned by such Pledgor from time to time
and all of its right, title and interest in each partnership to which each
such Partnership Interest relates, whether now existing or hereafter
acquired, including, without limitation, to the fullest extent permitted
under the terms and provisions of the documents and agreements governing
such Partnership Interests and applicable law:
(A) all its capital therein and its interest in all profits,
income, surpluses, losses, Partnership Assets and other distributions
to which such Pledgor shall at any time be entitled in respect of such
Partnership Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for monies loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other
action on behalf of and in the name of such Pledgor in respect of such
Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing (with all of the
foregoing rights only to be exercisable upon the occurrence and during
the continuation of an Event of Default); and
(F) all other property hereafter delivered in substitution
for or in addition to any of the foregoing, all certificates and
instruments representing or evi-
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dencing such other property and all cash, securities, interest,
dividends, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof;
(e) all Financial Assets and Investment Property owned by such
Pledgor from time to time;
(f) all Security Entitlements owned by such Pledgor from time to time
in any and all of the foregoing; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this Section 3.1
or in Section 3.3 hereof, (x) except as otherwise provided in subsection 6.11 of
the Credit Agreement, no Pledgor (to the extent that it is a Domestic Subsidiary
of Holdings) shall be required at any time to pledge hereunder (and the
Collateral of such Pledgor shall not include) more than 65% of the Voting Stock
of any Foreign Corporation and (y) so long as it does not cause any materially
adverse tax consequences to Holdings or any of its Subsidiaries, each Pledgor
shall be required to pledge hereunder 100% of any Non-Voting Stock at any time
and from time to time acquired by such Pledgor of any Foreign Corporation.
3.2 Procedures. (a) To the extent that any Pledgor at any time or
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by such Pledgor) be pledged pursuant to Section 3.1 of this Agreement
and, in addition thereto, such Pledgor shall (to the extent provided below) take
the following actions as set forth below (as promptly as practicable and, in any
event, within 30 days after it obtains such Collateral) for the benefit of the
Pledgee and the other Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
such Pledgor shall physically deliver such Certificated Security to the
Pledgee, endorsed to the Pledgee or endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
upon the occurrence and continuation of a Specified Collateral Event or an
Event of Default and if requested by the Collateral Agent, such Pledgor
shall cause the issuer of such Uncertificated Security (or, in the case of
an issuer that is not a Subsidiary of such Pledgor, will use its best
efforts to cause such issuer) to duly authorize, execute and deliver to the
Pledgee an agreement for the benefit of the Pledgee and the other Secured
Creditors substantially in the form of Exhibit A hereto (appropriately
completed to the satisfaction of the Pledgee and with such modifications,
if any, as shall be satisfactory to the Pledgee) pursuant to which such
issuer agrees to comply with any and all instructions originated by the
Pledgee without further consent by the registered owner and not to comply
with instructions regarding such Uncertificated Security (and any
Partnership Interests and Limited Liability Company Interests issued by
such issuer) originated by any other Person other than a court of competent
jurisdiction; provided that Pledgee hereby agrees
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that it will not provide any instructions to any such issuer unless and
until an Event of Default has occurred and is continuing;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
such Pledgor shall notify the Pledgee thereof and shall take all actions
required (i) to comply with the applicable rules of such Clearing
Corporation and (ii) upon the occurrence and continuation of a Specified
Collateral Event or an Event of Default and if requested by the Collateral
Agent, to perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 9-314(a), (b) and (c), 9-106 and
8-106(d) of the UCC). Each such Pledgor further agrees to take such actions
as the Pledgee deems reasonably necessary or desirable to effect the
foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation), (1) if
such Partnership Interest or Limited Liability Company Interest is
represented by a certificate and is a Security for purposes of the UCC, the
procedure set forth in Section 3.2(a)(i) hereof, and (2) if such
Partnership Interest or Limited Liability Company Interest is not
represented by a certificate or is not a Security for purposes of the UCC,
the procedure set forth in Section 3.2(a)(ii) hereof;
(v) with respect to any Note (other than, to the extent no Event of
Default has occurred and is continuing, a Note that constitutes Chattel
Paper or any Note evidencing an aggregate amount of outstanding
Indebtedness less than $750,000 at any time), physical delivery of such
Note to the Pledgee, endorsed to the Pledgee or endorsed in blank; and
(vi) after an Event of Default has occurred and is continuing, with
respect to cash, to the extent not otherwise provided in the Security
Agreement, (i) establishment by the Pledgee of a cash account in the name
of such Pledgor over which the Pledgee shall have exclusive and absolute
control and dominion (and no withdrawals or transfers may be made therefrom
by any Person except with the prior written consent of the Pledgee) and
(ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to
preceding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of New York), upon the occurrence
and continuation of a Specified Collateral Event or an Event of Default,
such Pledgor shall take all actions as may be requested from time to time
by the Pledgee so that "control" of such Collateral is obtained and at all
times held by the Pledgee; and
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(ii) each Pledgor shall from time to time cause appropriate
financing statements (on appropriate forms) under the Uniform Commercial
Code as in effect in the various relevant States, in form satisfactory to
the Pledgee and covering all Collateral hereunder, to be filed in the
relevant filing offices so that at all times the Pledgee has a security
interest in all Investment Property and other Collateral which is perfected
by the filing of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the laws of the relevant
States, including, without limitation, Section 9-312(a) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire
(by purchase, stock dividend or otherwise) any additional Collateral at any time
or from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.1 hereof and,
furthermore, the Pledgor will thereafter take (or cause to be taken) all action
(as promptly as practicable and, in any event, within 30 days after it obtains
such Collateral) with respect to such Collateral in accordance with the
procedures set forth in Section 3.2 hereof, and will promptly thereafter deliver
to the Pledgee (i) a certificate executed by a senior financial officer of such
Pledgor describing such Collateral and certifying that the same has been duly
pledged in favor of the Pledgee (for the benefit of the Secured Creditors)
hereunder and (ii) supplements to Annexes B through G hereto as are necessary to
cause such annexes to be complete and accurate at such time.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 Certain Representations and Warranties Regarding the Collateral.
Each Pledgor represents and warrants that on the date hereof: (i) each
Subsidiary of such Pledgor, and the direct ownership thereof, is listed on Annex
B hereto; (ii) the Stock held by such Pledgor consists of the number and type of
shares of the stock of the corporations as described in Annex C hereto; (iii)
such Stock referenced in clause (ii) of this paragraph constitutes that
percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex C hereto; (iv) the Notes held by such
Pledgor consist of the promissory notes described in Annex D hereto where such
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex E hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (vii) the Partnership Interests held by such Pledgor consist of
the number and type of interests of the Persons described in Annex F hereto;
(viii) each such Partnership Interest referenced in clause (vii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex F hereto; (ix) the exact
address of each chief executive office of such Pledgor is listed on Annex G
hereto; (x) the Pledgor has complied with the respective procedure set forth in
Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes C through F hereto; and (xi) such Pledgor owns no other Securities,
Limited Liability Company Interests or Partnership Interests; provided, that in
respect to the representations and warranties set forth in clauses (iii), (vi)
and (viii) above, to the extent that such Stock, Limited Liability Company
Interest or
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Partnership Interest, as applicable, is an ownership interest in a Person other
than a Subsidiary or Affiliate of Holdings or any of its Subsidiaries, the
applicable Pledgor shall make the aforementioned representations and warranties
on the basis of its knowledge after using commercially reasonable efforts to
obtain the necessary information from such Person or its officers, employees or
agents.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the extent
necessary to enable the Pledgee to perfect its security interest in any of the
Collateral or to exercise any of its remedies hereunder, the Pledgee shall have
the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Collateral, which may be held (in the discretion of
the Pledgee) in the name of the relevant Pledgor, endorsed or assigned in blank
or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided, that, in each case, no vote shall be cast or any
consent, waiver or ratification given or any action taken or omitted to be taken
which would violate, result in breach of any covenant contained in, or be
inconsistent with any of the terms of this Agreement, the Credit Agreement, any
other Loan Document, any Secured Hedging Agreements entitled to the benefits of
this Agreement (collectively, the "Secured Debt Agreements"), or which would
have the effect of materially impairing the value of the Collateral or any part
thereof or the position or interests of the Pledgee or any other Secured
Creditor in the Collateral. All such rights of each Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default has
occurred and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash dividends other than as set
forth above) paid or distributed by way of dividend or otherwise in respect
of the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) paid or distributed in
respect of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) which may be paid in respect
of the Collateral by reason of any xxxxxxx-
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dation, merger, exchange of stock, conveyance of assets, liquidation or
similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
or Section 7 hereof shall be held for the benefit of the Pledgee, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
paid over to the Pledgee as Collateral in the same form as so received (with any
necessary endorsement).
