Contract
Exhibit 10.11(b)
EXECUTION COPY
U.S. PLEDGE AGREEMENT
U.S. PLEDGE AGREEMENT, dated as of February 8, 2007, among WRCA US HOLDINGS INC., a Delaware corporation (“U.S. Holdings”), CLOSER MERGER SUB INC. (to be merged with and into WIRE ROPE CORPORATION OF AMERICA, INC.), a Delaware corporation (“Borrower”), WRCA FINANCE (LUXEMBOURG) S.A X.X., a société à responsabilité limitée organized under the laws of Luxembourg (“LuxFinCo”), each Consolidated Subsidiary of the Borrower listed on the signature pages hereto (each such Consolidated Subsidiary individually a “Subsidiary Pledgor” and collectively, the “Subsidiary Pledgors”; U.S. Holdings, LuxFinCo, Borrower and the Subsidiary Pledgors are referred to collectively herein as the “Pledgors”) and HSBC BUSINESS CREDIT (USA) INC. (“HSBC”), as Agent (in such capacity, the “Agent”) for the Lenders and L/C Issuer party to the Loan Agreement referred to below.
Reference is made to (a) the Loan and Security Agreement, dated as of February 8, 2007 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), among the Borrower, WRCA (Cyprus) Holdings Limited, as the Parent, certain affiliates of the Parent, as pledgors, the lenders from time to time party thereto (the “Lenders”), the Agent, The CIT Group/ Business Credit, Inc., as documentation agent, and JPMorgan Chase Bank, N.A., as syndication agent and (b) the Guarantee Agreement, dated as of February 8, 2007 (as amended, supplemented or otherwise modified from time to time, the “Guarantee Agreement”), between each of the Guarantors (as defined therein) and the Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Loan Agreement. As used herein, the term “Secured Parties” means, collectively, the Agent, the Lenders and the L/C Issuer.
The Lenders have agreed to make Advances to, and the L/C Issuer has agreed to issue Letters of Credit for the benefit of, the Borrower pursuant to, and upon the terms and subject to the conditions specified in, the Loan Agreement. The Loan Parties have agreed to guarantee, among other things, all the obligations of the Borrower under the Loan Agreement. The obligations of the Lenders to make Advances, and the L/C Issuer to issue Letters of Credit, are conditioned upon, among other things, the execution and delivery by the Pledgors of an Agreement in the form hereof to secure the Indebtedness.
Accordingly, the Pledgors and the Agent, on behalf of itself and each Secured Party (and each of their respective successors or assigns), hereby agree as follows:
Section 1. Pledge. As security for the payment and performance, as the case may be, in full of its Indebtedness, each Pledgor hereby transfers, grants, bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto the Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest in all of the Pledgor’s right, title and interest in, to and under (a) (i) all Equity Interests owned by it, including, without limitation, all Equity Interests listed on Schedule II hereto and any shares of capital stock of any Consolidated Subsidiary obtained in the future by such Pledgor and the certificates representing all such shares (the “Pledged Stock”); provided that the Pledged Stock shall not include more than 65% of the issued and outstanding shares of voting stock of any Foreign Consolidated
Subsidiary; (b) (i) all debt securities issued to such Pledgor, including, without limitation, all debt securities listed opposite the name of such Pledgor on Schedule II hereto, (ii) any debt securities in the future issued to such Pledgor and (iii) the promissory notes and any other instruments evidencing such debt securities (the “Pledged Debt Securities”); (c) all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed, in respect of, in exchange for or upon the conversion of the Pledged Stock and Pledged Debt Securities referred to in clauses (a) and (b) above; (d) all rights and privileges of the Pledgor with respect to the Pledged Stock, Pledged Debt Securities and other property referred to in clauses (a), (b) and (c) above; and (e) all proceeds of any of the foregoing (the items referred to in clauses (a) through (d) above being collectively referred to as the “Collateral”).
TO HAVE AND TO HOLD the Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Agent, its successors and assigns, for the ratable benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth.
