TERM LOAN PLEDGE AGREEMENT
Exhibit 10.4
TERM LOAN PLEDGE AGREEMENT (this “Agreement”) dated as of January 31, 2007 among XxXxxxxx
Corporation, a West Virginia corporation (the “Borrower”), each of the Subsidiaries of the
Borrower listed on the signature pages hereto (each such Subsidiary being a “Subsidiary
Pledgor” and, collectively, the “Subsidiary Pledgors”; the Subsidiary Pledgors and the
Borrower are referred to collectively as the “Pledgors”) and Xxxxxx Commercial Paper Inc.,
as Collateral Agent (in such capacity, the “Collateral Agent”) under the Credit Agreement
(as defined below) for the benefit of the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower is party to the Term Loan Credit Agreement dated as of January 31, 2007
(as the same may be amended, restated, supplemented or otherwise modified, refinanced or replaced
from time to time, the “Credit Agreement”) among the Borrower, the lending institutions
from time to time party thereto (the “Lenders”), Xxxxxx Commercial Paper Inc., as
Administrative Agent and as Collateral Agent, pursuant to which (1) the Lenders have severally
agreed to make Loans to the Borrower upon the terms and subject to the conditions set forth
therein, and (2) one or more Lenders or affiliates of Lenders may from time to time enter into
Hedge Agreements with the Borrower (the items in clauses (1) and (2) collectively, the
“Extensions of Credit”);
WHEREAS, pursuant to the Guarantee, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “Guarantee”), each of the
Subsidiary Pledgors, have agreed to unconditionally and irrevocably guarantee, as primary obligor
and not merely as surety, to the Collateral Agent, for the ratable benefit of the Secured Parties,
the prompt and complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations (as defined below);
WHEREAS, each Subsidiary Pledgor is a Subsidiary Guarantor;
WHEREAS, the proceeds of the Extensions of Credit will be used in part to enable the Borrower
to make valuable transfers to the Subsidiary Pledgors in connection with the operation of their
respective businesses;
WHEREAS, each Pledgor acknowledges that it will derive substantial direct and indirect benefit
from the making of the Extensions of Credit;
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement that the Borrower and the
Subsidiary Pledgors shall have executed and delivered this Agreement to the Collateral Agent for
the ratable benefit of the Secured Parties;
WHEREAS, (a) Each of the Pledgors is the legal and beneficial owner of the Equity Interests
(as defined below) described in Schedule 1 hereto and issued by the entities named therein (such
Equity Interests, together with all other Equity Interests required to be
pledged hereunder (the “After-acquired Shares”), are referred to collectively herein
as the “Pledged Shares”), and (b) each of the Pledgors is the legal and beneficial owner of
the Indebtedness (the “Pledged Debt”) described in Schedule 1 hereto and issued by the
entities named therein, in each case as such schedule may be amended or supplemented pursuant to
Section 9.12 of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, the
Collateral Agent, the Syndication Agent, and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Extensions of Credit to the Borrower under the Credit
Agreement and to induce one or more Lenders or affiliates of Lenders to enter into Hedge Agreements
with the Borrower, the Pledgors hereby agree with the Collateral Agent, for the benefit of the
Secured Parties, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, all capitalized terms used herein (including the preamble
and recitals hereto) and not otherwise defined herein shall have the meanings given to them in the
Credit Agreement or, if not defined therein, in the UCC.
(b) The following terms shall have the following meanings:
“After-acquired Shares” shall have the meaning assigned to such term in the recitals
hereto.
“Agreement” shall have the meaning assigned to such term in the preamble hereto.
“Borrower” shall have the meaning assigned to such term in the preamble hereto.
“Collateral” shall have the meaning provided in Section 2 hereof.
“Collateral Agent” shall have the meaning assigned to such term in the preamble
hereto.
“Credit Agreement” shall have the meaning assigned to such term in the recitals
hereto.
“Equity Interests” shall mean, collectively, Stock and Stock Equivalents.
“Extensions of Credit” shall have the meaning assigned to such term in the recitals
hereto.
