PLEDGE AGREEMENT
EXHIBIT 10.7
PLEDGE AGREEMENT dated as of April 4, 2008 between MSLO Emeril Acquisition Sub LLC, a Delaware
limited liability company (“Pledgor”), and Bank of America, N.A., as collateral agent (in
such capacity, together with any successor collateral agent, the “Collateral Agent”) for
the Secured Parties (as defined below).
Reference is made to the Loan Agreement dated as of April 4, 2008 (as amended, supplemented or
otherwise modified from time to time, the “Loan Agreement”), between the Borrower and Bank
of America, N.A. (together with any successor or assigns, the “Lender”). The Lender has
agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Loan
Agreement. The obligations of the Lender to extend such credit are conditioned upon, among other
things, the execution and delivery of this Agreement. Accordingly, the parties hereto agree as
follows:
1. Definitions.
(a) Loan Agreement. Capitalized terms used in this Agreement and not otherwise
defined herein have the meanings specified in the Loan Agreement. All terms defined in the New
York UCC (as defined herein) and not defined in this Agreement have the meanings specified therein;
the term “instrument” shall have the meaning specified in Article 9 of the New York UCC. “UCC”
means the New York UCC; provided that, if perfection or the effect of perfection or
non-perfection or the priority of the 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, “UCC”
means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority. The rules of construction specified in Article I of the Loan Agreement
also apply to this Agreement.
(b) Other Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
“Accounts” has the meaning set forth in Section 2.
“Aggregate Collateral Value” has the meaning set forth in Section 4.
“Agreement” means this Pledge Agreement, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
“Bank” has the meaning set forth in Section 2.
“Cash Collateral Account” has the meaning set forth in Section 2.
“Collateral” has the meaning set forth in Section 2.
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“Collateral Agent” has the meaning set forth in the preamble to this Agreement.
“Collateral Table” has the meaning set forth in Section 4.
“Collateral Value”, with respect to (i) a money market fund, shall be determined at
any given time by multiplying (A) the most recent per share net asset value of such money market
fund obtained from the Wall Street Journal, or such other reputable reporting service as the
Collateral Agent may reasonably select, times (B) the number of shares of such money market fund
held in the Cash Collateral Account as collateral. In the event that such net asset value is not
available in the Wall Street Journal, or such other reputable reporting service as the Collateral
Agent may reasonably select, the Collateral Value shall be the value quoted to the Collateral Agent
by a reputable brokerage firm selected by the Collateral Agent and (ii) with respect to cash, shall
be the amount of such cash.
“Eligible Collateral” has the meaning set forth in Section 4.
“Guaranty” means the Continuing and Unconditional Guaranty dated as of April 4, 2008
made by each Guarantor in favor of the Collateral Agent, as the same may be, amended, amended and
restated, modified or supplemented from time to time.
“Indemnitees” has the meaning set forth in Section 14(b).
“Lender” has the meaning set forth in the preamble to this Agreement.
“Loan Agreement” has the meaning set forth in the preamble to this Agreement.
“Outstanding Balance” means the outstanding principal balance of the Loan from time to
time.
“Pledgor” has the meaning set forth in the preamble to this Agreement.
“Secured Obligations” means, collectively, (i) the “Obligations” as defined in the
Loan Agreement, (ii) the “Guaranteed Obligations” as defined in the Guaranty and (iii) all
obligations and liabilities of Pledgor hereunder.
“Secured Parties” means, collectively, the Bank, the Collateral Agent and all other
Guarantied Parties (as defined in the Guaranty).
“Securities Intermediary” has the meaning set forth in Section 13.
“Security Interest” has the meaning set forth in Section 2.
