PLEDGE AGREEMENT
Exhibit 10.4
This PLEDGE AGREEMENT, dated as of July 7, 2009 (as this agreement may be amended, amended and
restated, supplemented or otherwise modified, renewed or replaced from time to time, this
“Agreement”), is by and among each of the parties listed on Schedule I hereto (each
such party together with any other Person that becomes a party hereto pursuant to Section
25 is referred to individually as a “Pledgor” and collectively as the
“Pledgors”), and The Bank of New York Mellon Trust Company, N.A., as collateral agent (the
“Collateral Agent”) on behalf of the Secured Parties (as defined in the Security Agreement
dated as of the date hereof among the Pledgors and the Collateral Agent (as amended, amended and
restated, supplemented or otherwise modified, renewed or replaced from time to time, the
“Security Agreement”)).
RECITALS
WHEREAS, Commercial Barge Line Company, a corporation formed under the laws of Delaware (the
“Issuer”) is issuing $200,000,000 aggregate principal amount of 121/2% Senior Secured Notes
due 2017 (together with any Additional Notes, the “Notes”) pursuant to the indenture (the
“Indenture”) dated as of July 7, 2009 among the Issuer, the Guarantors and The Bank of New
York Mellon Trust Company, N.A., as trustee (together with its successors in such capacity, the
“Trustee”) on behalf of the holders of the Notes (the “Noteholders”).
WHEREAS, from time to time after the date hereof, subject to the terms and conditions of the
Indenture and the Notes Documents (as defined in the Security Agreement), additional Permitted
Additional Pari Passu Obligations (including Additional Notes issued under the Indenture) may be
incurred, which are pari passu in right of payment to the Notes and secured equally and ratable
with the Notes and by the Pledged Collateral.
WHEREAS, each Guarantor has, pursuant to the Indenture, among other things, unconditionally
guaranteed the obligations of the Issuer under the Indenture and the Notes and may do so under the
terms of any Permitted Additional Pari Passu Obligations permitted to be incurred under the
Indenture.
WHEREAS, this Agreement is given by each Pledgor in favor of the Collateral Agent for the
benefit of the Secured Parties to secure the payment and performance of all of the Obligations.
WHEREAS, it is a condition to the issuance of the Notes that each Pledgor execute and deliver
the applicable Collateral Documents (as defined in the Security Agreement), including this
Agreement.
NOW, THEREFORE, in order to (i) secure the prompt and complete payment and performance when
due of the Obligations (as defined in the Security Agreement) and for good and valuable
consideration, the receipt of which is hereby acknowledged, and (ii) grant, pledge, hypothecate and
transfer to the Collateral Agent, for the ratable benefit of the Secured
Parties, a security interest in each Pledgor’s right, title and interest in, to and under the
Pledged Collateral whether presently existing or hereafter arising or acquired, each of the
Pledgors, the Collateral Agent, on behalf of itself and each Secured Party (and each of their
respective successors or assigns), hereby agrees as follows:
SECTION 1. Definition of Certain Terms Used Herein. Except as specifically defined in this
Agreement, all capitalized terms shall have the meanings given to those terms in the Security
Agreement.
SECTION 2. Pledge.
(a) As security for the payment or performance, as the case may be, in full of the
Obligations, each Pledgor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, its successors and assigns, for the benefit of
the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the
benefit of the Secured Parties, a security interest in all of such Pledgor’s right, title and
interest in, to and under the foregoing, wherever located and whether now existing or hereafter
arising or acquired from time to time (i) any shares of capital stock, partnership interests (and
any other interest or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of property of such partnership), membership interests in a
limited liability company, beneficial interests in a trust or other equity ownership interests in a
Person (collectively, the “Equity Interests”) owned by such Pledgor which are initially
listed on Schedule II hereto and any Equity Interests obtained in the future by such
Pledgor and the certificates representing all such Equity Interests (the “Pledged Equity
Interests”); provided that, (x) subject to the last sentence of this Section
2(a), Pledged Equity Interests of each foreign subsidiary of a Pledgor that are entitled to
vote shall be limited, in the aggregate, to the pledge of 65% of the issued and outstanding common
stock entitled to vote of such foreign subsidiary notwithstanding the delivery by any Pledgor to
the Collateral Agent of a stock certificate representing in excess of such percentage ownership and
(y) interests in any joint venture will not constitute Pledged Equity Interests hereunder to the
extent and for so long as the documents governing such joint venture prohibit the granting of a
security interest therein; (ii) (x) the debt securities owned by it which are listed opposite the
name of such Pledgor on Schedule II hereto, (y) any other debt securities issued to such
Pledgor; and (z) the promissory notes and any other instruments evidencing such debt securities;
(iii) all other property that may be delivered to and held by the Collateral Agent pursuant to the
terms hereof; (iv) subject to Section 7 hereof, all payments of principal or interest,
dividends, cash, instruments and other property from time to time received, receivable or otherwise
distributed, in respect of, in exchange for or upon the conversion of the securities referred to in
clauses (i) and (ii) above; (v) subject to Section 7 hereof, all rights and privileges of
such Pledgor with respect to the securities and other property referred to in clauses (i), (ii),
(iii) and (iv) above; and (vi) all proceeds (as such term is defined in the UCC) of any of the
foregoing (the items referred to in clauses (i) through (vi) above being collectively referred to
as the “Pledged Collateral”). Notwithstanding anything to the contrary set forth herein,
Pledged Collateral shall not include any Excluded Property. Without limiting the foregoing, the
Collateral Agent is hereby authorized to file one or more financing statements, continuation
statements or other filings or documents for the purpose of perfecting, confirming, continuing, en-
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forcing or protecting the security interest granted by each Pledgor hereunder, without the
signature of any Pledgors, and naming any Pledgor or the Pledgors as debtors and the Collateral
Agent as secured party. Notwithstanding anything to the contrary contained in this Section
2, the Pledged Equity Interests shall not include the Equity Interests of any foreign
subsidiary of a Pledgor if such pledge is not permitted by contract or applicable law, or if such
pledge could reasonably be expected to have adverse tax consequences for the Pledgors.