“Lender Counterparty” means each Lender or any Affiliate of a Lender that is a
counterparty to a Hedge Agreement (including any Person that ceases to be a Lender (or any
Affiliate thereof) (a) on the date such Lender becomes a party to the Credit Agreement or (b) as of
the date such Hedge Agreement was entered into.
“Lenders” shall have the meaning assigned to such term in the recitals hereto.
“Obligations” shall mean the collective reference to (i) the due and punctual payment
of (x) the principal of and premium, if any, and interest at the applicable rate provided in the
Credit Agreement (including interest at the contract rate applicable upon default accrued or
accruing after the commencement of any proceeding, under the Bankruptcy Code or any applicable
provision of comparable state or foreign law, whether or not such interest is an allowed claim in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (y) each payment required to be made by any Borrower
under the Credit Agreement, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and (z) all other
monetary obligations, including fees, costs, payments for early termination of Hedge Agreements,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any proceeding under the Bankruptcy
Code or any applicable provision of comparable state or foreign law, whether or not such interest
is an allowed claim in such proceeding), of any Borrower or any other Credit Party to any of the
Secured Parties under the Credit Agreement and any other Credit Documents, (ii) the due and
punctual performance of all covenants, agreements, obligations and liabilities of the Borrower
under or pursuant to the Credit Agreement and the other Credit Documents, (iii) the due and
punctual payment and performance of all the covenants, agreements, obligations and liabilities of
each other Credit Party under or pursuant to this Agreement or the other Credit Documents and (iv)
the due and punctual payment and performance of all obligations of each Credit Party under each
Hedge Agreement that (x) is in effect on the Closing Date with a counterparty that is a Lender or
an affiliate of a Lender as of the Closing Date or (y) is entered into after the Closing Date with
any counterparty that is a Lender or an affiliate of a Lender at the time such Hedge Agreement is
entered into.
“Pledged Debt” shall have the meaning assigned to such term in the recitals hereto.
“Pledged Shares” shall have the meaning assigned to such term in the recitals hereto.
“Pledgors” shall have the meaning assigned to such term in the preamble hereto.
“Proceeds” shall mean: (i) all “proceeds” as defined in Article 9 of the UCC and (ii)
whatever is receivable or received when Collateral or proceeds are sold, exchanged, collected or
otherwise disposed of, whether such disposition is voluntary or involuntary, including proceeds of
any indemnity or guarantee payable to any Pledgor or the Collateral Agent from time to time with
respect to any of the Collateral.
“Secured Parties” shall mean, collectively, (i) the Lenders, (ii) the Administrative
Agent, (iii) the Collateral Agent, (iv) the Syndication Agent, (v) each Lender Counterparty party
to a Hedge Agreement the obligations under which constitute Obligations, (vi) the beneficiaries
of each indemnification obligation undertaken by any Credit Party under the Credit Documents
and (vii) any successors, indorsees, transferees and assigns of each of the foregoing.
“Subsidiary Pledgors” shall have the meaning assigned to such term in the preamble
hereto.
“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the
State of New York; provided, however, that, in the event that, by reason of mandatory
provisions of law, any of the attachment, perfection or priority of the Collateral Agent’s and the
Secured Parties’ security interest in any Collateral is governed by the Uniform Commercial Code as
in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of definitions related
to such provisions.
(c) References to “Lenders” in this Agreement shall be deemed to include affiliates of Lenders
that may from time to time enter into Hedge Agreements with the Borrower.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to Sections of this Agreement unless otherwise specified.
The words “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation.”
(e) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
SECTION 2. Grant of Security. Each Pledgor hereby transfers, assigns and pledges to
the Collateral Agent, for the ratable benefit of the Secured Parties, and grants to the Collateral
Agent, for the benefit of the Secured Parties, a security interest in and continuing lien on all of
such Pledgor’s right, title and interest in, to and under the following, whether now owned or
existing or at any time hereafter acquired or existing or arising (collectively, the
“Collateral”):
(a) the Pledged Shares held by such Pledgor and the certificates representing such
Pledged Shares and any interest of such Pledgor in the entries on the books or records of
the issuer of such Pledged Shares or on the books or records of any financial intermediary
pertaining to such Pledged Shares and all dividends, cash, warrants, rights, instruments and
other property or proceeds from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the Pledged Shares;
(b) the Pledged Debt and the instruments evidencing the Pledged Debt owed to such
Pledgor, and all interest, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange for any or
all of such Pledged Debt; and
(c) to the extent not covered by clauses (a) and (b) above, respectively, all Proceeds of any
or all of the foregoing Collateral.
