EXECUTION VERSION
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PLEDGE AGREEMENT
among
TAL INTERNATIONAL CONTAINER CORPORATION,
as PLEDGOR
and
FORTIS CAPITAL CORP., in its capacity as Collateral Agent,
as PLEDGEE
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Dated as of July 31, 2006
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PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, restated, modified and/or supplemented
from time to time, this "Agreement"), dated as of July 31, 2006, between TAL
International Container Corporation (the "Pledgor") and Fortis Capital
Corporation, as collateral agent for the benefit of the Lender Creditors (as
defined below) and as collateral agent for the benefit of all of the Secured
Creditors (as defined below) (in such capacities and (in either case) together
with any successor collateral agent, the "Pledgee"). Except as otherwise defined
herein, all capitalized terms used herein and defined in the Credit Agreement
(as defined below) shall be used herein as therein defined.
WITNESSETH:
WHEREAS, TAL International Container Corporation, a Delaware
corporation (together with its successors and permitted assigns, "TAL" or the
"Borrower"), the lenders from time to time party thereto (the "Lenders"), and
Fortis Capital Corp., as Loan Servicer (together with any successor Loan
Servicer, the "Loan Servicer"), have entered into a Credit Agreement, dated as
of July 31, 2006, providing for the making of Loans to the Borrower (the Lenders
and the Loan Servicer are herein called the "Lender Creditors") (as used herein,
the term "Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may from time to time be amended, modified, extended,
renewed, replaced, restated, supplemented and/or refinanced from time to time,
and including any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) of
all or any portion of, the Obligations under such Credit Agreement);
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Hedging Agreements with one or more Eligible Interest
Rate Hedge Counterparties (collectively, the "Hedging Creditors");
WHEREAS, the Lender Creditors and the Hedging Creditors are
collectively referred to herein as the "Secured Creditors";
WHEREAS, it is a condition precedent to (i) the making of Loans to the
Borrower under the Credit Agreement and (ii) the Hedging Creditors entering into
Interest Rate Hedging Agreements, that the Pledgor shall have executed and
delivered to the Pledgee this Agreement;
WHEREAS, the Pledgor will obtain benefits from the incurrence of Loans
under the Credit Agreement and by entering Interest Rate Hedging Agreements and,
accordingly, desires to execute this Agreement in order to satisfy the
conditions described in the immediately preceding recital and to induce the
Lenders to make Loans to the Borrower and for the Hedging Creditors to enter
into Interest Rate Hedging Agreements with the Borrower;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Pledgor, the receipt and sufficiency of which are hereby
acknowledged, the 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 the Pledgor for
the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation,
principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency, reorganization
or similar proceeding of the 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), reimbursement obligations
for fees, costs and indemnities) of the Pledgor to the Lender
Creditors, whether now existing or hereafter incurred under, arising
out of, or in connection with, the Credit Agreement and the other Loan
Documents to which the Pledgor is a party and the due performance and
compliance by the Pledgor with all of the terms, conditions and
agreements contained in the Credit Agreement and in such other Loan
Documents (all such obligations, liabilities and indebtedness under
this clause (i), except to the extent consisting of obligations or
indebtedness with respect to the Interest Rate Hedging Agreements
being herein collectively, called the "Loan Document Obligations");
(ii) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, all
interest that accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency, reorganization
or similar proceeding of the 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 the Pledgor to
the Hedging Creditors, whether now existing or hereafter incurred
under, arising out of or in connection with any Interest Rate Hedging
Agreement the obligations of which by its terms are required to be
secured by the Collateral, whether such Interest Rate Hedging
Agreement is now in existence or hereinafter arising, and the due
performance and compliance by the Pledgor with all of the terms,
conditions and agreements contained in each such Interest Rate Hedging
Agreement (all such obligations, liabilities and indebtedness under
this clause (ii) being herein collectively called the "Hedging
Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral or preserve its security interest in the
Collateral; and
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of the
Pledgor referred to in clauses (i) through (iii) above, after a
Designated Event of Default shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or
of any exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs;
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all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (iv) 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.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Adverse Claim" shall have the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Borrower" shall have the meaning set forth in the recitals hereto.
"Certificated Security" shall have the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Chassis Trust Interest" shall mean the special unit of beneficial
interest in the Trust created pursuant to the 2006-B SUBI Supplement to Trust
Agreement dated July 31, 2006 between the Pledgor, as settlor and initial
beneficiary, and Xxxxx Fargo Delaware Trust Company, as trustee.