(b) Notwithstanding anything herein to the contrary, the lien and security interest granted to
the Collateral Agent pursuant to this Agreement shall be a second priority lien on and security
interest in Pledged Collateral and the exercise of any right or remedy by the Collateral Agent
hereunder is subject to the provisions of the Intercreditor Agreement. In the event of any
conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control. Notwithstanding anything herein to the contrary,
prior to the Senior Discharge Date (as defined in the Intercreditor Agreement), the requirements of
this Agreement to deliver any of the Pledged Collateral to the Collateral Agent shall be deemed
satisfied by delivery of such Pledged Collateral to the Revolving Collateral Agent (as bailee for
the Collateral Agent). In the event any Pledgor shall pledge any assets or undertake any actions
to perfect or protect any liens on any assets pledged in connection with the Credit Agreement, such
Pledgor shall also at the time pledge such assets to the Collateral Agent and undertake such
actions with respect to the Pledged Collateral for the benefit of the Collateral Agent without
request by the Collateral Agent
SECTION 3. No Assumption of Liability. The security interest in the Pledged Collateral is
granted as security only and shall not subject the Collateral Agent or any other Secured Parties to
any obligation or liability, or in any way alter or modify, any obligation or liability of any
Pledgor, in each case, with respect to or arising out of the Pledged Collateral.
SECTION 4. Delivery of the Pledged Collateral.
(a) Each Pledgor represents and warrants that all stock certificates, agreements, instruments
notes or other securities now or hereafter included in the Pledged Collateral (the “Pledged
Securities”) in existence on the date hereof have been delivered to the Collateral Agent. Upon
delivery to the Collateral Agent, (i) the Pledged Securities shall be accompanied by stock powers
duly executed in blank or other instruments of transfer reasonably satisfactory to the Collateral
Agent and by such other instruments and documents as the Collateral Agent may reasonably request in
order to allow the Collateral Agent, only upon the occurrence and continuance of an Event of
Default, to exercise its rights and remedies under this Agreement and (ii) all other property
comprising part of the Pledged Collateral shall be accompanied by proper instruments of assignment
duly executed by the applicable Pledgor and such other instruments or documents as the Collateral
Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a
schedule describing the securities theretofore and then being pledged hereunder, which schedule
shall be attached hereto as Schedule II and made a part hereof. Each schedule so delivered
shall supersede any prior schedules so delivered. Schedule II may be amended from time to
time by the addition of the Pledged Collateral subsequently created or acquired by execution of a
supplement in substantially the form of Annex I attached hereto.
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(b) Each Pledgor will cause any indebtedness for borrowed money in excess of $1,000,000 owed
to the Pledgor by any Person to be evidenced by a duly executed promissory note and promptly notify
the Collateral Agent thereof and upon request of the Collateral Agent, deliver such promissory note
to the Collateral Agent pursuant to the terms thereof.