Section 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly to deliver or cause to be delivered to the Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent) any and all certificates with respect to Equity Interests, notes or other securities in excess of a face amount of $500,000 now or hereafter included in the Collateral, including all certificates, instruments or other documents representing or evidencing any Collateral (the “Pledged Securities”).
(b) Each Pledgor will cause any Indebtedness for borrowed money in excess of $500,000 owed to the Pledgor by any Person to be evidenced by a duly executed promissory note that is pledged and delivered to the Agent pursuant to the terms thereof.
(c) Upon delivery to the Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent), (i) any Pledged Securities shall be accompanied by stock powers duly indorsed in blank by an “effective indorsement” (as defined in Section 8-107 of the UCC) or other instruments of transfer satisfactory to the Agent and by such other instruments and documents as the Agent may reasonably request and (ii) all other property comprising part of the Collateral shall be accompanied by proper instruments of assignment duly executed by the applicable Pledgor and such other instruments or documents as the Agent may reasonably request. The initial Pledged Securities are described on Scheduled II hereto. Each delivery of Pledged Securities after the date hereof shall be accompanied by a schedule describing the additional securities and the initial Pledged Securities, which schedule shall be attached hereto as Schedule II and be made a part thereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supersede any prior schedules so delivered.
Section 3. Representations, Warranties and Covenants. Each Pledgor hereby represents, warrants and covenants, as to itself and the Collateral pledged by it hereunder, to and with the Agent that:
(a) the Pledged Stock represents that percentage as set forth on Schedule II of the issued and outstanding shares of each class of the capital stock of the issuer with respect thereto and Schedule II includes all Equity Interests, debt securities and promissory notes required to be pledged hereunder;
(b) except for the security interest granted hereunder and other than as permitted under the terms of the Loan Agreement, including with respect to the Liens in favor of the Lenders under the Term Loan Agreement, the Pledgor (i) is and will at all times continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II, (ii) holds the same free and clear of all Liens, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Collateral, other than pursuant hereto and (iv) subject to Section 5, will cause any and all Collateral, whether for value paid by the Pledgor or otherwise, to be forthwith deposited with the Agent and pledged or assigned hereunder;
(c) the Pledgor (i) has the power and authority to pledge the Collateral in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than the Lien created by this Agreement or permitted by the Term Loan Agreement), however arising, of all Persons whomsoever;
(d) no consent of any other Person (including stockholders, members, partners or creditors of any Pledgor), and no consent or approval of any Governmental Authority or any securities exchange, which has not been obtained was or is necessary to the validity of the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of this Agreement, when the Pledged Securities, certificates or other documents representing or evidencing the Collateral are delivered to the Agent in accordance with this Agreement, the Agent will obtain a valid and perfected lien upon and security interest in such Pledged Securities as security for the payment and performance of the Indebtedness, subject to Permitted Liens;
(f) the pledge effected hereby is effective to vest in the Agent, on behalf of the Secured Parties, the rights of the Agent in the Collateral as set forth herein;
(g) all of the Pledged Stock and Pledged Debt Securities have been duly authorized and validly issued and (i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in the case of Pledged Debt Securities, are legal, valid and binding obligations of the issuers thereof to the extent the issuer is Parent or Consolidated Subsidiary;
(h) all information set forth herein relating to the Pledged Stock is accurate and complete in all material respects as of the date hereof; and
(i) the pledge of the Pledged Stock pursuant to this Agreement does not violate Regulation T, U or X of the Federal Reserve Board or any successor thereto as of the date hereof.
Section 4. Registration in Nominee Name; Denominations. The Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent), on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the Pledgors, endorsed or assigned in blank or in favor of the Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent). Each Pledgor will promptly give to the Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent) copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Pledgor. The Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent) shall at all times have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.
Section 5. Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Loan Agreement and the other Loan Documents.
(ii) The Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent) shall execute and deliver to each Pledgor, or cause to be executed and delivered to each Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to this Agreement and to receive the cash dividends it is entitled to receive pursuant to subparagraph (iii) below.