SECTION 3. Security for Obligations. This Agreement secures the payment of all the
Obligations. Without limiting the generality of the foregoing, this Agreement secures the payment
of all amounts that constitute part of the Obligations and would be owed to the Collateral Agent or
the Secured Parties under the Credit Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving any
Pledgor.
SECTION 4. Delivery of the Collateral. All original stock certificates or
instruments, if any, representing or evidencing the Collateral shall be promptly delivered to and
held by or on behalf of the Collateral Agent pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to the Collateral Agent.
The Collateral Agent shall have the right, at any time after the occurrence and during the
continuance of an Event of Default and with notice to the relevant Pledgor, to transfer to or to
register in the name of the Collateral Agent or any of its nominees any or all of the Pledged
Shares. Each delivery of Collateral (including any After-acquired Shares) shall be accompanied by
a schedule describing the securities theretofore and then being pledged hereunder, which shall be
attached hereto as part of Schedule 1 and made a part hereof; provided that the failure to
deliver or attach any such schedule hereto shall not affect the validity of such pledge of such
securities; provided, further, that the failure by the Collateral Agent to attach
any schedule so delivered shall not constitute a Default or Event of Default hereunder or under any
other Credit Document . Each schedule so delivered shall supersede any prior schedules so
delivered.
SECTION 5. Representations and Warranties. Each Pledgor represents and warrants to
the Collateral Agent and each other Secured Party as follows:
(a) Schedule 1 hereto (i) correctly represents as of the Closing Date (A) the issuer, the
certificate number, the Pledgor and the record and beneficial owner, the number and class and the
percentage of the issued and outstanding Equity Interests of such class of all Pledged Shares and
(B) the issuer, the initial principal amount, the Pledgor and holder, date of issuance and maturity
date of all Pledged Debt, and (ii) together with the comparable schedule to each supplement hereto,
accurately and completely describes all Equity Interests, debt securities and promissory notes
required to be pledged hereunder. Except as set forth on Schedule 1, the Pledged Shares represent
all (or 65% in the case of pledges of Foreign Subsidiaries) of the issued and outstanding Equity
Interests of each class of Equity Interests in the issuer on the Closing Date.
(b) Such Pledgor is the legal and beneficial owner of the Collateral pledged or assigned by
such Pledgor hereunder, free and clear of any Lien, except for the Lien created by this Agreement.
(c) As of the Closing Date, the Pledged Shares pledged by such Pledgor hereunder have been
duly authorized and validly issued and, in the case of Pledged Shares issued by a corporation, are
fully paid and non-assessable.
(d) As of the Closing Date, all of the Pledged Debt, to the knowledge of such Pledgor only
with respect to Pledged Debt owed by an issuer other than a Subsidiary of a Pledgor, has been duly
authorized, authenticated or issued, and delivered, and is the legal, valid and binding obligation
of the issuers thereof and is not in default.
(e) The execution and delivery by such Pledgor of this Agreement and the pledge of the
Collateral pledged by such Pledgor hereunder pursuant hereto create a legal, valid and enforceable
security interest in such Collateral and, upon the earlier of (i) delivery of such Collateral to
the Collateral Agent in the State of New York or (ii) the filing of all UCC financing statements
naming each Pledgor as “debtor” and the Collateral Agent as “secured party” and describing the
Collateral in the filing offices set forth opposite such Pledgor’s name on Schedule 5(e) hereto,
shall constitute a fully perfected Lien on and first priority security interest in the Collateral,
securing the payment of the Obligations, in favor of the Collateral Agent for the benefit of the
Secured Parties, except as enforceability thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors’ rights generally and subject to general principles of equity.