SECTION 5. Representations, Warranties And Covenants. Each Pledgor hereby represents,
warrants and covenants, as to itself and the Pledged Collateral pledged by it hereunder, to the
Collateral Agent that:
(a) the Pledged Equity Interests represent that percentage as set forth on Schedule II
of the issued and outstanding shares of each class of the Equity Interests of the issuer with
respect thereto;
(b) except for the security interest granted hereunder, such Pledgor (i) except to the extent
otherwise permitted by the Indenture, is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Collateral indicated on Schedule II, (ii) holds
the same free and clear of all Liens except for non-consensual Permitted Collateral Liens and Liens
permitted pursuant to clauses (vii), (xvi) and (xxvi) of the definition of Permitted Liens as set
forth in the Indenture and any equivalent provisions of each Additional Pari Passu Agreement, (iii)
will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any
security interest in or other Lien on, the Pledged Collateral other than pursuant hereto, the
Indenture and the Credit Agreement, and (iv) subject to Sections 4 and 6, will
cause any and all Pledged Collateral required to be delivered pursuant hereto to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder;
(c) such Pledgor (i) has the power and authority to pledge the Pledged Collateral in the
manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein
against any and all Liens, however arising, of all Persons whomsoever except for non-consensual
Permitted Collateral Liens and Liens permitted pursuant to clauses (vii), (xvi) and (xxvi) of the
definition of Permitted Liens as set forth in the Indenture and any equivalent provisions of each
Additional Pari Passu Agreement;
(d) no consent of any other Person (including stockholders or creditors of any Pledgor) and no
consent or approval of any governmental authority or any securities exchange was or is necessary to
the validity of the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of this Agreement, when the
Pledged Securities, certificates or other documents representing or evidencing the Pledged
Collateral are delivered to the Collateral Agent in accordance with this Agreement or upon the
filing of financing statements in the proper jurisdictions, the Collateral Agent will have a valid
and perfected lien upon, and security interest in, such Pledged Collateral as security for the
payment and performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the Collateral Agent, on behalf of the
Secured Parties, the rights of the Collateral Agent in the Pledged Collateral as set forth herein;
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(g) all information set forth herein relating to the Pledged Collateral, including but not
limited to the information set forth on Schedule II hereto, is accurate and complete in all
material respects as of the date hereof;
(h) the Pledged Equity Interests of each subsidiary of a Pledgor have been duly authorized and
validly issued and are fully paid and non-assessable;
(i) except as permitted hereby, the Pledged Equity Interests described on Schedule II
hereof constitute all of the issued and outstanding shares of stock of each of the subsidiaries of
such Pledgor owned by such Pledgor;
(j) each Pledgor agrees that it will (i) except to the extent otherwise permitted by the
Indenture, cause each of the issuers that are subsidiaries of the Pledgors not to issue any stock
or other securities in addition to or substitution for the Pledged Securities issued by such
issuer, except to the respective Pledgor and (ii) pledge hereunder and deliver to the Collateral
Agent as set forth in Section 4, immediately upon its acquisition (directly or indirectly) thereof,
any and all such additional shares of stock or other securities of each issuer of the Pledged
Securities, subject to the terms hereof; and
(k) the pledge of the Pledged Securities pursuant to this Agreement does not violate
Regulation T, U or X of the Federal Reserve Board or any successor thereto as of the date hereof.
SECTION 6. Registration in Nominee Name; Denominations. The Collateral Agent shall have
the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent, or upon the occurrence
and during the continuance of an Event of Default, subject to the terms of the Intercreditor
Agreement, in its own name as pledgee or the name of its nominee (as pledgee or as sub-agent).
Each Pledgor will promptly give to the Collateral Agent copies of any material notices or other
communications received by it with respect to Pledged Securities registered in the name of such
Pledgor. Upon the occurrence of an Event of Default and subject to the terms of the Intercreditor
Agreement, the Collateral Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 7. Voting Rights; Dividends and Interest, Etc.
(a) Unless and until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting and other consensual
rights and powers inuring to an owner of Pledged Securities or any part thereof for any
purpose consistent with the terms of this Agreement and the other Notes Documents;
provided, however, that such Pledgor will not be entitled to exercise any
such right if the result thereof could materially and adversely affect the rights inuring to
a holder of the Pledged Securities or the rights and remedies of any of the Secured Parties
under this Agreement or any other Notes Document or the ability of the Secured Parties to
exercise the same.
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(ii) Each Pledgor shall be entitled to receive and retain any and all cash dividends,
interest and principal paid on the Pledged Collateral to the extent and only to the extent
that such cash dividends, interest and principal are permitted by, and otherwise paid in
accordance with, the terms and conditions of the Notes Documents and applicable laws.
(iii) The Collateral Agent shall execute and deliver to each Pledgor, or cause to be
executed and delivered to each Pledgor, all such proxies, powers of attorney and other
instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor
to exercise the voting and/or consensual rights and powers it is entitled to exercise
pursuant to subparagraph (i) above and to receive the cash dividends it is entitled to
receive pursuant to subparagraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default, subject to the
terms of the Intercreditor Agreement, all rights of any Pledgor to dividends, interest or principal
that such Pledgor is authorized to receive pursuant to paragraph (a)(ii) above shall cease, and all
such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and
exclusive right and authority to receive and retain such dividends, interest or principal. All
dividends, interest or principal received by the Pledgor contrary to the provisions of this
Section 7 shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith delivered to the
Collateral Agent upon demand in the same form as so received (with any necessary endorsement). Any
and all money and other property paid over to or received by the Collateral Agent pursuant to the
provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of the Intercreditor Agreement. After all Events of
Default have been cured or waived, the Pledgor shall thereafter be entitled to retain all cash
dividends that such Pledgor would otherwise be permitted to retain pursuant to the terms of
paragraph (a)(ii) above.
(c) Upon the occurrence and during the continuance of an Event of Default, subject to the
terms of the Intercreditor Agreement, all rights of any Pledgor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 7, and the obligations of the Collateral Agent under paragraph (a)(iii) of this
Section 7, shall cease upon the giving of notice by the Collateral Agent to the Pledgor,
and all such rights shall thereupon become vested in the Collateral Agent, which shall have the
sole and exclusive right and authority to exercise such voting and consensual rights and powers,
provided that the Collateral Agent shall have the right, but not the obligation, from time
to time following and during the continuance of an Event of Default to permit the Pledgors to
exercise such rights. After all Events of Default have been cured or waived, each Pledgor will
have the right to exercise the voting and consensual rights and powers that it would otherwise be
entitled to exercise pursuant to the terms of paragraph (a)(i) above.