"Collateral" shall have the meaning set forth in Section 3.1 hereof.
"Credit Agreement" shall have the meaning set forth in the recitals
hereto.
"Designated Event of Default" shall mean (i) any Designated Event of
Default under, and as defined in, the Credit Agreement, and (ii) any event of
default (or similar term) by an Assignor under, and as defined in, any Interest
Rate Hedging Agreement, the obligations of which are secured hereunder, entered
into with a Hedging Creditor.
"Domestic Corporation" shall have the meaning set forth in the
definition of "Stock."
"Foreign Corporation" shall have the meaning set forth in the
definition of "Stock".
"Hedging Creditors" shall have the meaning provided in the recitals
hereto.
"Hedging Obligations" shall have the meaning provided in the
definition of "Obligations" in Section 1(ii) hereof.
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"Investment Property" shall have the meaning given such term in
Section 9-102(a)(49) of the UCC.
"Lender Creditors" shall have the meaning set forth in the recitals
hereto.
"Lenders" shall have the meaning set forth in the recitals hereto.
"Loan Document Obligations" shall have the meaning set forth in
Section 1(i) hereof.
"Loan Servicer" shall have the meaning set forth in the recitals
hereto.
"Location" of the Pledgor has the meaning given such term in Section
9-307 of the UCC.
"Obligations" shall have the meaning set forth in Section 1 hereof.
"Pledgee" shall have the meaning set forth in the first paragraph
hereof.
"Pledgor" shall have the meaning set forth in the first paragraph
hereof.
"Proceeds" shall have the meaning given such term in Section
9-102(a)(64) of the UCC.
"Required Secured Creditors" shall have the meaning provided in the
Security Agreement.
"Secured Creditors" shall have the meaning set forth in the recitals
hereto.
"Secured Debt Agreements" shall mean and include this Agreement, the
Credit Agreement, the other Loan Documents and the Interest Rate Hedging
Agreements entered into with a Hedging Creditor.
"Securities Act" shall mean the Securities Act of 1933, as amended, as
in effect from time to time.
"Security" and "Securities" shall have the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock.
"Security Entitlement" shall have the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Stock" shall mean (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof or the District
of Columbia (each, a "Domestic Corporation"), all of the issued and outstanding
shares of capital stock of any Domestic Corporation at any time owned by the
Pledgor and (y) with respect to entities treated as corporations for U.S.
federal income tax purposes but that are 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 the Pledgor.
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"Termination Date" shall have the meaning set forth in the Security
Agreement.
"Trust Assets" shall mean all assets, whether tangible or intangible
and whether real, personal or mixed represented by the Chassis Trust Interest.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time; provided that all references herein to specific
Sections or subsections of the UCC are references to such Sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. (a) The Pledgor does hereby grant unto the Pledgee in its
capacity solely as collateral agent for the equal and ratable benefit of the
Secured Creditors, as security for the prompt payment and performance when due
of all Obligations, a continuing security interest in all of the right, title
and interest of the Pledgor in, to and under all of the following property (and
all rights therein) of the Pledgor, or in which or to which the Pledgor has any
rights, in each case whether now existing or hereafter from time to time
acquired:
(i) The Chassis Trust Interest, including, without limitation, to
the fullest extent permitted under the terms and provisions of the
documents and agreements governing such Chassis Trust Interest and
applicable law:
(A) all its capital therein and its interest in all profits,
income, surpluses, losses, Trust Assets and other distributions to
which the Pledgor shall at any time be entitled in respect of such
Chassis Trust Interest;
(B) all other payments due or to become due to the Pledgor in
respect of the Chassis Trust Interest, whether under any trust
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
trust agreement, or at law or otherwise in respect of such Chassis
Trust Interest;
(D) all present and future claims, if any, of the Pledgor against
any such trust for monies loaned or advanced, for services rendered or
otherwise;
(E) all of the Pledgor's rights under any trust agreement or
operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of the Pledgor relating
to such Chassis Trust Interest, including any power to terminate,
cancel or modify any trust agreement, to execute any instruments and
to take any and all other action on behalf of and in the name of the
Pledgor in respect of such Chassis Trust Interest and any such trust,
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
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Trust 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
(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; and
(b) all Proceeds of any and all of the foregoing;
all of the foregoing, to the extent now existing or hereinafter from time to
time acquired, collectively the "Collateral".