(iii) Each Pledgor shall be entitled to receive and retain any and all cash dividends, interest and principal paid on the Pledged Securities to the extent and only to the extent that such cash dividends, interest and principal are permitted by, and otherwise paid in accordance with, the terms and conditions of the Loan Agreement, the other Loan Documents and applicable laws. All noncash dividends, interest and principal, and all dividends, interest and principal paid or payable in cash or otherwise in connection with a partial or total liquidation or dissolution, return of capital, capital surplus or paid-in surplus, and all other distributions (other than distributions referred to in the preceding sentence) made on or in respect of the Pledged Securities, whether paid or payable in cash or otherwise, whether resulting from a subdivision, combination or reclassification of the outstanding capital stock of the issuer of any Pledged Securities or received in exchange for Pledged Securities 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 become part of the Collateral, and shall be held in trust for the benefit of the Agent and shall be forthwith delivered to the Agent (or subject to the terms of the Intercreditor Agreement, the Term Loan Agent) in the same form as so received (with any necessary endorsement) to the extent constituting Collateral possession of which by the Agent is necessary for the perfection of security interest therein.
(e) Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, all rights of any Pledgor to dividends, interest or principal that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall cease, and all such rights shall thereupon become vested in the Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest or principal. All dividends, interest or principal received by the Pledgor contrary to the provisions of this Section 5 shall be held in trust for the benefit of the Agent, shall be segregated from other property or funds of such Pledgor and shall be forthwith delivered to the Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other property paid over to or received by the Agent pursuant to the provisions of this paragraph (b) shall be retained by the Agent in an account to be established by the Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 7. After all Events of Default have been cured or waived, the Agent shall, within five Business Days after all such Events of Default have been cured or waived, repay to each Pledgor all cash dividends, interest or principal (without interest), that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) above and which remain in such account.
(f) Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, all rights of any Pledgor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 5, and the obligations of the Agent under paragraph (a)(ii) of this Section 5, shall cease, and all such rights shall thereupon become vested in the Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers, provided that, unless otherwise directed by the Requisite Lenders, the Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived, such Pledgor will have the right to exercise the voting and consensual rights and powers that it would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Section 6. Remedies upon Default. Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, subject to applicable regulatory and legal requirements, the Agent may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at law or in equity, all the rights and remedies of the Agent on default under the UCC to collect, enforce or satisfy any Indebtedness then owing, whether by acceleration or otherwise. Without limiting the generality of the foregoing, the Agent may sell the Collateral, or any part thereof, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Agent shall deem appropriate. The Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers 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 Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and, to the extent permitted by applicable law, the Pledgors hereby waive all rights of redemption, stay, valuation and appraisal any Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
The Agent shall give a Pledgor 10 days’ prior written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the UCC as in effect in the State of New York or its equivalent in other jurisdictions) of the Agent’s intention to make any sale of such Pledgor’s Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Agent may fix and state in the notice of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Agent may (in its sole and absolute discretion) determine. The Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Agent until the sale price is paid in full by the purchaser or purchasers thereof, but the Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section 6, any Secured Party may bid for or purchase, free from any right of redemption, stay or appraisal on the part of any Pledgor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to it from such Pledgor as a credit against the purchase price, and it may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to such Pledgor therefor. For purposes hereof, (a) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (b) the Agent shall be free to carry out such sale pursuant to such agreement and (c) such Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Indebtedness paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 6 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-504(3) of the UCC as in effect in the State of New York or its equivalent in other jurisdictions.
Section 7. Application of Proceeds of Sale. The proceeds of any sale of Collateral pursuant to Section 6, as well as any Collateral consisting of cash, shall be applied by the Agent in accordance with Section 15.5(d) of the Loan Agreement and the Intercreditor Agreement.
The Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the 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 Agent or such officer or be answerable in any way for the misapplication thereof.