7. REMEDIES IN CASE OF EVENT OF DEFAULT. Each Pledgor agrees that if
any Event of Default shall have occurred and be continuing, then and in every
such case, the Pledgee in addition to any rights now or hereafter existing under
applicable law, the other provisions of this Agreement or any other Loan
Document shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and, subject to provisions
of all applicable law, otherwise act with respect thereto as though it were
the outright owner thereof (each Pledgor hereby irrevocably constituting
and appointing the Pledgee the proxy and attorney-in-fact of such Pledgor,
with full power of substitution to do so);
(v) at any time and from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise purchase or
dispose (all of which are hereby waived by each Pledgor), for cash, on
credit or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price or prices and on such terms
as the Pledgee in its absolute discretion may determine, provided that at
least 10 days' written notice of the time and place of any such sale
shall be given to the respective Pledgor. The Pledgee shall not be
obligated
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to make any such sale of Collateral regardless of whether any such notice
of sale has theretofore been given. Each purchaser at any such sale shall
hold the property so sold absolutely free from any claim or right on the
part of each Pledgor, and each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security for
the Obligations or otherwise and all rights, if any, of stay and/or
appraisal which it now has or may at any time in the future have under rule
of law or statute now existing or hereafter enacted. At any such sale,
unless prohibited by applicable law, the Pledgee on behalf of the Secured
Creditors may bid for and purchase all or any part of the Collateral so
sold free, to the extent permitted by applicable law, from any such right
or equity of redemption. Neither the Pledgee nor any other Secured Creditor
shall be liable for failure to collect or realize upon any or all of the
Collateral or for any delay in so doing nor shall any of them be under any
obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations;
provided that, it being understood that each Pledgor's obligation to so deliver
the Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Pledgee shall be
entitled to a decree requiring specific performance by such Pledgor of said
obligation.
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and remedy
of the Pledgee or any other Secured Creditor provided for in this Agreement or
in any other Secured Debt Agreement, or now or hereafter existing at law or in
equity or by statute shall be cumulative and concurrent and shall be in addition
to every other such right, power or remedy. The exercise or beginning of the
exercise by the Pledgee or any other Secured Creditor of any one or more of the
rights, powers or remedies provided for in this Agreement or any other Secured
Debt Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
or any other Secured Creditor of all such other rights, powers or remedies, and
no failure or delay on the part of the Pledgee or any other Secured Creditor to
exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand. By
accepting the benefits of this Agreement and each other Collateral Document, the
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, acting upon the instructions of the Requisite Lenders (or, after
the date on which all Credit Agreement Obligations have been paid in full, the
holders of at least a majority of the Other Obligations) and that no other
Secured Creditor shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security to be granted hereby, it
being understood and agreed that such rights and remedies may be exercised by
the Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement and the other Loan Documents.
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9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in Section 7.4 of the
Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify, reimburse and hold harmless the Pledgee, each other Secured Creditor
and their respective successors, assigns, employees, agents, affiliates and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
and against any and all liabilities, obligations, damages, injuries, penalties,
claims, demands, actions, suits, judgments and losses of whatsoever kind or
nature, and (ii) to reimburse each Indemnitee for any and all reasonable costs,
expenses and disbursements, including reasonable attorneys' fees and expenses,
in each case growing out of or resulting from this Agreement or the exercise by
any Indemnitee of any right or remedy granted to it hereunder or under any other
Secured Debt Agreement (but excluding any liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and losses or
expenses to the extent incurred by reason of gross negligence, bad faith or
willful misconduct of such Indemnitee). In no event shall the Pledgee be liable,
in the absence of gross negligence, bad faith or willful misconduct on its part,
for any matter or thing in connection with this Agreement other than to account
for monies actually received by it in accordance with the terms hereof. If and
to the extent that the obligations of any Pledgor under this Section 11 are
unenforceable for any reason, such Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law. The indemnity obligations of each Pledgor
contained in this Section 11 shall continue in full force and effect
notwithstanding the full payment of all Notes issued under the Credit Agreement,
the termination of all Secured Hedging Agreements and Letters of Credit, and the
payment of all Obligations and notwithstanding the discharge thereof.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or as a partner in any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
Collateral consisting of a Limited Liability Company Interest or Partnership
Interest pursuant hereto, this
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Agreement shall not be construed as creating a partnership or joint venture
among the Pledgee, any other Secured Creditor, any Pledgor and/or any other
Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor, or any
limited liability company or partnership either before or after an Event of
Default shall have occurred. The Pledgee shall have only those powers set forth
herein and the Secured Parties shall assume none of the duties, obligations or
liabilities of a member of any limited liability company or as a partner of any
partnership or any Pledgor except as provided in the last sentence of paragraph
(a) of this Section 12.