(f) Such Pledgor has full power, authority and legal right to pledge all the Collateral
pledged by such Pledgor pursuant to this Agreement, and this Agreement constitutes a legal, valid
and binding obligation of each Pledgor, enforceable in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and subject to general principles of equity.
SECTION 6. Certification of Limited Liability Company, Limited Partnership Interests and
Pledged Debt. (a) The Equity Interests in any Domestic Subsidiary that is organized as a
limited liability company or limited partnership and pledged hereunder shall be represented by a
certificate and in the organizational documents of such Domestic Subsidiary, the applicable Pledgor
shall cause the issuer of such interests to elect to treat such interests as a “security” within
the meaning of Article 8 of the UCC of its jurisdiction of organization or formation, as
applicable, by including in its organizational documents language substantially similar to the
following and, accordingly, such interests shall be governed by Article 8 of the UCC:
“The Partnership/Company hereby irrevocably elects that all membership interests in
the Partnership/Company shall be securities governed by Article 8 of the Uniform
Commercial Code of [jurisdiction of organization or formation, as applicable]. Each
certificate evidencing partnership/membership interests in the Partnership/Company
shall bear the following legend: “This certificate evidences an interest in [name
of Partnership/LLC] and shall be a security for purposes of Article 8 of the Uniform
Commercial Code.” No change to this provision shall be effective until all
outstanding certificates have been surrendered for cancellation and any new
certificates thereafter issued shall not bear the foregoing legend.”
(b) Each Pledgor will cause any Indebtedness for borrowed money in an aggregate principal
amount exceeding $5,000,000 owed to such Pledgor to be evidenced by a duly executed promissory note
that is pledged and delivered to the Collateral Agent pursuant to the terms hereof.
SECTION 7. Further Assurances. Each Pledgor agrees that at any time and from time to
time, at the expense of such Pledgor, it will promptly execute or otherwise authorize the filing of
any and all further documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which may be required under any applicable law, or
which the Collateral Agent or the Administrative Agent may reasonably request, in order (x) to
perfect and protect any pledge, assignment or security interest granted or purported to be granted
hereby (including the priority thereof) or (y) to enable the Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
SECTION 8. Voting Rights; Dividends and Distributions; Etc. (a) So long as no 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 pertaining to the Collateral or any part thereof for any purpose not prohibited by
the terms of this Agreement or the other Credit Documents.
(ii) The Collateral Agent shall execute and deliver (or cause to be executed and
delivered) to each Pledgor all such proxies and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to exercise the voting and other
rights that it is entitled to exercise pursuant to paragraph (i) above.
(b) Subject to paragraph (c) below, each Pledgor shall be entitled to receive and retain and
use, free and clear of the Lien created by this Agreement, any and all dividends, distributions,
principal and interest made or paid in respect of the Collateral to the extent permitted by the
Credit Agreement, as applicable; provided, however, that any and all noncash
dividends, interest, principal or other distributions that would constitute Pledged Shares or
Pledged Debt, whether resulting from a subdivision, combination or reclassification of the
outstanding Equity Interests of the issuer of any Pledged Shares or received in exchange for
Pledged Shares or Pledged Debt or any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party
or otherwise, shall be, and shall be forthwith delivered to the Collateral Agent to hold as,
Collateral and shall, if received by such Pledgor, be received in trust for the benefit of the
Collateral Agent, be segregated from the other property or funds of such Pledgor and be forthwith
delivered to the Collateral Agent as Collateral in the same form as so received (with any necessary
indorsement).