Section 8. Reimbursement of Agent. (a) Each Pledgor agrees to pay upon demand to the Agent the amount of any and all reasonable and documented expenses, including the reasonable and documented fees, other charges and disbursements of its counsel and of any experts or agents, that the Agent may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of the Agent hereunder or (iv) the failure by such Pledgor to perform or observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the other Loan Documents, each Pledgor agrees to indemnify the Agent (and any sub-agent thereof), the L/C Issuer and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel fees, other charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated thereby or (ii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional Indebtedness secured hereby and by the other Loan Documents. The provisions of this Section 8 shall remain operative and in full force and effect regardless of the termination of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Indebtedness, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document or any investigation made by or on behalf of the Agent or any other Secured Party. All amounts due under this Section 8 shall be payable on written demand therefor and shall bear interest at the rate specified in Section 2.6(c) of the Loan Agreement.
Section 9. Agent Appointed Attorney-in-Fact. Each Pledgor hereby appoints the Agent the attorney-in-fact of such Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Agent’s name or in the name of such Pledgor, to ask for, demand, xxx for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral, to endorse checks, drafts, orders and other instruments for the payment of money payable to the Pledgor representing any interest or dividend or other distribution payable in respect of the Collateral or any part thereof or on account thereof and to give full discharge for the same, to settle, compromise, prosecute or defend any action, claim or proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer and to make any agreement respecting, or otherwise deal with, the same; provided, however, that nothing herein contained shall be construed as requiring or obligating the Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Pledgor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.
Section 10. Waivers; Amendment. (a) No failure or delay of the Agent in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agent hereunder and of the other Secured Parties under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provisions of this Agreement or consent to any departure by any Pledgor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Pledgor in any case shall entitle such Pledgor to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to a written agreement entered into between the Agent and the Pledgor or Pledgors with respect to which such waiver, amendment or modification is to apply, with the prior written consent of the Requisite Lenders (and such other consent as may be required by Section 14.12 of the Loan Agreement).
Section 11. Securities Act, etc. In view of the position of the Pledgors in relation to the Pledged Securities, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the
Pledged Securities permitted hereunder. Each Pledgor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Agent if the Agent were to attempt to dispose of all or any part of the Pledged Securities, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Securities could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Agent in any attempt to dispose of all or part of the Pledged Securities under applicable “blue sky” or other state securities laws or similar laws analogous in purpose or effect. Each Pledgor recognizes that in light of such restrictions and limitations the Agent may, with respect to any sale of the Pledged Securities, limit the purchasers to those who will agree, among other things, to acquire such Pledged Securities for their own account, for investment, and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that in light of such restrictions and limitations, the Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Securities or part thereof shall have been filed under the Federal Securities Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Pledgor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Agent shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price that the Agent, in its sole and absolute discretion, may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 11 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Agent sells.
Section 12. Registration, etc. Each Pledgor agrees that, upon the occurrence and during the continuance of an Event of Default hereunder, if for any reason the Agent desires to sell any of the Pledged Securities of the Borrower at a public sale, it will, at any time and from time to time, upon the written request of the Agent, use its best efforts to take or to cause the issuer of such Pledged Securities to take such action and prepare, distribute and/or file such documents, as are required or advisable in the reasonable opinion of counsel for the Agent to permit the public sale of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and hold harmless the Agent, each other Secured Party, any underwriter and their respective officers, directors, Affiliates and controlling Persons from and against all loss, liability, expenses, costs of counsel (including, without limitation, reasonable and documented fees and expenses to the Agent of legal counsel) and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to such Pledgor or the issuer of such Pledged Securities by the Agent or any other Secured Party expressly for use therein. Each Pledgor further agrees, upon such written request referred to above, to use its best efforts to qualify, file or register, or cause the issuer of such Pledged Securities to qualify, file or register, any of the Pledged Securities under the “blue sky” or other securities laws of such states as may be requested by the Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Pledgor will bear all costs and expenses of carrying out its obligations under this Section 12. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section 12 and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section 12 may be specifically enforced.