SECTION 8. Remedies Upon Default.
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(a) Upon the occurrence and during the continuance of an Event of Default, subject to the
terms of the Intercreditor Agreement, Collateral Agent, on behalf of the Secured Parties, may
exercise all the rights and remedies granted under this Agreement, including, without limitation,
the right to sell the Pledged Collateral, or any part thereof, at public or private sale or at any
broker’s board, on any securities exchange or in the over-the-counter market, for cash, upon credit
or for future delivery as the Collateral Agent shall deem appropriate subject to the terms hereof
or as otherwise provided in the Uniform Commercial Code of any applicable jurisdiction; provided
that, except as otherwise expressly provided in the Indenture or the other Note Documents, the
Collateral Agent shall exercise, or refrain from exercising, any remedies provided for herein, in
accordance with the instructions of the Required Secured Parties (as defined in the Security
Agreement). The Collateral Agent shall be authorized at any such sale (if it deems it advisable to
do so) to restrict to the full extent required by applicable law the prospective bidders or
purchasers to Persons who will represent and agree that they are purchasing the Pledged Collateral
for their own account for investment and not with a view to the distribution or sale thereof, and
upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer
and deliver to the purchaser or purchasers thereof the Pledged Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely free from any claim or right on
the part of any Pledgor, and, to the extent permitted by applicable law, the Pledgors hereby waive
all rights of redemption, stay, valuation and appraisal any Pledgor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter enacted.
(b) The Collateral Agent shall give a Pledgor ten (10) days’ prior written notice of the
Collateral Agent’s intention to make any sale of such Pledgor’s Pledged Collateral. Such notice,
in the case of a public sale, shall state the time and place for such sale and, in the case of a
sale at a broker’s board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Pledged Collateral, or portion thereof, will first
be offered for sale at such board or exchange. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places as the Collateral Agent may fix
and state in the notice of such sale. At any such sale, the Pledged Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Pledged Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of such Pledged Collateral shall have been given. The Collateral
Agent may, without notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for sale, and such sale
may, without further notice, be made at the time and place to which the same was so adjourned. In
case any sale of all or any part of the Pledged Collateral is made on credit or for future
delivery, the Pledged Collateral so sold may be retained by the Collateral Agent until the sale
price is paid in full by the purchaser or purchasers thereof, but the Collateral Agent shall not
incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the
Pledged Collateral so sold and, in case of any such failure, such Pledged Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by applicable law, private)
sale made pursuant to this Section 8, any Secured Party may bid for or purchase, free from any
claim or right of whatever kind, including any equity of redemption, of the Pledgors, any such
demand, notice, claim, right or equity being
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hereby expressly waived and released, the Pledged Collateral or any part thereof offered for sale and
may make payment on account thereof by using any Obligation then due and payable to it from such
Pledgor as a credit against the purchase price, and it may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to such Pledgor therefor.
SECTION 9. Application of Proceeds of Sale. Subject to the terms of the Intercreditor
Agreement, the proceeds of sale of the Pledged Collateral sold pursuant to Section 8 hereof
shall be applied in accordance with the provisions of the Security Agreement.
SECTION 10. Reimbursement of Collateral Agent.
(a) Each Pledgor agrees to pay upon demand by the Collateral Agent the amount of any and all
reasonable expenses, including the reasonable fees, other charges and disbursements of its counsel
and of any experts or agents, that the Collateral Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, (iii) the exercise or enforcement
of any of the rights of the Collateral Agent hereunder or (iv) the failure by such Pledgor to
perform or observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the other Notes Documents,
each Pledgor agrees to indemnify the Secured Parties and their respective Indemnitees
(collectively, the “Indemnified Parties”) against, and hold each such Indemnified Party
harmless from, any and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, other charges and disbursements, incurred by or asserted against any such
Indemnified Party arising out of, in any way connected with, or as a result of (i) the execution or
delivery of this Agreement or any other Collateral Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the other transactions contemplated thereby or (ii)
any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not
any Indemnified Party is a party thereto, provided that such indemnity shall not, as to any
Indemnified Party, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnified
Party.
(c) Any amounts payable as provided hereunder shall be additional Obligations secured hereby
and by the other Collateral Documents. The provisions of this Section 10 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other
Notes Document, the consummation of the transactions contemplated thereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Notes Document or any investigation made by or on behalf of the Collateral Agent or any
Secured Party. All amounts due under this Section 10 shall be payable on written demand
therefore given in accordance with Section 17 hereof.
