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EXHIBIT 10.21
FORM OF
PLEDGE AGREEMENT
1. Recitals.
[___________________], a [___________] corporation (together with its
successors and assigns, "Pledgor"), the lending institutions listed on Annex I
to the Credit Agreement, as hereinafter defined (collectively, "Lenders" and,
individually, "Lender"), and KEYBANK NATIONAL ASSOCIATION, as administrative
agent for the Lenders ("Administrative Agent"), are parties to the Credit
Agreement.
Pledgor understands that the Lenders are willing to continue to grant
the financial accommodations to Pledgor pursuant to the Credit Agreement only
upon certain terms and conditions, one of which is that Pledgor grant to
Administrative Agent, for the benefit of the Lenders, a security interest in and
an assignment of the Collateral, as hereinafter defined, and this Pledge
Agreement (as the same may from time to time be amended, restated or otherwise
modified, this "Agreement") is being executed and delivered in consideration of
each financial accommodation granted to Pledgor by the Lenders and for other
valuable considerations.
2. Definitions. Except as specifically defined herein,
capitalized terms used herein that are defined in the Credit Agreement shall
have their respective meanings ascribed to them in the Credit Agreement. Unless
otherwise defined in this Section 2, terms that are defined in Chapter 1308 or
1309 of the Ohio Revised Code, as in effect from time to time, are used herein
as so defined. As used in this Agreement, the following terms shall have the
following meanings:
2.1. "Collateral" shall mean, collectively, (a) the Pledged
Securities and each addition, if any, thereto and each substitution, if any,
therefor, in whole or in part, (b) the certificates representing the Pledged
Securities, and (c) the dividends, cash, instruments and other property
distributed in respect of and other proceeds of any of the foregoing.
2.2. "Credit Agreement" shall mean the Credit Agreement executed by
and among Pledgor, the Lenders and Administrative Agent, dated as of the 1st day
of May, 1998, as amended and as the same may from time to time be further
amended, restated or otherwise modified.
2.3. "Event of Default" shall mean an event or condition that
constitutes an event of default pursuant to Section 8 hereof.
2.4. "Foreign Subsidiary" shall mean a Subsidiary that is organized
outside of the United States.
2.5. "Hedge Agreement" shall mean any currency swap or hedge
agreement, interest rate swap, cap, collar or floor agreement, or other interest
rate management device entered into
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by Pledgor or any Eligible Subsidiary with Administrative Agent or any of the
Lenders, or any of their respective affiliates, in connection with the
Obligations.
2.6. "Letter of Credit" shall mean any Letter of Credit, as defined
in the Credit Agreement, issued pursuant to the Credit Agreement.
2.7. "Loan" shall mean any Loan, as defined in the Credit
Agreement, granted pursuant to the Credit Agreement.
2.8. "Obligations" shall mean, collectively, (a) all Loans and
Letters of Credit; (b) all other indebtedness now owing or hereafter incurred by
Pledgor or any Eligible Subsidiary to Administrative Agent or any Lender
pursuant to the Credit Agreement and any Note executed in connection therewith;
(c) each renewal, extension, consolidation or refinancing of any of the
foregoing, in whole or in part; (d) all interest from time to time accruing on
any of the foregoing, and all fees and other amounts payable by Pledgor to
Administrative Agent or any Lender pursuant to the Credit Agreement; (e) all
obligations and liabilities of Pledgor now existing or hereafter incurred to
Administrative Agent or any Lender under, arising out of, or in connection with
any Hedge Agreement; (f) every other liability, now or hereafter owing to
Administrative Agent or any Lender by Pledgor or any Eligible Subsidiary
pursuant to the Credit Agreement or any other Credit Document; and (g) all
Related Expenses.
2.9. "Person" shall mean any individual, sole proprietorship,
partnership, joint venture, unincorporated organization, corporation, limited
liability company, institution, trust, estate, government or other agency or
political subdivision thereof or any other entity.
2.10. "Pledged Securities" shall mean, subject to Section 5 hereof,
all of the shares of stock or other equity interest of each Foreign Subsidiary
of Pledgor owned by Pledgor, as listed on Exhibit A hereto, and all additional
shares of stock or other equity interest of each Foreign Subsidiary of Pledgor
owned by Pledgor from time to time or acquired by Pledgor in any manner.