3.2 Procedures. (a) To the extent that the 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 the Pledgor) be pledged pursuant to Section 3.1 of this Agreement.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, the Pledgor shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of the 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), the
Pledgor shall take all actions as may be requested from time to time
by the Pledgee so that "control" of such Collateral is obtained and at
all times held by the Pledgee; and
(ii) the Pledgor shall from time to time cause appropriate
financing statements (on appropriate forms) under the Uniform
Commercial Code as in effect in the various relevant states, covering
all Collateral hereunder (with the form of such financing statements
to be satisfactory to the Pledgee), to be filed in the relevant filing
offices so that at all times the Pledgee's security interest in all
Investment Property and other Collateral which can be perfected by the
filing of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the laws of the
relevant states, including, without limitation, Section 9-312(a) of
the UCC) is so perfected.
(c) The Pledgee in its sole capacity as collateral agent for the
benefit of the Secured Creditors with respect to the Obligations hereby
agrees and acknowledges that, to the extent that it has possession or will
have possession of any Collateral, it has acquired or will acquire
possession of Collateral and shall hold such Collateral on behalf of itself
as well as on behalf of the Secured Creditors, in accordance with Sections
8-301(a)(2), 9-313(a) and 9-313(c) of the UCC.
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3.3 Subsequently Acquired Collateral. If the Pledgor shall acquire (by
purchase, stock dividend, distribution or otherwise) any additional Collateral
at any time or from time to time after the date hereof, (i) such Collateral
shall automatically (and without any further action being required to be taken)
be subject to the pledge and security interests created pursuant to Section 3.1
hereof, (ii) the Pledgor will thereafter take (or cause to be taken) all action
(as promptly as practicable and, in any event, within 10 Business Days (or such
longer period if consented to by the Pledgee in writing in its sole discretion)
after it obtains such Collateral) with respect to such Collateral in accordance
with the procedures set forth in Section 3.2 hereof, and (iii) the Pledgor will
promptly thereafter deliver to the Pledgee (x) a certificate executed by an
authorized officer of the 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 (y) supplements to Annex A hereto as are
necessary to cause such Annex 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.
The Pledgor represents and warrants that on the date hereof the Chassis Trust
Interest pledged hereunder held by the Pledgor consists of the interests and
assets described in Annex A hereto.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
have the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Collateral, which may be held (in the discretion of
the Pledgee) in the name of the relevant Pledgor, endorsed or assigned in blank
or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO DESIGNATED EVENT OF DEFAULT. Unless and
until there shall have occurred and be continuing any Designated Event of
Default, the Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Collateral owned by it, and to give
consents, waivers or ratifications in respect thereof; provided that, in each
case, no vote shall be cast or any consent, waiver or ratification given or any
action taken or omitted to be taken which would violate, result in a breach of
any covenant contained in, or be inconsistent with any of the terms of any
Secured Debt Agreement, or which could reasonably be expected to have the effect
of 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, unless expressly permitted by the terms of the Secured Debt
Agreements. All such rights of the Pledgor to vote and to give consents, waivers
and ratifications shall cease in case a Designated Event of Default has occurred
and is continuing, and the Pledgee chooses to exercise the rights granted to it
pursuant to Section 7 hereof.
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 Pledgor. The Pledgee shall be entitled to
receive directly, and to retain as part of the Collateral:
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(i) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash
dividends other than as set forth above) paid or distributed by way of
dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash
(although such cash may be paid directly to the Pledgor so long as no
Event of Default then exists)) paid or distributed in respect of the
Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash)
which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate or other reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive the proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments which are received by the Pledgor contrary to the provisions of
this Section 6 or Section 7 hereof shall be received in trust for the benefit of
the Pledgee, shall be segregated from other property or funds of the 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 A DESIGNATED EVENT OF DEFAULT. (a) If there
shall have occurred and be continuing a Designated Event of Default, then and in
every such case, the Pledgee shall be entitled to exercise all of the rights,
powers and remedies (whether vested in it by this Agreement, 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 UCC as in effect in any
relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which the 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 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 vote (and exercise all rights and powers in respect of
voting) all or any part of the Collateral (whether or not transferred
into the name of the Pledgee) and give all consents, waivers and
ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (the
Pledgor hereby irrevocably constituting and appointing the
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Pledgee the proxy and attorney-in-fact of the Pledgor, with full power
of substitution to do so);
(iv) 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 the Pledgor), for cash, on credit or for other property, for
immediate or future delivery without any assumption of credit risk,
and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine, provided at least 10 days written
notice of the time and place of any such sale shall be given to the
respective Pledgor. The Pledgee shall not be obligated to make any
such sale of Collateral regardless of whether any such notice of sale
has theretofore been given. The 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 or the Obligations or otherwise. At any such sale,
unless prohibited by applicable law, the Pledgee on behalf of the
Secured Creditors may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any other Secured Creditor shall be liable for
failure to collect or realize upon any or all of the Collateral or for
any delay in so doing nor shall any of them be under any obligation to
take any action whatsoever with regard thereto; and
(v) to set off any and all Collateral against any and all
Obligations.