Section 13. Security Interest Absolute. All rights of the Agent hereunder, the grant of a security interest in the Collateral and all obligations of each Pledgor hereunder, shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Loan Agreement, any other Loan Document, any agreement with respect to any of the Indebtedness or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Indebtedness, or any other amendment or waiver of or any consent to any departure from the Loan Agreement, any other Loan Document or any other agreement or instrument relating to any of the foregoing, (c) any exchange, release or nonperfection of any other collateral, or any release or amendment or waiver of or consent to or departure from any guaranty, for all or any of the Indebtedness or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the Indebtedness or in respect of this Agreement (other than the indefeasible payment in full of all the Indebtedness).
Section 14. Termination or Release. (a) This Agreement and the security interests granted hereby shall terminate when all the Indebtedness (other than with respect to indemnifications that expressly survive the termination of any Guarantee or the Loan Agreement are not due and payable or reasonably foreseeable on such date) have been paid in full or collateralized in full in a manner reasonably satisfactory to the Agent or otherwise performed and the Lenders have no further commitment to lend under the Loan Agreement.
(b) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under the Loan Agreement to any Person that is not a Pledgor, or, upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 14.12 of the Loan Agreement, the security interest in such Collateral shall be automatically released.
(c) In connection with any termination or release pursuant to paragraph (a) or (b), the Agent shall execute and deliver to any Pledgor, 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 Agent.
Section 15. Notices. All communications and notices hereunder shall be in writing and given as provided in Section 14.21 of the Loan Agreement. All communications and notices hereunder to any Pledgors shall be given to it in care of such Pledgor at the address indicated on Schedule I hereto.
Section 16. Further Assurances. Each Pledgor agrees to do such further acts and things, and to execute and deliver such additional conveyances, assignments, agreements and instruments, as the Agent may at any time reasonably request in connection with the administration and enforcement of this Agreement or with respect to the Collateral or any part thereof or in order better to assure and confirm unto the Agent its rights and remedies hereunder.
Section 17. Binding Effect; Several Agreement; Assignments. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Pledgor that are contained in this Agreement shall bind and inure to the benefit of its successors and assigns. This Agreement shall become effective as to any Pledgor when a counterpart hereof executed on behalf of such Pledgor shall have been delivered to the Agent and a counterpart hereof shall have been executed on behalf of the Agent, and thereafter shall be binding upon such Pledgor and the Agent and their respective successors and assigns, and shall inure to the benefit of such Pledgor, the Agent and the other Secured Parties, and their respective successors and assigns, except that no Pledgor shall have the right to assign its rights hereunder or any interest herein or in the Collateral (and any such attempted assignment shall be void), except as expressly contemplated by this Agreement or the other Loan Documents. This Agreement shall be construed as a separate agreement with respect to each Pledgor and may be amended, modified, supplemented, waived or released with respect to any Pledgor without the approval of any other Pledgor and without affecting the obligations of any other Pledgor hereunder.
Section 18. Survival of Agreement; Severability. (a) All covenants, agreements, representations and warranties made by each Pledgor herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Agent and the other Secured Parties and shall survive the making by the Lenders of the Advances, regardless of any investigation made by the Secured Parties or on their behalf, and shall continue in full force and effect until this Agreement terminated under Section 14.
(b) In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties 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. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 20. Counterparts. This Agreement may be executed in two or more counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which, when taken together, shall constitute a single contract, and shall become effective as provided in Section 17. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.
Section 21. Rules of Interpretation. The rules of interpretation specified in Section 1.2 and 1.3 of the Loan Agreement shall be applicable to this Agreement. Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting this Agreement.