(c) The Pledgee and the other Secured Parties shall not be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees to
execute and deliver to the Pledgee such financing statements, in form reasonably
acceptable to the Pledgee, as the Pledgee may from time to time reasonably
request or as are reasonably necessary or desirable in the opinion of the
Pledgee to establish and maintain a valid, enforceable, perfected security
interest in the Collateral as provided herein. Each Pledgor will pay any
applicable filing fees, recordation taxes and related expenses relating to the
perfection of Pledgee's security interest in its Collateral. Each Pledgor hereby
authorizes the Pledgee to file any such financing statements without the
signature of such Pledgor where permitted by law.
(b) Each Pledgor hereby constitutes and appoints the Pledgee its true
and lawful attorney, irrevocably, with full power after the occurrence of and
during the continuance of an Event of Default (in the name of such Pledgor or
otherwise) to act, require, demand, receive and give acquittance for any and all
monies and claims for monies due or to become due to such Pledgor under or
arising out of the Collateral, to endorse any checks or other instruments or
orders in connection therewith and to file any claims or take any action or
institute any proceedings which the Pledgee may deem to be necessary or
advisable to protect the interests of the Secured Parties, which appointment as
attorney is coupled with an interest.
14. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured
Creditor acknowledges and agrees that the obligations of the Pledgee as holder
of the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this
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Agreement and in Section 9 of the Credit Agreement. The Pledgee shall act
hereunder on the terms and conditions set forth herein and in Section 9 of the
Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all of its Collateral and that it has sufficient
interest in all of its Collateral in which a security interest is purported
to be created hereunder for such security interest to attach (subject, in
each case, to no pledge, lien, mortgage, hypothecation, security interest,
charge, option, Adverse Claim or other encumbrance whatsoever, except the
liens and security interests created by this Agreement or permitted under
the Secured Debt Agreements);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of
such Pledgor enforceable against such Pledgor in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(iv) except to the extent already obtained or made, no consent of
any other party (including, without limitation, any stockholder, partner,
member or creditor of such Pledgor or any of its Subsidiaries) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by such Pledgor in
connection with (a) the execution, delivery or performance of this
Agreement by such Pledgor, (b) the validity or enforceability of this
Agreement against such Pledgor (except as set forth in clause (iii) above),
(c) the perfection or enforceability of the Pledgee's security interest in
such Pledgor's Collateral or (d) except for compliance with or as may be
required by applicable securities laws, the exercise by the Pledgee of any
of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement by
such Pledgor will not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign, applicable to
such Pledgor, or of the certificate of incorporation, operating agreement,
limited liability company agreement, partnership agreement or by-laws of
such Pledgor or of any securities issued by such Pledgor or any of its
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Subsidiaries, or of any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or other material contract, agreement or
instrument or undertaking to which such Pledgor or any of its Subsidiaries
is a party or which purports to be binding upon such Pledgor or any of its
Subsidiaries or upon any of their respective assets and will not result in
the creation or imposition of (or the obligation to create or impose) any
lien or encumbrance on any of the assets of such Pledgor or any of its
Subsidiaries except as contemplated by this Agreement (other than the Liens
created by the Collateral Documents);
(vi) all of such Pledgor's Collateral (consisting of Securities,
Limited Liability Company Interests or Partnership Interests) has been duly
and validly acquired, is fully paid and non-assessable and is subject to no
options to purchase or similar rights;
(vii) each of such Pledgor's Pledged Notes, in respect of which any
Subsidiary or Affiliate of Holdings is the obligor thereof, constitutes, or
when executed by the obligor thereof will constitute, the legal, valid and
binding obligation of such obligor, enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(viii) the pledge, collateral assignment and delivery to the Pledgee
of such Pledgor's Collateral consisting of Certificated Securities and
Pledged Notes pursuant to this Agreement creates a valid and perfected
first priority security interest in such Certificated Securities and
Pledged Notes, and the proceeds thereof, subject to no prior Lien or
encumbrance or to any agreement purporting to grant to any third party a
Lien or encumbrance on the property or assets of such Pledgor which would
include the Securities (other than those Liens permitted to exist with
respect to the Collateral pursuant to the terms of the Secured Debt
Agreements then in effect) and the Pledgee is entitled to all the rights,
priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all of such Pledgor's Collateral consisting of
Securities (including, without limitation, Notes which are Securities) with
respect to which such "control" may be obtained pursuant to Section 8-106
of the UCC, except to the extent that the obligation of the applicable
Pledgor to provide the Pledgee with "control" of such Collateral has not
yet arisen under this Agreement; provided that in the case of the Pledgee