2.11. "Related Expenses" shall mean any and all reasonable costs,
liabilities and expenses (including, without limitation, losses, damages,
penalties, claims, actions, reasonable attorneys' fees, legal expenses,
judgments, suits and disbursements) (a) incurred by Administrative Agent or
imposed upon or asserted against Administrative Agent or any Lender, in any
attempt by Administrative Agent and the Lenders to (i) obtain, preserve, perfect
or enforce any security interest evidenced by this Agreement, the Credit
Agreement, any Credit Document, or any other document, instrument or agreement
executed in connection with any of the foregoing; (ii) obtain payment,
performance or observance of any and all of the Obligations; or (iii) maintain,
insure, audit, collect, preserve, repossess or dispose of any of the Collateral
or any other collateral securing the Obligations, including, without limitation,
costs and expenses for appraisals, assessments and audits of Pledgor or any such
collateral; or (b) incidental or related to (a) above, including, without
limitation, interest thereupon from the date incurred, imposed or asserted until
paid.
3. Security Interest. Pledgor hereby grants to Administrative
Agent, for the benefit of the Lenders, a security interest in and an assignment
of the Collateral as security for the Obligations. For the better protection of
Administrative Agent and the Lenders hereunder,
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Pledgor has executed appropriate transfer powers, in the form of Exhibit B
hereto, with respect to the Pledged Securities and, within forty-five (45) days
after the date of this Agreement (or such later date as shall be agreed to in
writing by Administrative Agent), is depositing the Pledged Securities and the
aforesaid transfer powers with Administrative Agent, for the benefit of the
Lenders. Pledgor authorizes Administrative Agent, on behalf of the Lenders, at
any time after the occurrence of an Event of Default, to transfer the Pledged
Securities into the name of Administrative Agent or Administrative Agent's
nominee, but Administrative Agent shall be under no duty to do so.
Notwithstanding any provision or inference herein or elsewhere to the contrary,
Administrative Agent shall have no right to vote the Pledged Securities at any
time unless and until there shall have occurred an Event of Default.
4. Pledgor's Representations and Warranties. Pledgor represents
and warrants to Administrative Agent and the Lenders as follows:
4.1. Pledgor is the legal record and beneficial owner of, and has
good and marketable title to, the Pledged Securities, and the Pledged Securities
are not subject to any pledge, lien, mortgage, hypothecation, security interest,
charge, option, warrant or other encumbrance whatsoever, nor to any agreement
purporting to grant to any third party a security interest in the property or
assets of Pledgor that would include such Pledged Securities, except the
security interest created by this Agreement or otherwise securing only
Administrative Agent and the Lenders.
4.2. All of the Pledged Securities have been duly authorized and
validly issued, and are fully paid and non-assessable.
4.3. Pledgor has full power, authority and legal right to pledge
all of the Pledged Securities pursuant to the terms of this Agreement.
4.4. No consent, license, permit, approval or authorization, filing
or declaration with any governmental authority, domestic or foreign, and no
consent of any other Person, is required to be obtained by Pledgor in connection
with the pledge of the Pledged Securities hereunder, that has not been obtained
or made, and is not in full force and effect.
4.5. The pledge, assignment and delivery of the Pledged Securities
hereunder creates a valid first lien on, and a first perfected security interest
in, the Pledged Securities and the proceeds thereof.
4.6. The Pledged Securities constitute sixty-five percent (65%) of
the outstanding shares of stock or other equity interest of each Foreign
Subsidiary's stock or other equity interest pledged in accordance with Section 5
hereof.
4.7. Pledgor fully anticipates that the Obligations will be repaid
without the necessity of selling the Pledged Securities.
4.8. Pledgor has received consideration that is the reasonable
equivalent value of the obligations and liabilities that Pledgor has incurred to
Administrative Agent and the Lenders. Pledgor is not insolvent, as defined in
any applicable state or federal statute, nor will Pledgor be rendered insolvent
by the execution and delivery of this Agreement to Administrative Agent, for
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the benefit of the Lenders. Pledgor is not engaged or about to engage in any
business or transaction for which the assets retained by Pledgor are or will be
an unreasonably small amount of capital, taking into consideration the
obligations to Administrative Agent and the Lenders incurred hereunder. Pledgor
does not intend to incur debts beyond Pledgor's ability to pay them as they
mature.
4.9. If the Pledged Securities are "restricted securities" within
the meaning of Rule 144, or any amendment thereof, promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), as determined by
counsel for Pledgor, Pledgor further represents and warrants that, except as
disclosed in writing to Lender, (a) Pledgor has been the beneficial owner of the
Pledged Securities for a period of at least two years prior to the date hereof,
(b) the full purchase price or other consideration for the Pledged Securities
has been paid or given at least two years prior to the date hereof, and (c)
Pledgor does not have a short position in or any put or other option to dispose
of any securities of the same class as the Pledged Securities or any other
securities convertible into securities of such class.
5. Foreign Subsidiaries. Notwithstanding anything in this
Agreement to the contrary, Pledgor shall not be required to pledge more than
sixty-five percent (65%) of the outstanding shares of stock or other equity
interest of any Foreign Subsidiary if tax consequences materially adverse to
Pledgor would result therefrom.