(c) Upon written notice to a Pledgor by the Collateral Agent following the occurrence and
during the continuance of an Event of Default,
(i) all rights of such Pledgor to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise pursuant to Section
8(a)(i) shall cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall thereupon have the sole right to exercise or refrain from exercising such
voting and other consensual rights during the continuance of such Event of Default,
provided that, unless otherwise directed by the Required Lenders, the Collateral
Agent shall have the right from time to time following the occurrence and
during the continuance of an Event of Default to permit the Pledgors to exercise such
rights. When no Events of Default are continuing and the Borrower has delivered to the
Collateral Agent a certificate to that effect, or after all Events of Default have been
cured or waived pursuant to Section 12 or Section 14.1 of the Credit Agreement, as
applicable, each Pledgor shall have the right to exercise the voting and consensual rights
that such Pledgor would otherwise be entitled to exercise pursuant to the terms of Section
8(a)(i) (and the obligations of the Collateral Agent under Section 8(a)(ii) shall be
reinstated);
(ii) all rights of such Pledgor to receive the dividends, distributions and principal
and interest payments that such Pledgor would otherwise be authorized to receive and retain
pursuant to Section 8(b) shall cease, and all such rights shall thereupon become vested in
the Collateral Agent, which shall thereupon have the sole right to receive and hold as
Collateral such dividends, distributions and principal and interest payments during the
continuance of such Event of Default. When no Events of Default are continuing and the
Borrower has delivered to the Collateral Agent a certificate to that effect, or after all
Events of Default have been cured or waived pursuant to Section 12 or Section 14.1 of the
Credit Agreement, as applicable, the Collateral Agent shall repay to each Pledgor (without
interest) all dividends, distributions and principal and interest payments that such Pledgor
would otherwise be permitted to receive, retain and use pursuant to the terms of Section
8(b);
(iii) all dividends, distributions and principal and interest payments that are
received by such Pledgor contrary to the provisions of Section 8(b) shall be received in
trust for the benefit of the Collateral Agent, shall be segregated from other property or
funds of such Pledgor and shall forthwith be delivered to the Collateral Agent as Collateral
in the same form as so received (with any necessary indorsements); and
(iv) in order to permit the Collateral Agent to receive all dividends, distributions
and principal and interest payments to which it may be entitled under Section 8(b) above, to
exercise the voting and other consensual rights that it may be entitled to exercise pursuant
to Section 8(c)(i) above, and to receive all dividends, distributions and principal and
interest payments that it may be entitled to under Sections 8(c)(ii) and (c)(iii) above,
such Pledgor shall from time to time execute and deliver to the Collateral Agent appropriate
proxies, dividend payment orders and other instruments as the Collateral Agent may
reasonably request in writing.
SECTION 9. Transfers and Other Liens; Additional Collateral; Etc. Each Pledgor shall:
(a) not (i) except as permitted by the Credit Agreement sell or otherwise dispose of,
or grant any option or warrant with respect to, any of the Collateral or (ii) create or
suffer to exist any consensual Lien upon or with respect to any of the Collateral, except
for the Lien created by this Agreement, provided that in the event such Pledgor
sells or otherwise disposes of assets as permitted by the Credit Agreement, and such assets
are or include any of the Collateral, the Collateral Agent shall release such Collateral to
such Pledgor free and clear of the Lien created by this Agreement concurrently with the
consummation of such sale;
(b) pledge and, if applicable, cause each Domestic Subsidiary to pledge, to the
Collateral Agent for the ratable benefit of the Secured Parties, immediately upon
acquisition thereof, all the Equity Interests and all evidence of Indebtedness held or
received by such Pledgor or Domestic Subsidiary required to be pledged hereunder pursuant to
Section 9.12 of the Credit Agreement, in each case pursuant to a supplement to this
Agreement substantially in the form of Annex A hereto (it being understood that the
execution and delivery of such a supplement shall not require the consent of any Pledgor
hereunder and that the rights and obligations of each Pledgor hereunder shall remain in full
force and effect notwithstanding the addition of any new Subsidiary Pledgor as a party to
this Agreement); and
(c) defend its and the Collateral Agent’s title or interest in and to all the
Collateral (and in the Proceeds thereof) against any and all Liens (other than the Lien
created by this Agreement), however arising, and any and all Persons whomsoever.