(b) If there shall have occurred and be continuing any Designated
Event of Default, then and in every such case, the Pledgee shall be
entitled to vote (and exercise all rights and powers in respect of voting)
all or any part of the Collateral (whether or not transferred into the name
of the Pledgee) and give all consents, waivers and ratifications in respect
of the Collateral and otherwise act with respect thereto as though it were
the outright owner thereof (the Pledgor hereby irrevocably constituting and
appointing the Pledgee the proxy and attorney-in-fact of the Pledgor, with
full power of substitution to do so).
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and remedy
of the Pledgee provided for in this Agreement or in any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. Notice to or demand on
the Pledgor in any case shall entitle it to any other or further notice or
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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.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of any Collateral pursuant to the enforcement
of this Agreement or the exercise of any of the remedial provisions hereof,
together with all monies received by the Pledgee hereunder in respect of the
Collateral (including all monies received in respect of post-petition interest)
as a result of any such enforcement or the exercise of any such remedial
provisions or as a result of any distribution of any Collateral upon the
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding involving the readjustment of the obligations
and indebtedness of the Pledgor, or the application of any Collateral to the
payment thereof or any distribution of Collateral upon the liquidation or
dissolution of the Pledgor, or the winding up of the assets or business of the
Pledgor or under any insurance policies insuring any of the Collateral, shall be
applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that the Pledgor shall remain liable
with respect to its Obligations to the extent of any deficiency between the
amount of the proceeds of the Collateral pledged by it hereunder and the
aggregate amount of such Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. PLEDGEE NOT OBLIGATED.
(a) The Pledgee and the other Secured Creditors shall not be obligated
to perform or discharge any obligation of the Pledgor as a result of the
pledge hereby effected.
(b) 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.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor agrees that
it will join with the Pledgee in executing and, at the Pledgor's own expense,
file and refile under the UCC or other applicable law such financing statements,
continuation statements and other documents, in form reasonably acceptable to
the Pledgee, in such offices as the
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Pledgee (acting on its own or on the instructions of the Required Secured
Creditors) may reasonably deem necessary or appropriate and wherever required or
permitted by law in order to perfect and preserve the Pledgee's security
interest in the Collateral hereunder and hereby authorizes the Pledgee to file
financing statements and amendments thereto relative to all or any part of the
Collateral (including, without limitation, financing statements which list the
Collateral specifically and/or "all assets" as collateral) without the signature
of the Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments (including updated Annexes hereto, when
applicable) as the Pledgee may reasonably require or deem advisable to carry
into effect the purposes of this Agreement or to further assure and confirm unto
the Pledgee its rights, powers and remedies hereunder or thereunder.
(b) The Pledgor hereby constitutes and appoints the Pledgee its true
and lawful attorney-in-fact, irrevocably, with full authority in the place
and stead of the Pledgor and in the name of the Pledgor or otherwise, from
time to time after the occurrence and during the continuance of a
Designated Event of Default, in the Pledgee's discretion, to act, require,
demand, receive and give acquittance for any and all monies and claims for
monies due or to become due to the Pledgor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute
any proceedings and to execute any instrument which the Pledgee may deem
necessary or advisable to accomplish the purposes of this Agreement, which
appointment as attorney is coupled with an interest.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood, acknowledged and agreed by
each Secured Creditor that by accepting the benefits of this Agreement each such
Secured Creditor acknowledges and agrees that the obligations of the Pledgee as
holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement and in Section 14 of the Credit Agreement.
The Pledgee shall act hereunder on the terms and conditions set forth herein, in
Section 14 of the Credit Agreement.