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SECTION 11. Collateral Agent Appointed Attorney-In-Fact. Each Pledgor hereby appoints the
Collateral Agent the attorney-in-fact of such Pledgor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument that the Collateral
Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest. Without limiting the generality of the foregoing and
subject to the terms of the Intercreditor Agreement, the Collateral Agent shall have the right,
upon the occurrence and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent’s name or in the name of such Pledgor, to ask for,
demand, xxx for, collect, receive and give acquittance for any and all monies due or to become due
under and by virtue of any Pledged Collateral, to endorse checks, drafts, orders and other
instruments for the payment of money payable to the Pledgor representing any interest or dividend
or other distribution payable in respect of the Pledged Collateral or any part thereof or on
account thereof and to give full discharge for the same, to settle, compromise, prosecute or defend
any action, claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and to make any agreement respecting, or otherwise deal with, the same; provided,
however, that nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, or to present or file any claim or notice, or to take
any action with respect to the Pledged Collateral or any part thereof or the monies due or to
become due in respect thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a result of the exercise
of the powers granted to them herein, and neither they nor their shareholders, officers, directors,
employees or agents shall be responsible to any Pledgor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
SECTION 12. Collateral Agent May Perform. If any Pledgor fails to perform any agreement
contained herein, upon written notice to such Pledgor and to the extent the applicable Pledgor has
not remedied such failure to perform within thirty (30) days, the Collateral Agent but is under no
obligation to may itself perform, or cause performance of, such agreement, and the reasonable
expenses of the Collateral Agent incurred in connection therewith shall be payable by the Pledgors
under Section 10 hereof.
SECTION 13. Waivers; Amendment.
(a) No failure or delay of the Collateral Agent in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and
remedies of the Collateral Agent hereunder and of the other Secured Parties under the other Notes
Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provisions of this Agreement or consent to any departure by any Pledgor
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on
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any Pledgor in any case shall entitle such Pledgor to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Collateral Agent, the Pledgor or Pledgors
with respect to which such waiver, amendment or modification is to apply and by each other
Additional Pari Passu Agent (as defined in the Security Agreement) to the extent required by (and
in accordance with) each Additional Pari Passu Agreement (as defined in the Security Agreement)
subject to any consent requirements of the Indenture or any other Additional Pari Passu Agreement.
SECTION 14. Securities Act, Etc. In view of the position of the Pledgors in relation to
the Pledged Securities, or because of other current or future circumstances, a question may arise
under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter
enacted analogous in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the “Federal Securities Laws”) with respect to any disposition of
the Pledged Securities permitted hereunder. Each Pledgor understands that compliance with the
Federal Securities Laws might limit the course of conduct of the Collateral Agent if the Collateral
Agent were to attempt to dispose of all or any part of the Pledged Securities, and might also limit
the extent to which or the manner in which any subsequent transferee of any Pledged Securities
could dispose of the same. Similarly, there may be other legal restrictions or limitations
affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Securities
under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and limitations the Collateral
Agent may, with respect to any sale of the Pledged Securities, limit the purchasers to those who
will agree, among other things, to acquire such Pledged Securities for their own account, for
investment, and not with a view to the distribution or resale thereof. Each Pledgor acknowledges
and agrees that in light of such restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, may proceed to make such a sale whether or not a registration statement
for the purpose of registering such Pledged Securities or part thereof shall have been filed under
the Federal Securities Laws. Each Pledgor acknowledges and agrees that any such sale might result
in prices and other terms less favorable to the seller than if such sale were a public sale without
such restrictions. In the event of any such sale, the Collateral Agent shall incur no
responsibility or liability for selling all or any part of the Pledged Securities at a price that
the Collateral Agent, in its sole and absolute discretion, may in good xxxxx xxxx reasonable under
the circumstances, notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid. The provisions of
this Section 14 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which the Collateral
Agent sells.
SECTION 15. Security Interest Absolute. All rights of the Collateral Agent hereunder, the
grant of a security interest in the Pledged Collateral and all obligations of each Pledgor
hereunder, shall be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Notes Documents, any agreement with respect to any of the Obligations or any
other agreement or instrument relating to any of the foregoing, (b) any change in the time,
-10-
manner or place of payment of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from any Notes Document or any other
agreement or instrument relating to any of the foregoing, (c) any exchange, release or
nonperfection 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 Obligations or (d) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the
Obligations or in respect of this Agreement (other than the indefeasible payment in full of all the
Obligations).
SECTION 16. Termination or Release.
(a) This Agreement and the pledge and security interest created hereby shall terminate upon
the Discharge of Obligations (as defined in the Security Agreement). Upon the Discharge of
Obligations with respect to the Indenture, the Required Secured Parties shall be entitled to
appoint a successor Collateral Agent under this Agreement and the other Security Document to the
extent that any Permitted Additional Pari Passu Obligations remain outstanding at such time.
(b) Subject, in each case, to the terms of the Intercreditor Agreement, upon any sale or other
transfer by any Pledgor of any Pledged Collateral that is permitted under the Indenture and each
Additional Pari Passu Agreement and to any Person that is not a Pledgor, or, upon the effectiveness
of any written consent to the release of the security interest granted hereby in any Pledged
Collateral pursuant to the Indenture and each Additional Pari Passu Agreement, the security
interest in such Pledged Collateral shall be automatically released.