SECTION 10. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor hereby
appoints, which appointment is irrevocable and coupled with an interest, the Collateral Agent as
such Pledgor’s attorney-in-fact, with full authority in the place and stead of such Pledgor and in
the name of such Pledgor or otherwise, to take any action and to execute any instrument, in each
case after the occurrence and during the continuance of an Event of Default, that the Collateral
Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement,
including to receive, indorse and collect all instruments made payable to such Pledgor representing
any dividend, distribution or principal or interest payment in respect of the Collateral or any
part thereof and to give full discharge for the same.
SECTION 11. The Collateral Agent’s Duties. The powers conferred on the Collateral
Agent hereunder are solely to protect its interest and the interests of the Secured Parties in the
Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party to
exercise any such powers. Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as
to any Collateral, as to ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Pledged Shares, whether or not the
Collateral Agent or any other Secured Party has or is deemed to have knowledge of such matters, or
as to the taking of any necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of any Collateral in its possession if such Collateral is
accorded treatment substantially equal to that which the Collateral Agent accords its own property.
SECTION 12. Remedies. If any Event of Default shall have occurred and be continuing:
(a) The Collateral Agent may exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all the rights and remedies
of a secured party upon default under the UCC (whether or not the UCC applies to the affected
Collateral) or other applicable law or in equity and also may, with notice to the relevant Grantor,
sell the Collateral or any part thereof in one or more parcels at public or private sale, at
any exchange broker’s board or at any of the Collateral Agent’s offices or elsewhere, for
cash, on credit or for future delivery, at such price or prices and upon such other terms as are
commercially reasonable irrespective of the impact of any such sales on the market price of the
Collateral. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to
do so) to restrict the prospective bidders or purchasers of Collateral to Persons who will
represent and agree that they are purchasing the 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 Collateral so sold. Each purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby
waives (to the extent permitted by law) all rights of redemption, stay and/or appraisal that it now
has or may at any time in the future have under any rule of law or statute now existing or
hereafter enacted. The Collateral Agent or any other Secured Party shall have the right upon any
such public sale and, to the extent permitted by law, upon any such private sale, to purchase all
or any part of the Collateral so sold, and the Collateral Agent or such other Secured Party may pay
the purchase price by crediting the amount thereof against the Obligations. Each Pledgor agrees
that, to the extent notice of sale shall be required by law, at least ten days’ notice to such
Pledgor of the time and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and place to which it was
so adjourned. To the extent permitted by law, each Pledgor hereby waives any claim against the
Collateral Agent arising by reason of the fact that the price at which any Collateral may have been
sold at such a private sale was less than the price that might have been obtained at a public sale,
even if the Collateral Agent accepts the first offer received and does not offer such Collateral to
more than one offeree.
(b) The Collateral Agent shall apply the proceeds of any collection or sale of the Collateral
at any time after receipt as follows:
(i) first, to the payment of all reasonable and documented costs and expenses
incurred by the Collateral Agent in connection with such collection or sale or
otherwise in connection with this Agreement, the other Credit Documents or any of
the Obligations, including all court costs and the reasonable fees and expenses of
its agents and legal counsel, the repayment of all advances made by the Collateral
Agent hereunder or under any other Credit Document on behalf of any Pledgor and any
other reasonable and documented costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Credit Document;
(ii) second, to the Secured Parties, an amount equal to all Obligations owing
to them on the date of any such distribution, and, if such moneys shall be
insufficient to pay such amounts in full, then ratably (without priority of any one
over any other) to such Secured Parties in proportion to the unpaid amounts thereof;
and
(iii) third, any surplus then remaining shall be paid to the Pledgors or their
successors or assigns or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the
officer making the 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 Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
(c) The Collateral Agent may exercise any and all rights and remedies of each Pledgor in
respect of the Collateral.
(d) All payments received by any Pledgor in respect of the Collateral after the occurrence and
during the continuance of an Event of Default shall be received 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 as Collateral in the same form as so received (with any
necessary indorsement).