14. TRANSFER BY THE PLEDGOR. Except as permitted pursuant to the
Secured Debt Agreements, Pledgor will not 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.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. (a) The
Pledgor represents, warrants and covenants as to itself and each of its
Subsidiaries that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all of its Collateral 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
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encumbrance whatsoever, except the liens and security interests
created by this Agreement);
(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 the Pledgor and constitutes a legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in
accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equitable principles
(regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no consent of
any other party (including, without limitation, any stockholder,
partner, member or creditor of the 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 the Pledgor in connection with (a) the execution, delivery
or performance of this Agreement by the Pledgor, (b) the validity or
enforceability of this Agreement against the Pledgor (except as set
forth in clause (iii) above), (c) the perfection or enforceability of
the Pledgee's security interest in the Pledgor's Collateral or (d)
except for compliance with or as may be required by applicable laws,
the exercise by the Pledgee of any of its rights or remedies provided
herein;
(v) all of the Pledgor's Collateral has been duly and validly
issued, is fully paid and non-assessable and is subject to no options
to purchase or similar rights;
(vi) the pledge, collateral assignment and delivery to the
Pledgee of the Pledgor's Collateral consisting of Certificated
Securities pursuant to this Agreement creates a valid and perfected
first priority security interest in such Certificated Securities, 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 the Pledgor which would
include the Securities (other than the liens and security interests
permitted under the Secured Debt Agreements then in effect) and the
Pledgee is entitled to all the rights, priorities and benefits
afforded by the UCC or other relevant law as enacted in any relevant
jurisdiction to perfect security interests in respect of such
Collateral; and
(vii) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all of the Pledgor's Collateral
consisting of 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
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not yet arisen under this Agreement; provided that in the case of the
Pledgee obtaining "control" over Collateral consisting of a Security
Entitlement, the Pledgor shall have taken all steps in its control so
that the Pledgee obtains "control" over such Security Entitlement.
(b) The Pledgor covenants and agrees that it will defend the Pledgee's
right, title and security interest in and to the Pledgor's Collateral and
the proceeds thereof against the claims and demands of all persons
whomsoever; and the 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 the Pledgor as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the
Pledgee and the other Secured Creditors.
16. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of the
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 or release of
Collateral pursuant to Section 18 hereof), including, without limitation:
(a) 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;
(b) 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,
extension, indulgence or other action or inaction with respect to this
Agreement in accordance with its terms);
(c) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee;
(d) 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
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
the Pledgor or any Subsidiary of the 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 the Pledgor shall have notice or
knowledge of any of the foregoing.
17. SALE OF COLLATERAL WITHOUT REGISTRATION. If at any time when the
Pledgee shall determine to exercise its right to sell all or any part of the
Collateral pursuant to Section 7 hereof, and such Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively registered under
the Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or
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advisable in order that such sale may legally be effected without such
registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, may in good xxxxx
xxxx reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until the
registration as aforesaid.
18. TERMINATION; RELEASE. (a) On the Termination Date, this Agreement
shall terminate and the Pledgee, at the request and expense of the Pledgor, will
execute if necessary and deliver to the Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement
(including, without limitation, UCC termination statements and instruments of
satisfaction, discharge and/or reconveyance), and will duly release from the
security interest created hereby and assign, transfer and deliver to the 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.
(b) In the event that any part of the Collateral is sold or otherwise
disposed of (to a Person other than a Borrower or any of its Affiliates) in
connection with a sale or other disposition permitted by the respective
Secured Debt Agreements or is otherwise released at the direction of the
Required Secured Creditors, the Pledgee will duly release from the security
interest created hereby (and, at the request, cost and expense of the
Pledgor, will execute and deliver such documentation, including termination
or partial release statements and the like in connection therewith) and
assign, transfer and deliver to the Pledgor (without recourse and without
any representation or warranty) such of the Collateral as is then being (or
has been) so sold or otherwise disposed of, or released, and as may be in
the possession of the Pledgee and has not theretofore been released
pursuant to this Agreement.
(c) At any time that the Pledgor desires that Collateral be released
as provided in the foregoing Section 18(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 a Senior Designated Officer of the
Pledgor stating that the release of the respective Collateral is permitted
pursuant to Section 18(a) or (b) hereof.
(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 18.
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19. 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 the Pledgor shall not be
effective until received by the Pledgee or the Pledgor, as the case may be. All
notices and other communications shall be in writing and addressed as set forth
in the Credit Agreement.
20. WAIVER; AMENDMENT. Except as provided in Section 28 hereof, none
of the terms and conditions of this Agreement may be changed, waived, modified
or varied in any manner whatsoever except in accordance with the requirements
specified in the Security Agreement.