(c) The security interests granted hereunder shall terminate and be released, in whole or in
part, (i) as to Note Obligations under the Indenture, as provided in the Indenture and (ii) as to
the Permitted Additional Pari Passu Obligations under any Additional Pari Passu Agreement, as
provided in such Additional Pari Passu Agreement.
(d) Upon termination of this Agreement or release of the security interest in any Pledged
Collateral pursuant to (a), (b) or (c) above, the Collateral Agent shall execute and deliver to the
Pledgors, at the Pledgors’ expense, all appropriate documents which the Pledgors shall reasonably
request to evidence such termination. Any execution and delivery of termination statements or
documents pursuant to this Section 16 shall be without recourse to or warranty by the
Collateral Agent.
SECTION 17. Notices. Notices and other communications provided for herein shall be in the
manner and at the addresses set forth in, and otherwise in accordance with, Section 13.2 of the
Indenture (whether or not then in effect) and if to any Additional Pari Passu Agent or holders of
any Permitted Additional Pari Passu Obligation, to the address specified in the applicable
Additional Pari Passu Joinder Agreement (as defined in the Security Agreement).
SECTION 18. Further Assurances. Each Pledgor agrees to do such further acts and things,
and to execute and deliver such additional conveyances, assignments, agreements and instruments, as
may be necessary or as the Collateral Agent may at any time reasonably request in
-11-
connection with the administration and enforcement of this Agreement or with respect to the Pledged
Collateral or any part thereof or in order better to assure and confirm unto the Collateral Agent
its rights and remedies hereunder.
SECTION 19. Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, except
that the Pledgors may not assign or otherwise transfer any of their rights or obligations hereunder
except as permitted by the Indenture and each Additional Pari Passu Agreement.. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto and their respective successors and assigns permitted hereby) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
SECTION 20. Counterparts; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement
shall become effective as to any Pledgor when a counterpart hereof executed on behalf of such
Pledgor shall have been delivered to the Collateral Agent. Delivery of an executed counterpart of
a signature page of this Agreement by telecopy or email shall be effective as delivery of a
manually executed counterpart of this Agreement. This Agreement shall be construed as a separate
agreement with respect to each Pledgor and may be amended, modified, supplemented, waived or
released with respect to any Pledgor without the approval of any other Pledgor and without
affecting the obligations of any other Pledgor hereunder.
SECTION 21. Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 22. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the internal laws of
the State of New York, without giving effect to any conflict of law principles.
(b) The Pledgors hereby irrevocably and unconditionally submit, for themselves and their
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that the Collateral Agent, or any Se-
-12-
cured Party may otherwise have to bring any action or proceeding relating to this Agreement
against the Pledgors or their properties in the courts of any jurisdiction.
(c) The Pledgors hereby irrevocably and unconditionally waive, to the fullest extent they may
legally and effectively do so, any objection which they may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 13.2 of the Indenture. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 24. Headings. Section headings used herein are for the purpose of reference only,
are not part of this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 25. Additional Pledgors. Each subsequently acquired or organized Domestic
Subsidiary required by Section 4.20 of the Indenture and any equivalent provision of each
Additional Pari Passu Agreement to enter in to this Agreement as an additional Pledgor (each such
Domestic Subsidiary, an “Additional Pledgor”) shall execute an Instrument of Assumption and
Joinder (a “Joinder”) substantially in the form of Annex II. Upon execution and
delivery of any such Joinder to Collateral Agent, each such Additional Pledgor shall become a
Pledgor hereunder with the same force and effect as if originally named as a Pledgor herein. The
execution and delivery of such instrument shall not require the consent of any Pledgor hereunder.
The rights and obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Pledgor as a party to this Agreement.
SECTION 26. Execution of Financing Statements. Pursuant to Section 9-509 of the Uniform
Commercial Code as in effect in the State of New York, each Pledgor authorizes the
-13-
Collateral Agent to file financing statements with respect to the Pledged Collateral owned by it
without the signature of such Pledgor in such form and in such filing offices as the Collateral
Agent reasonably determines appropriate to perfect the security interests of the Collateral Agent
under this Agreement.
SECTION 27. Incorporation by Reference. In connection with its execution and acting
hereunder the Collateral Agent is entitled to all rights, privileges, protections, immunities,
benefits and indemnities provided to it under the Security Agreement. In the event of any conflict
between the terms of this Agreement and the Security Agreement, the terms of the Security Agreement
shall govern and control.