SECTION 13. Amendments, etc. with Respect to the Obligations; Waiver of Rights. Each
Pledgor shall remain obligated hereunder notwithstanding that, without any reservation of rights
against any Pledgor and without notice to or further assent by any Pledgor, (a) any demand for
payment of any of the Obligations made by the Collateral Agent or any other Secured Party may be
rescinded by such party and any of the Obligations continued, (b) the Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or released by the
Collateral Agent or any other Secured Party, (c) the Credit Agreement, the other Credit Documents
and any other documents executed and delivered in connection therewith and the Hedge Agreements and
any other documents executed and delivered in connection therewith and any documents entered into
with the applicable Administrative Agent or the Collateral Agent or any of its respective
affiliates in connection with treasury, depositary or cash management services or in connection
with any automated clearinghouse transfer of funds may be amended, modified, supplemented or
terminated, in whole or in part, as the applicable Administrative Agent (or the Required Lenders,
as the case may be, or, in the case of any Hedge Agreement or documents entered into with the
applicable Collateral Agent or any of its respective affiliates in connection with treasury,
depositary or cash management services or in connection with any automated clearinghouse transfer
of funds, the party thereto) may deem advisable from time to time, and (d) any collateral security,
guarantee or right of offset at any time held by the Collateral Agent or any other Secured Party
for the payment of the Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Collateral Agent nor any other Secured Party shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder against any
Pledgor, the Collateral Agent or any other Secured Party may, but shall be under no obligation to,
make a similar demand on any Borrower or any Pledgor or any other person, and any failure by the
Collateral Agent or any other Secured Party to make any such demand or to collect any
payments from any Borrower or any Pledgor or any other person or any release of any Borrower
or any Pledgor or any other person shall not relieve any Pledgor in respect of which a demand or
collection is not made or any Pledgor not so released of its several obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a
matter of law, of the Collateral Agent or any other Secured Party against any Pledgor. For the
purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
SECTION 14. Continuing Security Interest; Assignments Under the Credit Agreement;
Release. (a) This Agreement shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each Pledgor and the successors and assigns
thereof, and shall inure to the benefit of the Collateral Agent and the other Secured Parties and
their respective successors, indorsees, transferees and assigns until all the Obligations (other
than any contingent indemnity obligations not then due) under the Credit Documents shall have been
satisfied by payment in full, and the Commitments shall be terminated, notwithstanding that from
time to time during the term of the Credit Agreement and any Hedge Agreement the Credit Parties may
be free from any Obligations.
(b) A Subsidiary Pledgor shall automatically be released from its obligations hereunder and
the pledge of such Subsidiary Pledgor shall be automatically released upon the consummation of any
transaction expressly permitted under the Credit Agreement, as a result of which such Subsidiary
Pledgor ceases to be a Subsidiary Guarantor.
(c) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under
the Credit Agreement or upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to Section 14.1 of the Credit
Agreement, the obligations of such Pledgor with respect to such Collateral shall be automatically
released and such Collateral sold free and clear of the Lien and security interests created hereby.
(d) In connection with any termination or release pursuant to the foregoing paragraph (a), (b)
or (c), the Collateral Agent shall execute and deliver to any Pledgor or authorize the filing of,
at such Pledgor’s expense, all documents that such Pledgor shall reasonably request to evidence
such termination or release. Any execution and delivery of documents pursuant to this Section 14
shall be without recourse to or warranty by the Collateral Agent.
SECTION 15. Reinstatement. Each Pledgor further agrees that, if any payment made by
any Credit Party or other Person and applied to the Obligations is at any time annulled, avoided,
set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required
to be refunded or repaid, or the proceeds of Collateral are required to be returned by any Secured
Party to such Credit Party, its estate, trustee, receiver or any other party, including any
Pledgor, under any bankruptcy law, state, federal or foreign law, common law or equitable cause,
then, to the extent of such payment or repayment, any Lien or other Collateral securing such
liability shall be and remain in full force and effect, as fully as if such payment had never been
made or, if prior thereto the Lien granted hereby or other Collateral securing such liability
hereunder shall have been released or terminated by virtue of such cancellation or surrender),
such Lien or other Collateral shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect any
Lien or other Collateral securing the obligations of any Pledgor in respect of the amount of such
payment.