Section 22. Jurisdiction; Consent to Service of Process. (a) Each Pledgor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that, to the extent permitted by applicable law, all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against any Pledgor or its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 15. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
Section 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 24. Additional Pledgors. Pursuant to Section 14.17 of the Loan Agreement, each Consolidated Subsidiary that was not in existence or not a Consolidated Subsidiary on the date of the Loan Agreement is or may be required (if and to the extent set forth in the Credit Agreement) to enter in this Agreement as a Pledgor upon becoming a Consolidated Subsidiary if such Consolidated Subsidiary owns or possesses property of a type that would be considered Collateral hereunder. Upon execution and delivery by the Agent and a Consolidated Subsidiary of an instrument in the form of Annex 1, such Consolidated Subsidiary shall become a Pledgor hereunder with the same force and effect as if originally named as a Pledgor herein. The execution and delivery of such instrument shall not require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of any new Pledgor as a party to this Agreement.
Section 25. Filing of Financing Statements. Pursuant to Section 9-509 of the UCC as in effect in the State of New York or its equivalent in other jurisdictions, each Pledgor authorizes the Agent to file financing statements with respect to the Collateral owned by it in such form and in such filing offices as the Agent reasonably determines appropriate to perfect the security interests of the Agent under this Agreement, which financing statements may describe the collateral in the same manner described in this Agreement or describe such property as “all assets,” “all personal property, whether now existing or hereafter acquired,” “all of the debtor’s assets, whether now owned or hereafter acquired” or words of similar effect.
Section 26. Intercreditor Agreement. To the extent that any applicable provision of this Agreement involving the rights of the Agent with respect to the Collateral or the exercise of remedies against any Collateral conflicts with or is inconsistent with the terms of the Intercreditor Agreement or affects the rights and remedies of the Agent with respect to the Collateral, the provisions of the Intercreditor Agreement shall prevail.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
| WRCA FINANCE (LUXEMBOURG) S.A X.X. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Class A Manager | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Class B Manager | |||
| WRCA US HOLDINGS INC. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | President | |||
| WIRE ROPE CORPORATION OF AMERICA, INC., successor in interest to CLOSER MERGER SUB INC. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | President | |||
| WRCA, LLC | ||||
| By WIRE ROPE CORPORATION OF AMERICA, INC., its sole member | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | President | |||
| CAMESA, INC. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | President | |||
| AWARCO, INC. AMERICAN WIRE AND ROPE COMPANY, INC. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | President | |||
| PRESTRESSED CONCRETE STRAND OF AMERICA, INC. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | President | |||
| HSBC BUSINESS CREDIT (USA) INC., as Agent, | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
Schedule I to the
PLEDGORS
Address for Notices:
To any Pledgor:
c/o Wire Rope Corporation of America, Inc. at 000 X. 0xx Xxxxxx, Xxxxx Xxxxxx, XX 00000, Attention: Chief Financial Officer, Telephone: (000) 000-0000/(000) 000-0000
| Pledgor |
Address | |
| WRCA US Holdings Inc. |
000 Xxxxx Xxxx, Xxxxx 0000 Xxxxxx Xxxx, XX 00000 to change on the Closing Date to 000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| Closer Merger Sub Inc. |
000 Xxxxx Xxxx, Xxxxx 0000 Xxxxxx Xxxx, XX 00000 to change on the Closing Date to 000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| Wire Rope Corporation of America, Inc. |
000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| WRCA, LLC |