21. SUCCESSORS AND ASSIGNS. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect, subject to release and/or termination as set forth in Section 18, (ii)
be binding upon the Pledgor, its successors and assigns; provided, however, that
Pledgor shall not assign any of its rights or obligations hereunder without the
prior written consent of the Pledgee (with the prior written consent of the
Required Secured Creditors), and (iii) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Creditors and their respective successors, transferees and assigns. All
agreements, statements, representations and warranties made by the Pledgor
herein or in any certificate or other instrument delivered by the Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
22. 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.
23. 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 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, THE
PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. THE PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK PERSONAL JURISDICTION OVER THE PLEDGOR, AND AGREES NOT TO PLEAD OR
CLAIM IN ANY LEGAL ACTION OR PROCEEDING
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WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY
SUCH COURT LACKS PERSONAL JURISDICTION OVER THE PLEDGOR. THE 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 THE PLEDGOR AT ITS ADDRESS
FOR NOTICES AS PROVIDED IN SECTION 19 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. THE 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
THE PLEDGOR IN ANY OTHER JURISDICTION.
(b) THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE
(a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
24. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that the 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 the Pledgor under or with respect to any Collateral.
25. 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 the Pledgor and the
Pledgee. Delivery of an executed counterpart of this Agreement by facsimile or
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by electronic means shall be equally effective as of the delivery of an
originally executed counterpart.
26. 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.
27. RECOURSE. This Agreement is made with full recourse to the Pledgor
and pursuant to and upon all the representations, warranties, covenants and
agreements on the part of the Pledgor contained herein and in the other Secured
Debt Agreements.
28. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the Credit Agreement or
any other Loan Document, shall become the Pledgor hereunder by (x) executing a
counterpart hereof and delivering same to the Pledgee, (y) delivering
supplements to Annex A hereto as are necessary to cause such annex to be
complete and accurate with respect to such additional Pledgor on such date and
(z) taking all actions as specified in this Agreement as would have been taken
by the 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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IN WITNESS WHEREOF, the 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.
TAL INTERNATIONAL CONTAINER CORPORATION,
(f/k/a Transamerica Leasing, Inc.), as
the Pledgor
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
PLEDGE AGREEMENT
Accepted and Agreed to:
FORTIS CAPITAL CORP.,
as Collateral Agent for the Secured Creditors
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
PLEDGE AGREEMENT
ANNEX A
to
PLEDGE AGREEMENT
SCHEDULE OF CHASSIS TRUST INTEREST
2006-B SUBI Supplement to Trust Agreement dated as of July 31, 2006
Table of Contents
Page
----
1. SECURITY FOR OBLIGATIONS................................................. 2
2. DEFINITIONS.............................................................. 3
3. PLEDGE OF SECURITIES, ETC................................................ 5
3.1 Pledge............................................................ 5
3.2 Procedures........................................................ 6
3.3 Subsequently Acquired Collateral.................................. 7
3.4 Transfer Taxes.................................................... 7
3.5 Certain Representations and Warranties Regarding the Collateral... 7
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC............................. 7
5. VOTING, ETC., WHILE NO DESIGNATED EVENT OF DEFAULT....................... 7
6. DIVIDENDS AND OTHER DISTRIBUTIONS........................................ 7
7. REMEDIES IN CASE OF A DESIGNATED EVENT OF DEFAULT........................ 8
8. REMEDIES, CUMULATIVE, ETC................................................ 9
9. APPLICATION OF PROCEEDS.................................................. 10
10. PURCHASERS OF COLLATERAL................................................. 10
11. PLEDGEE NOT OBLIGATED.................................................... 10
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY.................................... 10
13. THE PLEDGEE AS COLLATERAL AGENT.......................................... 11
14. TRANSFER BY THE PLEDGOR.................................................. 11
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR................. 11
16. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC...................................... 13
Table of Contents (cont'd)
Page
----
17. SALE OF COLLATERAL WITHOUT REGISTRATION.................................. 13
18. TERMINATION; RELEASE..................................................... 14
19. NOTICES, ETC............................................................. 15
20. WAIVER; AMENDMENT........................................................ 15
21. SUCCESSORS AND ASSIGNS................................................... 15
22. HEADINGS DESCRIPTIVE..................................................... 15
23. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL... 15
24. PLEDGOR'S DUTIES......................................................... 16
25. COUNTERPARTS............................................................. 16
26. SEVERABILITY............................................................. 17
27. RECOURSE................................................................. 17
28. ADDITIONAL PLEDGORS...................................................... 17
ANNEX A - SCHEDULE OF CHASSIS TRUST INTEREST