obtaining "control" over Collateral consisting of a Security Entitlement,
such Pledgor shall have taken all steps in its control so that the Pledgee
obtains "control" over such Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee by
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such Pledgor as Collateral hereunder and will likewise defend the right thereto
and security interest therein of the Pledgee and the other Secured Parties.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Loan Document.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION;
LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact
legal name of each Pledgor, the type of organization of such Pledgor, whether or
not such Pledgor is a Registered Organization, the jurisdiction of organization
of such Pledgor, such Pledgor's Location, the organizational identification
number (if any) of each Pledgor, and whether or not such Pledgor is a
Transmitting Utility, is listed on Annex A hereto for such Pledgor. No Pledgor
shall change its legal name, its type of organization, its status as a
Registered Organization (in the case of a Registered Organization), its status
as a Transmitting Utility or as a Person which is not a Transmitting Utility, as
the case may be, its jurisdiction of organization, its Location, or its
organizational identification number (if any), except that any such changes
shall be permitted (so long as not in violation of the applicable requirements
of the Secured Debt Agreements and so long as same do not involve (x) a
Registered Organization ceasing to constitute same or (y) any Pledgor changing
its jurisdiction of organization or Location from the United States or a State
thereof to a jurisdiction of organization or Location, as the case may be,
outside the United States or a State thereof) if (i) it shall have given to the
Collateral Agent not less than 15 days' prior written notice of each change to
the information listed on Annex A (as adjusted for any subsequent changes
thereto previously made in accordance with this sentence), together with a
supplement to Annex A which shall correct all information contained therein for
such Pledgor, and (ii) in connection with the respective such change or changes,
it shall have taken all action reasonably requested by the Collateral Agent to
maintain the security interests of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect. In addition, to the extent that any Pledgor does not have an
organizational identification number on the date hereof and later obtains one,
such Pledgor shall promptly thereafter deliver a notification of the Collateral
Agent of such organizational identification number and shall take all actions
reasonably satisfactory to the Collateral Agent to the extent necessary to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby fully perfected and in full force and effect.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever (other than termination of this Agreement pursuant to
Section 20 hereof), including, without limitation: (i) any renewal, extension,
amendment or modification of or addition or supplement to or deletion from any
Secured Debt Agreement (other than this Agreement in accordance with its terms)
or any other instrument or agreement referred to therein, or any assignment or
transfer of any thereof; (ii) any waiver, consent, extension, indulgence or
other action or inaction under or in respect of any such agreement or instrument
including, without limitation, this Agreement (other than a waiver, consent or
extension with respect to this Agreement in accordance with its terms); (iii)
any
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furnishing of any additional security to the Pledgee or its assignee or any
acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. If at any time when the Pledgee shall
determine to exercise its right to sell all or any part of the Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests pursuant to Section 7 hereof, and such Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively registered under
the Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral, as the case may be, or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, in good xxxxx
xxxxx reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until
after registration as aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date, this Agreement
shall terminate (provided that all indemnities set forth herein including,
without limitation, in Section 11 hereof shall survive any such termination) and
the Pledgee, at the request and expense of the respective Pledgor, will promptly
execute and deliver to such Pledgor a proper instrument or instruments
(including Uniform Commercial Code termination statements) acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Pledgee and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement, together with any moneys at the time held by the Pledgee or any
of its sub-agents hereunder and, with respect to any Collateral consisting of an
Uncertificated Security (other than an Uncertificated Security credited on the
books of a Clearing Corporation), a Partnership Interest or a Limited Liability
Company Interest, a termination of the agreement relating thereto executed and
delivered by the issuer of such Uncertificated Security pursuant to Section
3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section 3.2(a)(iv). As used in this Agreement, "Termination Date"
shall mean the date upon which the Commitments under the Credit Agreement have
been terminated and all Secured Hedging Agreements entitled to the benefits of
this Agreement have been terminated, no Note, Loan or Letter of Credit is
outstanding and all other Obligations (other than indemnities
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described in Section 11 hereof and described in Section 10.3 of the Credit
Agreement, and any other indemnities set forth in any other Collateral
Documents, in each case which are not then due and payable) then due and payable
have been paid in full in cash.