000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| Camesa, Inc. |
000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| AWARCO, Inc. American Wire and Rope Company, Inc. |
000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| Prestressed Concrete Strand of America, Inc. |
000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
| WRCA Finance (Luxembourg) S.à x.x. |
000 Xxxxx Xxxxxx Xxxxxx Xx. Xxxxxx, XX 00000 | |
Schedule I-1
Schedule II to the
Pledged Equity Interests, Debt
1. Equity Interests
A. 100% of the following Equity Interests are pledged:
| Issuer |
Certificate No. | Registered Owner |
Number and |
Percentage of Outstanding Equity Interests |
||||||
| Wire Rope Corporation of America, Inc. (as the surviving entity of the merger with Closer Merger Sub Inc. on the Closing Date) | 5 | WRCA US Holdings Inc. | 100 Common Shares |
100 | % | |||||
| WRCA US Holdings Inc. | 1 | WRCA Finance (Luxembourg) S.à x.x. | 794,843 Common shares | 91.6 | % | |||||
| WRCA, LLC | N/A | Wire Rope Corporation of America, Inc. | N/A | 100 | % | |||||
| Camesa, Inc. | 4 | Wire Rope Corporation of America, Inc. | 100,000 Common Shares | 100 | % | |||||
| AWARCO, Inc. American Wire and Rope Company, Inc. | 1 | Camesa, Inc. | 1,000 Common Shares | 100 | % | |||||
| Prestressed Concrete Strand of America, Inc. | 1 | Camesa, Inc. | 1,000 Common Shares | 1.0 | % | |||||
| Prestressed Concrete Strand of America, Inc. | 2 | Camesa, Inc. | 99,000 Common Shares | 99.0 | % | |||||
Schedule II-1
B. 65% of the following Equity Interests are pledged:
| Issuer |
Certificate No. | Registered Owner |
Number and |
Percentage of Outstanding Equity Interests |
||||||
| Wire Rope Corporation de Mexico I, S. de. X.X. de C.V. | N/A | Wire Rope Corporation of America, Inc. | 1 Partnership Interest | 0.01 | % | |||||
| Wire Rope Corporation de Mexico I, S. de. X.X. de C.V. | N/A | WRCA, LLC | 1 Partnership Interest | 99.99 | % | |||||
| Wire Rope Corporation de Mexico II S. de. X.X. de C.V. | N/A | Wire Rope Corporation of America, Inc. | N/A | 0.01 | % | |||||
| Wire Rope Corporation de Mexico II S. de. X.X. de C.V. | N/A | WRCA, LLC | N/A | 99.99 | % | |||||
2. Debt
| Issuer |
Holder |
Stated Principal Amount |
Date of Note |
Maturity Date | ||||||
| WRCA US Holdings Inc. | WRCA Finance (Luxembourg) S.à x.x. | $ | 72,000,000 | February [7,] 2007 | August [7,] 2015 | |||||
| WRCA Distributor (Cayman) Ltd. | WRCA US Holdings Inc. | $ | 3,713,000 | February [7,] 2007 | N/A | |||||
Schedule II-2
Annex 1 to the
SUPPLEMENT NO. [__], dated as of [ ], to the U.S. Pledge Agreement (the “Pledge Agreement”), dated as of February 8, 2007, among WRCA US HOLDINGS INC., a Delaware corporation (“U.S. Holdings”), CLOSER MERGER SUB INC. (to be merged with and into WIRE ROPE CORPORATION OF AMERICA, INC.), a Delaware corporation, WRCA FINANCE (LUXEMBOURG) S.A X.X., a société à responsabilité limitée organized under the laws of Luxembourg (“LuxFinCo”), each Consolidated Subsidiary listed on Schedule I hereto (each such Consolidated Subsidiary individually a “Subsidiary Pledgor” and collectively, the “Subsidiary Pledgors”; U.S. Holdings, LuxFinCo, Borrower and the Subsidiary Pledgors are referred to collectively herein as the “Pledgors”) and HSBC BUSINESS CREDIT (USA) INC. (“HSBC”), as Agent (in such capacity, the “Agent”) for the Lenders and the L/C Issuer. As used herein, the term “Secured Parties” means, collectively, the Agent, the Lenders and the L/C Issuer.
A. Reference is made to (a) the Loan and Security Agreement, dated as of February 7, 2007 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), among WRCA (Cyprus) Holdings Limited, as the Parent, certain affiliates of the Parent, as pledgors, the Borrower, the agents and lenders from time to time party thereto (the “Lenders”), the Agent, The CIT Group/ Business Credit, Inc., as documentation agent, and JPMorgan Chase Bank, N.A., as syndication agent, and (b) the Guarantee Agreement, dated as of February 8, 2007 (as amended, supplemented or otherwise modified from time to time, the “Guarantee Agreement”) between each of the Guarantors (as defined therein) and the Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement.