6. Termination. At such time as the Obligations shall have been
irrevocably paid in full, the Commitment, as defined in the Credit Agreement,
terminated, and the Credit Agreement terminated and not replaced by any other
credit facility with Administrative Agent and the Lenders, Pledgor shall have
the right to terminate this Agreement. Upon written request of Pledgor,
Administrative Agent shall promptly execute and deliver to Pledgor appropriate
releases with respect to the Collateral and return all of the Pledged Securities
to Pledgor.
7. Additional Covenants of Pledgor.
7.1. Pledgor covenants and agrees to defend the right, title and
security interest of Administrative Agent and the Lenders in and to the Pledged
Securities and the proceeds thereof, and to maintain and preserve the lien and
security interest provided for by this Agreement against the claim and demands
of all Persons, so long as this Agreement shall remain in effect.
7.2. Pledgor covenants and agrees not to sell, assign, transfer,
exchange or otherwise dispose of, or grant any option with respect to, or
create, incur or permit to exist any pledge, lien, mortgage, hypothecation,
security interest, charge, option or any other encumbrance with respect to any
of the Pledged Securities, or any interest therein, or any proceeds thereof,
except for the lien and security interest provided for by this Agreement and any
security agreement securing only Administrative Agent and the Lenders.
7.3. Pledgor covenants and agrees (a) to cooperate, in good faith,
with Administrative Agent and the Lenders and to do or cause to be done all such
other acts as may be necessary to enforce the rights of Administrative Agent and
the Lenders under this Agreement, (b) not to take any action, or to fail to take
any action that would be adverse to the interest of Administrative Agent and the
Lenders in the Collateral and hereunder, and (c) to make any sale or sales of
any portion or all of the Pledged Securities valid and binding and in compliance
with any and all
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applicable laws, regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales at Pledgor's expense.
8. Events of Default.
8.1. Any of the following shall constitute an Event of Default
under this Agreement: (a) an Event of Default, as defined in the Credit
Agreement, shall occur under the Credit Agreement; (b) any representation,
warranty or statement made by Pledgor in or pursuant to this Agreement or in any
other writing received by Administrative Agent or the Lenders in connection with
the Obligations shall be false or erroneous in any material respect; or (c)
Pledgor shall fail or omit to perform or observe any agreement made by Pledgor
in or pursuant to this Agreement or in any other writing received by
Administrative Agent or the Lenders pursuant hereto.
8.2. Upon the occurrence of an Event of Default hereunder, and at
all times thereafter, Administrative Agent, in its discretion, may sell, assign,
transfer and deliver the Collateral, or any part thereof, at any time, or from
time to time. No prior notice need be given to Pledgor or to any other Person in
the case of any sale of Collateral that Administrative Agent determines to be
declining speedily in value or that is customarily sold in any securities
exchange, over-the-counter market or other recognized market, but in any other
case Administrative Agent shall give Pledgor no fewer than ten (10) days prior
notice of either the time and place of any public sale of the Collateral or of
the time after which any private sale or other intended disposition thereof is
to be made. Pledgor waives advertisement of any such sale and (except to the
extent specifically required by the preceding sentence) waives notice of any
kind in respect of any such sale. At any such public sale, Administrative Agent
or any Lender may purchase the Collateral, or any part thereof, free from any
right of redemption, all of which rights Pledgor hereby waives and releases.
After deducting all Related Expenses, and after paying all claims, if any,
secured by liens having precedence over this Agreement, Administrative Agent may
apply the net proceeds of each such sale to or toward the payment of the
Obligations, whether or not then due, in such order and by such division as
Administrative Agent in its sole discretion may deem advisable. Any excess, to
the extent permitted by law, shall be paid to Pledgor, and the obligors on the
Obligations shall remain liable for any deficiency. In addition, Administrative
Agent shall at all times have the right to obtain new appraisals of Pledgor or
the Collateral, the cost of which shall be paid by Pledgor.
9. Attorney-in-Fact. Pledgor hereby authorizes and empowers
Administrative Agent, on behalf of the Lenders, to make, constitute and appoint
any officer or agent of Administrative Agent as Administrative Agent may select,
in its exclusive discretion, as Pledgor's true and lawful attorney-in-fact, with
the power to endorse Pledgor's name on all applications, documents, papers and
instruments necessary for Administrative Agent to take actions with respect to
the Collateral after the occurrence of an Event of Default, including, without
limitation, actions necessary for Administrative Agent to assign, pledge, convey
or otherwise transfer title in or dispose of the Collateral to any Person.
Pledgor ratifies all that such attorney shall lawfully do or cause to be done by
virtue hereof. This power of attorney shall be irrevocable for the life of this
Agreement.