[Remainder of Page Intentionally Left Blank]
-14-
IN WITNESS WHEREOF, each of the Pledgors has caused this Agreement to be duly executed by its
officer thereunto duly authorized as of the date and year first above written.
| AMERICAN COMMERCIAL LINES LLC COMMERCIAL BARGE LINE COMPANY JEFFBOAT LLC ACL TRANSPORTATION SERVICES LLC |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary of each | |||
| AMERICAN COMMERCIAL LINES INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |||
| Accepted and Agreed to: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Pledge Agreement
Schedule I to the Pledge Agreement
PARTIES
| Jurisdiction of | ||
| Name | Incorporation | |
American Commercial Lines LLC
|
Delaware | |
Commercial Barge Line Company
|
Delaware | |
| Delaware | ||
ACL Transportation Services LLC
|
Delaware | |
ACL Commercial Lines Inc.
|
Delaware |
Schedule I to Pledge Agreement
PLEDGED EQUITY INTERESTS
| PLEDGOR | ISSUER | CERTIFICATE NUMBER | NO. OF SHARES | CLASS OR CATEGORY | % OWNED | |||||||||||
American Commercial
Lines Inc.
|
Commercial Barge Line Company |
2 | 10 | Common | 100 | % | ||||||||||
Commercial Barge Line Company |
American Commercial Lines LLC |
Not certificated | Membership Interests | 100 | % | |||||||||||
Commercial Barge Line Company |
ACL Transportation Services LLC |
Not certificated | Membership Interests | 100 | % | |||||||||||
Commercial Barge Line Company |
Jeffboat LLC | Not certificated | Membership Interests | 100 | % | |||||||||||
Commercial Barge Line Company |
ACL Professional Services Inc. | 1 | 10 | Common | 100 | % | ||||||||||
American Commercial Lines LLC |
ACL Finance Corp. | 1 | 10 | Common | 100 | % | ||||||||||
American Commercial Lines LLC |
American Commercial Lines International LLC |
2 | 100 | Membership Interests | 100 | % | ||||||||||
American Commercial Lines LLC |
American Commercial Barge Line LLC |
Not certificated | Membership Interests | 100 | % | |||||||||||
DEBT SECURITIES
None.
Schedule II to Pledge Agreement
ANNEX I
FORM OF SUPPLEMENT
SUPPLEMENT NO. __ TO THE
PLEDGE AGREEMENT DATED AS OF __________
PLEDGE AGREEMENT DATED AS OF __________
WHEREAS, pursuant to that certain Pledge Agreement, dated as of July 7, 2009 (as the same has
been, or may hereafter be, amended or supplemented from time to time, the “Pledge
Agreement”; made by the Pledgors (as defined in the Pledge Agreement) in favor of The Bank of
New York, Mellon Trust Company, N.A., as Collateral Agent for the Secured Parties, the Pledgors
have granted, pledged, hypothecated and transferred to the Collateral Agent for the ratable benefit
of the Secured Parties, a security interest in all of the Pledgors’ right, title and interest in,
to and under the Pledged Collateral, all as more fully set forth in the Pledge Agreement.
Capitalized terms used herein without definition shall have the meanings given to them in the
Pledge Agreement;
A. WHEREAS, the undersigned Pledgor(s) have acquired or created additional Pledged Collateral
since the date of execution of the Pledge Agreement and the most recent Supplement thereto and hold
certain additional Pledged Collateral; and
B. WHEREAS, Schedule II to the Pledge Agreement does not reflect Pledged Collateral
acquired or created by the Pledgors since the date of execution of the Pledge Agreement and the
most recent Supplement thereto.
THEREFORE,
To secure the prompt and complete payment and performance when due of the Obligations, to
secure the performance and observance by each of the Pledgors of all the agreements, covenants and
provisions contained in the Indenture and in the other Notes Documents for the benefit of the
Collateral Agent on behalf of the Secured Parties, the Pledgors do hereby grant to the Collateral
Agent, for the benefit of the Secured Parties, a security interest in and to all of the Pledgors’
right, title and interest in and to the Pledged Collateral being added to Schedule II to
the Pledge Agreement below.
The Pledge Agreement is hereby supplemented, effective as of the date hereof, by amending
Schedule II thereof so as to reflect all of the Pledged Collateral in and to which the
Pledgors have granted a security interest to the Collateral Agent, for the ratable benefit of the
Secured Parties, pursuant to the terms of the Pledge Agreement and the Indenture.
The following Pledged Collateral is hereby added to Schedule II to the Pledge
Agreement:
Annex I-1
CAPITAL STOCK OR OTHER EQUITY INTERESTS
| Certificate | Class or | % | ||||||||
| Issuer | Number | Pledgor | No. of Shares | Category | Owned | |||||
DEBT SECURITIES
Except as expressly supplemented hereby, the Pledge Agreement shall continue in full force and
effect in accordance with the provisions thereof on the date hereof. As used in the Pledge
Agreement, the terms “Agreement”, “this Agreement”, “this Pledge Agreement”, “herein”, “hereafter”,
“hereto”, “hereof” and words of similar import, shall, unless the context otherwise requires, mean
the Pledge Agreement as supplemented by this Supplement.
This Supplement shall be construed as supplemental to the Pledge Agreement and shall form a
part thereof, and the Pledge Agreement and all documents contemplated thereby and any previously
executed Supplements thereto, are each hereby incorporated by reference herein and confirmed and
ratified by the Pledgors.
The execution and filing of this Supplement, and the addition of the Pledged Collateral set
forth herein are not intended by the parties to derogate from, or extinguish, any of the rights or
remedies of the Collateral Agent under (i) the Pledge Agreement and/or any agreement, amendment or
supplement thereto or any other instrument executed by the Pledgors or (ii) any financing
statement, continuation statement, deed or charge or other instrument executed by the Pledgors and
heretofore filed in any state or county in the United States of America or elsewhere.