C. The Pledgors have entered into the Pledge Agreement in order to induce the Lenders to make Advances and the L/C Issuer to issue Letters of Credit. Pursuant to Section 14.17 of the Credit Agreement, each Consolidated Subsidiary that was not in existence or not a Consolidated Subsidiary on the date of the Loan Agreement is required to enter into the Pledge Agreement as a Pledgor upon becoming a Consolidated Subsidiary if such Consolidated Subsidiary owns or possesses property of a type that would be considered Collateral under the Pledge Agreement. Section 24 of the Pledge Agreement provides that such Consolidated Subsidiaries may become Pledgors under the Pledge Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Consolidated Subsidiary (the “New Pledgor”) is executing this Supplement in accordance with the requirements of the Loan Agreement to become a Pledgor under the Pledge Agreement in order to induce the Lenders to make additional Advance and the L/C Issuer to issue additional Letters of Credit and as consideration for Advances previously made and Letters of Credit previously issued.
Annex 1-1
Accordingly, the Agent and the New Pledgor agree as follows:
Section 1. In accordance with Section 24 of the Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement with the same force and effect as if originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge Agreement applicable to it as a Pledgor thereunder and (b) represents and warrants that the representations and warranties made by it as a Pledgor thereunder are true and correct on and as of the date hereof (except to the extent such representation or warranty specifically relates to an earlier date). In furtherance of the foregoing, the New Pledgor, as security for the payment and performance in full of the Indebtedness (as defined in the Pledge Agreement), does hereby create and grant to the Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Pledgor’s right, title and interest in and to the Collateral (as defined in the Pledge Agreement) of the New Pledgor. Each reference to a “Subsidiary Pledgor” or a “Pledgor” in the Pledge Agreement shall be deemed to include the New Pledgor. The Pledge Agreement is hereby incorporated herein by reference.
Section 2. The New Pledgor represents and warrants to the Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity and implied covenants of good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law.
Section 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Pledgor and the Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
Section 4. The New Pledgor hereby represents and warrants that set forth on Schedule I attached hereto is a true and correct schedule of all its Pledged Securities.
Section 5. Except as expressly supplemented hereby, the Pledge Agreement shall remain in full force and effect.
Section 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, neither party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Pledge Agreement shall not in any way be affected or impaired. 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.
Annex 1-2
Section 8. All communications and notices hereunder shall be in writing and given as provided in Section 15 of the Pledge Agreement. All communications and notices hereunder to the New Pledgor shall be given to it at the address listed in Schedule I hereto.
Section 9. The New Pledgor agrees to reimburse the Agent for its reasonable and documented out-of-pocket expenses in connection with this Supplement, including the reasonable and documented fees, other charges and disbursements of counsel for the Agent.
Section 10. Intercreditor Agreement. To the extent that any applicable provision of this Agreement involving the rights of the Agent with respect to the Collateral or the exercise of remedies against any Collateral conflicts with or is inconsistent with the terms of the Intercreditor Agreement or affects the rights and remedies of the Agent with respect to the Collateral, the provisions of the Intercreditor Agreement shall prevail.
[Remainder of Page Intentionally Left Blank]
Annex 1-3
IN WITNESS WHEREOF, the New Pledgor and the Agent have duly executed this Supplement to the Pledge Agreement as of the day and year first above written.
| [Name of New Pledgor], | ||
| by | ||
| Name: | ||
| Title: | ||
| Address: | ||
| HSBC BUSINESS CREDIT (USA) INC., as Agent, | ||
| by | ||
| Name: | ||
| Title: | ||
Annex 1-4
Schedule I to
Supplement No. [__]
to the Pledge Agreement
Pledged Securities of the New Pledgor
EQUITY INTERESTS
| Issuer |
Number of Certificate |
Registered Owner |
Number and Class of Shares |
Percentage of Equity Interests |
DEBT SECURITIES
| Issuer |
Principal Amount |
Date of Note | Maturity Date |
Schedule I- Supplement 1