(b) In the event that any part of the Collateral is sold or otherwise
disposed of (x) at any time prior to the time at which all Loan Document
Obligations have been paid in full and all Commitments and Letters of Credit
under the Credit Agreement have been terminated, in connection with a sale or
disposition permitted by subsection 7.7 of the Credit Agreement or is otherwise
released at the direction of the Required Lenders (or all the Lenders if
required by subsection 10.6 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the other Secured Debt Agreements, and in
the case of clauses (x) and (y), the proceeds of such sale or disposition (or
from such release) are applied in accordance with the terms of the Credit
Agreement or such other Secured Debt Agreement, as the case may be, to the
extent required to be so applied, the Pledgee, at the request and expense of
such Pledgor, will duly release from the security interest created hereby (and
will execute and deliver such documentation, including termination or partial
release statements and the like in connection therewith) and assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as is then being (or has been) so sold or
released and as may be in the possession of the Pledgee (or, in the case of
Collateral held by any sub-agent designated pursuant to Section 4 hereof, such
sub-agent) and has not theretofore been released pursuant to this Agreement.
(c) At any time that any Pledgor desires that Collateral be released
as provided in the foregoing Section 20(a) or (b), it shall deliver to the
Pledgee (and the relevant sub-agent, if any, designated pursuant to Section 4
hereof) a certificate signed by an authorized officer of such Pledgor stating
that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b) hereof. If reasonably requested by the Pledgee (although the
Pledgee shall have no obligation to make any such request), the relevant Pledgor
shall furnish appropriate legal opinions (from counsel reasonably acceptable to
the Pledgee) to the effect set forth in the immediately preceding sentence.
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with (or which the Pledgee in the absence of gross negligence and willful
misconduct believes to be in accordance with) this Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled or sent by courier, be effective when
deposited in the mails, delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Pledgee or any Pledgor shall not be
effective until received by the Collateral Agent or such Pledgor, as the case
may be. All notices and other communications shall be in writing addressed as
follows:
(a) if to any Pledgor, at its address set forth opposite its
signature below;
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(b) if to the Pledgee, at:
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxxxxx, Vice-President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000;
(c) if to any Lender Creditor, either (x) to the Administrative
Agent, at the address of the Administrative Agent specified in the Credit
Agreement, or (y) at such address as such Lender Creditor shall have specified
in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
22. WAIVER; AMENDMENT. Except as contemplated in Section 31 hereof,
none of the terms and conditions of this Agreement may be changed, waived,
modified or varied in any manner whatsoever unless in writing duly signed by
each Pledgor directly affected thereby and the Pledgee (with the written consent
of either (x) the Requisite Lenders (or all of the Lenders to the extent
required by subsection 10.6 of the Credit Agreement) at all times prior to the
time at which all Loan Document Obligations have been paid in full or (y) the
holders of at least a majority of the outstanding Other Obligations at all times
after the time at which all Loan Document Obligations have been paid in full);
provided, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Secured Creditors (and not
all Secured Creditors in a like or similar manner) shall also require the
written consent of the Requisite Creditors (as defined below) of such affected
Class. For the purpose of this Agreement, the term "Class" shall mean each class
of Secured Creditors, i.e., whether (i) the Lender Creditors as holders of the
Loan Document Obligations or (ii) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (i) with respect to the Loan Document
Obligations, the Requisite Lenders (or, to the extent provided in subsection
10.6 of the Credit Agreement, each of the Lenders) and (ii) with respect to the
Other Obligations, the holders of at least a majority of all Other Obligations
outstanding from time to time.