[Remainder of Page Intentionally Left Blank]
Annex I-2
IN
WITNESS WHEREOF, the Pledgors have caused this Supplement No.
___ to the Pledge Agreement to be duly executed as of the date and year first written above.
| [NAME OF EACH PLEDGOR] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted and Agreed to: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Annex I-3
ANNEX II
FORM OF INSTRUMENT OF JOINDER
JOINDER AGREEMENT dated as of ___________ (the “Joinder Agreement”) made by [Insert
Name of New Grantor] a [Insert State of Organization] [corporation, limited partnership or limited
liability company] (the “Company”) in favor of the Secured Parties (as defined in that
certain Pledge Agreement dated as of July 7, 2009 (as such agreement may be amended, amended and
restated, supplemented or otherwise modified, renewed or replaced from time to time, the
“Pledge Agreement”)) among the Pledgors referred to therein (the “Pledgors”) and
The Bank of New York Mellon Trust Company, N.A., as Collateral Agent (as defined in the Pledge
Agreement). Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Pledge Agreement.
WITNESSETH
The Company is a [Insert State of Organization] [corporation, limited partnership or limited
liability company], and is a subsidiary of [Insert name of Pledgor]. Pursuant to Section
25 of the Pledge Agreement, the Company is required to execute this document as a newly
[formed] [acquired] subsidiary of [Insert name of Pledgor].
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt of which is hereby acknowledged, the Company hereby agrees as follows:
SECTION 1. Assignment and Joinder.
(a) The Company hereby expressly confirms that it has assumed, and hereby agrees to perform
and observe, each and every one of the covenants, rights, promises, agreements, terms, conditions,
obligations, appointments, duties and liabilities of a Pledgor under the Pledge Agreement and all
the other Collateral Documents applicable to it as a Pledgor. By virtue of the foregoing, the
Company hereby accepts and assumes any liability of a Pledgor related to each representation or
warranty, covenant or obligation made by a Pledgor in the Pledge Agreement or any other Collateral
Document and hereby expressly affirms, as of the date hereof, each of such representations,
warranties, covenants and obligations.
(b) The company hereby pledges to the Collateral Agent for the benefit of the Secured Parties
all of its right, title and interest to the Pledged Collateral, including Pledged Collateral listed
on Schedule 1 hereto.
(c) All references to the term “Pledgor” in the Pledge Agreement or any other Collateral
Document, or in any document or instrument executed and delivered or furnished, or to be executed
and delivered or furnished, in connection therewith shall be deemed to be references to, and shall
include, the Company.
Annex II-1
SECTION 2. Representations and Warranties. The Company hereby represents and warrants to
the Collateral Agent as follows:
(a) The Company has the requisite [corporate, partnership or company] power and
authority to enter into this Joinder Agreement and to perform its obligations hereunder and
under the Pledge Agreement and the other Collateral Documents to which it is a party. The
execution, delivery and performance of this Joinder Agreement by the Company and the
performance of its obligations hereunder and under the Pledge Agreement and the other
Collateral Documents have been duly authorized by the [Board of Directors of the Company]
and no other [corporate, partnership or company] proceedings on the part of the Company are
necessary to authorize the execution, delivery or performance of this Joinder Agreement, the
transactions contemplated hereby or the performance of its obligations under the Pledge
Agreement or any other Collateral Document. This Joinder Agreement has been duly executed
and delivered by the Company. This Joinder Agreement, the Pledge Agreement and the other
Collateral Documents each constitutes a legal, valid and binding obligation of the Company
enforceable against it in accordance with its respective terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity.
(b) The representations and warranties set forth in Section 5 of the Pledge
Agreement are true and correct on and as of the date hereof (except to the extent that such
representations and warranties expressly relate to an earlier date) with the same effect as
if made on and as of the date hereof.
SECTION 3. Further Assurances. At any time and from time to time, upon the Collateral
Agent’s request and at the sole expense of the Company, the Company will promptly and duly execute
and deliver any and all further instruments and documents and take such further action as the
Collateral Agent reasonably deems necessary to effect the purposes of this Joinder Agreement.
SECTION 4. Binding Effect. This Joinder Agreement shall be binding upon the Company and
shall inure to the benefit of the Secured Parties and their respective successors and assigns.
SECTION 5. Conflict. In the event of a conflict between this Joinder Agreement and the
Pledge Agreement, the provisions of the Pledge Agreement will govern.
SECTION 6. GOVERNING LAW. THIS JOINDER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF
LAW PRINCIPLES.
[Signature Pages Follow]
Annex II-2
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and
delivered by its duly authorized officer as of the date first above written.
| [NAME OF COMPANY] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Annex II-3
SCHEDULE 1
[Authorized capitalization:
Number of shares of capital stock
outstanding:
Ownership of the outstanding
capital stock:]
or
[General Partners:
Ownership of the
partnership interests:]
or
[Members of the Company:
Ownership of the
limited liability company
interests:]
interests:]
Schedule 1 to Annex II-1