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10. Costs and Expenses. If Pledgor fails to comply with any of its
obligations hereunder, Administrative Agent may do so in Pledgor's name or in
Administrative Agent's name, but at Pledgor's expense, and Pledgor hereby agrees
to reimburse Administrative Agent and the Lenders in full for all expenses,
including reasonable attorneys' fees, incurred by Administrative Agent and the
Lenders in protecting, defending and maintaining the Collateral. Without
limiting the foregoing, any and all reasonable fees, costs and expenses, of
whatever kind or nature, including the reasonable attorneys' fees and expenses
incurred in connection with the filing or recording of any documents (including
all taxes in connection therewith) in public offices, the payment or discharge
of any taxes, maintenance fees, encumbrances or otherwise protecting,
maintaining or preserving the Collateral, or in defending or prosecuting any
actions or proceedings arising out of or related to the Collateral, shall be
borne and paid by Pledgor upon request of Administrative Agent.
11. Notice. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to
Pledgor, at the address specified on the signature page of this Agreement, if to
any Lender, at its address specified for such Lender on Annex I to the Credit
Agreement, and if to Administrative Agent, at the Notice Office, as defined in
the Credit Agreement; or at such other address as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied, or cabled or
sent by overnight courier, and shall be effective when received.
12. Interpretation. Each right, power or privilege specified or
referred to in this Agreement is in addition to any other rights, powers and
privileges that Administrative Agent or the Lenders may have or acquire by
operation of law, by other contract or otherwise. No course of dealing in
respect of, nor any omission or delay in the exercise of, any right, power or
privilege by Administrative Agent and the Lenders shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any further
or other exercise thereof or of any other, as each right, power or privilege may
be exercised by Administrative Agent and the Lenders either independently or
concurrently with other rights, powers and privileges and as often and in such
order as Administrative Agent and the Lenders may deem expedient. No waiver or
consent granted by Administrative Agent and the Lenders in respect of this
Agreement shall be binding upon Administrative Agent and the Lenders unless
specifically granted in writing, which writing shall be strictly construed.
13. Assignment and Successors. This Agreement shall not be
assigned by Pledgor without the prior written consent of Administrative Agent.
This Agreement shall bind the successors and permitted assigns of Pledgor and
shall benefit the successors and assigns of Administrative Agent and the
Lenders.
14. Severability. If, at any time, one or more provisions of this
Agreement is or becomes invalid, illegal or unenforceable in whole or in part,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
15. Governing Law; Submission to Jurisdiction. The provisions of
this Agreement and the respective rights and duties of Pledgor and
Administrative Agent and the Lenders hereunder shall be governed by and
construed in accordance with Ohio law, without regard to
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principles of conflict of laws. Pledgor hereby irrevocably submits to the
non-exclusive jurisdiction of any Ohio state or federal court sitting in
Cleveland, Ohio, over any action or proceeding arising out of or relating to
this Agreement, the Credit Agreement, any Credit Document, or any other
document, instrument or agreement executed in connection with any of the
foregoing, and Pledgor hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such Ohio state or
federal court. Pledgor, on behalf of itself and its Subsidiaries, hereby
irrevocably waives, to the fullest extent permitted by law, any objection it may
now or hereafter have to the laying of venue in any action or proceeding in any
such court as well as any right it may now or hereafter have to remove such
action or proceeding, once commenced, to another court on the grounds of FORUM
NON CONVENIENS or otherwise. Pledgor agrees that a final, non-appealable
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
[Remainder of page intentionally left blank.]
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16. JURY TRIAL WAIVER. PLEDGOR, ADMINISTRATIVE AGENT AND THE
LENDERS WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG PLEDGOR, ANY ELIGIBLE
SUBSIDIARY, ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT
OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH
OR THE TRANSACTIONS RELATED THERETO.
Executed and delivered at Cleveland, Ohio, as of the ______ day of
August, 2001.
Address:________________________ [________________________-]
________________________
________________________ By:________________________
Name:______________________
Title:_____________________
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EXHIBIT A
PLEDGED SECURITIES
Name of Subsidiary Number of Shares Certificate Number
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EXHIBIT B
FORM OF STOCK TRANSFER POWER
FOR VALUE RECEIVED, [_____________________], a Delaware corporation,
hereby sells, assigns and transfers unto ___________________ (_______) Shares of
the _______________________ Capital Stock of
___________________________________________ standing in ___________ name on the
books of said corporation and represented by Certificate No. _________ herewith
and does hereby irrevocably constitute and appoint
______________________________ attorney to transfer the said stock on the books
of the within named corporation with full power of substitution in the premises.
[_______________________]
Dated __________ By: __________________________
Name: ________________________
Title: _______________________