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each
Pledgor and its successors and assigns (although no Pledgor may assign its
rights and obligations hereunder except in accordance with the provisions of the
Secured Debt Agreements) and shall inure to the benefit of the Pledgee and the
other Secured Creditors and their respective successors and assigns. All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured
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Debt Agreements regardless of any investigation made by the Secured Creditors or
on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several Sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE
AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH
PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF
PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
-00-
XXXX XXXXX THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Pledgor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in Pledgor's possession, nor shall
the Pledgee be required or obligated in any manner to perform or fulfill any of
the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Pledgor and the
Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
29. RECOURSE. This Agreement is made with full recourse to each
Pledgor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Pledgor contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the requirements of the Credit
Agreement or any other Loan Document, shall automatically become a Pledgor
hereunder by executing a counterpart hereof and delivering the same to the
Pledgee. Each of Holdings and Borrower hereby agrees that it shall and shall
cause any of its respective Subsidiaries that becomes a Pledgor hereunder to (i)
deliver supplements to Annexes A through G, inclusive, hereto, as are necessary
to cause such Annexes to be complete and accurate with respect to such
additional Pledgor on such date and (ii) take all actions as specified in this
Agreement as would have been taken by such Pledgor had it been an original party
to this Agreement, in each case with all documents required above to be
delivered to the Pledgee and with all documents and actions required above to be
taken to the reasonable satisfaction of the Pledgee.
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31. RELEASE OF PLEDGORS. If at any time all of the Equity
Interests of any Pledgor owned by Borrower or any of its Subsidiaries are sold
(to a Person other than Borrower or any Subsidiary Guarantor) in a transaction
permitted pursuant to the Credit Agreement (and which does not violate the terms
of any other Secured Debt Agreement then in effect), then, such Pledgor shall be
released as a Pledgor pursuant to this Agreement without any further action
hereunder (it being understood that the sale of all of the Equity Interests in
any Person that owns, directly or indirectly, all of the Equity Interests in any
Pledgor shall be deemed to be a sale of all of the Equity Interests in such
Pledgor for purposes of this Section), and the Pledgee is authorized and
directed to execute and deliver such instruments of release as are reasonably
satisfactory to it. At any time that Holdings desires that a Pledgor be released
from this Agreement as provided in this Section 31, Holdings shall deliver to
the Pledgee a certificate signed by a principal executive officer of Holdings
stating that the release of such Pledgor is permitted pursuant to this Section
31. If requested by Pledgee (although the Pledgee shall have no obligation to
make any such request), Holdings shall furnish legal opinions (from counsel
acceptable to the Pledgee) to the effect set forth in the immediately preceding
sentence. The Pledgee shall have no liability whatsoever to any other Secured
Creditor as a result of the release of any Pledgor by it in accordance with, or
which it believes to be in accordance with, this Section 31.
32. AMENDMENT AND RESTATEMENT. Each of the Collateral Agent and each
of the Pledgors hereby acknowledges and agrees that from and after the
Restatement Effective Date, this Agreement amends, restates and supersedes the
Original Pledge Agreement in its entirety.
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IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Addresses:
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S, INC., as a Pledgor
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
Attention: Chief Financial Officer -------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive TISM, INC., as a Pledgor
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
Attention: Chief Financial Officer -------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA LLC, as a Pledgor
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
Attention: Chief Financial Officer -------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA INTERNATIONAL, INC.,
Xxx Xxxxx, XX 00000 as a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Chief Financial Officer By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA GOVERNMENT SERVICES
Xxx Xxxxx, XX 00000 DIVISION, INC., as a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Chief Financial Officer By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA INTERNATIONAL
Xxx Xxxxx, XX 00000 PAYROLL SERVICES,INC., as a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Chief Financial Officer By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA PMC, INC., as a
Xxx Xxxxx, XX 00000 Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Chief Financial Officer By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S FRANCHISE HOLDING CO., as
Xxx Xxxxx, XX 00000 a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Chief Financial Officer By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Accepted and Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent and Pledgee
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