SECTION 16. Notices. All notices, requests and demands pursuant hereto shall be made
in accordance with Section 14.2 of the Credit Agreement. All communications and notices hereunder
to any Pledgor shall be given to it in care of the Borrower at the Borrower’s address set forth in
Section 14.2 of the Credit Agreement.
SECTION 17. Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by facsimile or other
electronic transmission), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Collateral Agent and the Borrower.
SECTION 18. Severability. Any provision of this Agreement that 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. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION 19. Integration. This Agreement together with the other Credit Documents
represents the agreement of each of the Pledgors with respect to the subject matter hereof and
there are no promises, undertakings, representations or warranties by the Collateral Agent or any
other Secured Party relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.
SECTION 20. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by the affected Pledgor and the Collateral Agent in
accordance with Section 14.1 of the Credit Agreement.
(b) Neither the Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument pursuant to Section 20(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event
of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Collateral Agent or any other Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Collateral Agent or any other
Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy that the Collateral Agent or such other Secured Party would otherwise have
on any future occasion.
(c) The rights, remedies, powers and privileges herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.
SECTION 21. Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
SECTION 22. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Pledgor and shall inure to the benefit of the Collateral Agent and
the other Secured Parties and their respective successors and assigns, except that no Pledgor may
assign, transfer or delegate any of its rights or obligations under this Agreement without the
prior written consent of the Collateral Agent.
SECTION 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 24. Submission to Jurisdiction; Waivers. Each party hereto irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Credit Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Person at its address referred to in Section 16 or at such
other address of which the Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by law or shall
limit the right of any party hereto (or any Secured Party) to xxx in any other jurisdiction;
and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section 24 any special,
exemplary, punitive or consequential damages.
SECTION 25. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 26. Intercreditor Agreement. Notwithstanding anything herein to the contrary,
the lien and security interest granted to the Collateral Agent pursuant to this Agreement and the
exercise of any right or remedy by the Collateral Agent hereunder are subject to the provisions of
the Intercreditor Agreement, dated as of January 31, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Intercreditor Agreement”), among the Borrower,
Xxxxxx Commercial Paper Inc., as Administrative Agent and as Collateral Agent, and certain other
persons which may be or become parties thereto, or become bound thereto from time to time. 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.
(signature pages follow)
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
| XXXXXXXX CORPORATION, as Pledgor |
||||
| By: | /s/ XXXXX X. XXXXXXXXX | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Chief Financial Officer | |
||
| XXXXXXXX APPALACHIAN
OILFIELD COMPANY, as Pledgor |
||||
| By: | /s/ XXXXX XXX III | |||
| Name: | Xxxxx Xxx III | |||
| Title: | Executive Vice President | |
||
| XXXXXXXX NIGERIA LIMITED, as Pledgor |
||||
| By: | /s/ XXXXX X. XXXXXX III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | Vice President | |
||
| XXXXXXXX DEVELOPMENT CORPORATION, as Pledgor |
||||
| By: | /s/ XXXXX X. XXXXXX III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | Vice President | |
||
| XXXXXXXX-PUERTO RICO CORPORATION, as Pledgor |
||||
| By: | /s/ XXXXX X. XXXXXX III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | President | |
||
| XXXXXX OIL & GAS COMPANY, as Pledgor |
||||
| By: | /s/ XXXXX X. XXXXXX III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | Vice President | |
||
| GREENBRIER PETROLEUM CORPORATION, as Pledgor |
||||
| By: | /s/ XXXXX X. XXXXXX III | |||
| Name: | Xxxxx X. Xxxxxx III | |||
| Title: | Vice President | |
||
| PIEDMONT FARMS, INC., as Pledgor |
||||
| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | President | |
||
| XXXXXXX REALTY COMPANY, as Pledgor |
||||
| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |
||
| XXXXXXXX-XXXX AFRICA CORPORATION, as Pledgor |
||||
| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | President | |
||
| Xxxxxx Commercial Paper Inc., as Collateral Agent |
||||
| By: | /s/ XXXX XXXXX | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Managing Director | |
||
[SIGNATURE PAGE TO PLEDGE AGREEMENT]