2. Grant of Security Interest. As security for the payment or performance, as the
case may be, in full of the Secured Obligations, including without limitation, obligations under
the Guaranty, Pledgor hereby assigns and pledges to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security interest (the
“Security Interest”) and right of set-off against, all right, title and interest in or to
all of the following assets
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and properties now owned or at any time hereafter acquired by Pledgor or in which Pledgor now
has or at any time in the future may acquire any right, title or interest (collectively, the
“Collateral”):
(a) (i) Account number ending in 0000000 held by Bank of America, N.A. (the “Bank”) as
agent or custodian for Pledgor under an agreement for custody, safekeeping, investment management,
investment advisory or similar services between Pledgor and Bank (the “Cash Collateral
Account”);
(ii) All successor and replacement accounts, regardless of the numbers of such accounts or the
offices at which such accounts are maintained; and
(iii) Any linked or related accounts or subaccounts held by any affiliate of Bank of America
Corporation or any entity acting as clearing broker for any of the accounts (the accounts described
in clauses (i), (ii) and (iii), collectively, the “Accounts”);
(b) All rights of Pledgor in connection with the Accounts, including any rights against any
securities intermediary, any affiliate of Bank of America Corporation or any clearing broker in
connection with the Accounts;
(c) All investment property, security entitlements, financial assets, certificated securities,
uncertificated securities, money, deposit accounts, instruments, certificates of deposit, general
intangibles, and all other investments or property of any sort now or hereafter held, maintained or
administered in, or credited to, the Accounts; but excluding collective investment funds managed by
Bank of America, N.A., including without limitation any interest in variable amount notes, commonly
known as “master notes”; and
(d) All present and future income, proceeds, earnings, increases, and substitutions from or
for the Collateral of every kind and nature, including without limitation all payments, interest,
profits, distributions, benefits, rights, options, warrants, dividends, stock dividends, stock
splits, stock rights, regulatory dividends, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Collateral, shares of stock of different par value or
no par value issued in substitution or exchange for shares included in the Collateral, and all
other property Pledgor is entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, and general intangibles.
3. Maintaining the Cash Collateral Account. Notwithstanding any other term or
condition to the contrary in any other agreement relating to the Cash Collateral Account or any
other Account, Pledgor (a) hereby grants “control” (within the meaning of Sections 9-106 and 8-106
of the UCC) of the Cash Collateral Account, the other Accounts and the other Collateral to the
Collateral Agent and authorizes the Bank to accept instructions and entitlement orders from the
Collateral Agent with respect to the Collateral without the further consent of Pledgor, (b) agrees
that so long as this Agreement is in effect, Pledgor shall not be entitled to give instructions or
entitlement orders to the Bank or any other Person with respect to the Collateral (except that
Pledgor may request the Collateral Agent to give instructions to the Bank with respect to the
Collateral in accordance with the terms of this Agreement) and Pledgor shall not grant “control”
(within the meaning of Sections 9-106 and 8-106 of the UCC) of the Collateral
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Account and the other Collateral to any other Person and (c) except as provided by the
provisions of Sections 4(c) and 17(k), no asset or amount in the Accounts shall be paid or released
to or for the account of Pledgor.
4. Collateral Maintenance.
(a) On the date hereof, Pledgor has deposited in the Cash Collateral Account $30,000,000 in
cash. If requested by Pledgor, the Collateral Agent may direct the Bank to invest amounts on
deposit in the Cash Collateral Account in one or more money market funds that the Collateral Agent
may approve in its sole discretion; provided, however, that any such money market
fund investments are permitted pursuant to Parent Guarantor’s board approved investment policy as
previously provided by Parent Guarantor to the Collateral Agent. At all times during the term of
this Agreement, Pledgor agrees to maintain in the Cash Collateral Account, as security for the
Secured Obligations, Collateral of a type described on the table set forth below this paragraph
(collectively, the “Collateral Table”) and otherwise acceptable to the Collateral Agent
(“Eligible Collateral”) with an Aggregate Collateral Value at least equal to the
Outstanding Balance. “Aggregate Collateral Value” means, as of any date of determination,
an amount equal to the product obtained by multiplying (i) the Collateral Value as of such date by
(ii) the Margin Call Percentage shown on the following table (the “Collateral Table”) for
the applicable type of Eligible Collateral:
| Eligible Collateral Type | Margin Call Percentage | |||
Money Market |
100 | % | ||
Cash |
100 | % | ||
The Collateral Agent shall have no obligation to give any Collateral Value to any Collateral
of a type not shown on the Collateral Table.
(b) If the Outstanding Balance exceeds at any time the Aggregate Collateral Value, then
Pledgor shall have two (2) Business Days from the date notification (whether oral or written) of
such noncompliance is delivered to Pledgor, to either deposit cash into the Cash Collateral
Account, or prepay the principal of the Loan such that, after giving effect thereto, the
Outstanding Balance is less than or equal to the Aggregate Collateral Value as of the date on which
such action is taken. Any such prepayment of the Loan shall be applied to the principal
installments due under Section 2.2(b) of the Loan Agreement in the inverse order of their maturity.
(c) Subject to the other provisions of this Section 4 and any written agreement to the
contrary with the Collateral Agent, if no Default or Event of Default has occurred and is
continuing or would result from such action, upon any repayment or prepayment of the outstanding
principal amount of the Loan, upon the request of Pledgor, the Collateral Agent shall release
Collateral from the Cash Collateral Account having Collateral Value up to the lesser of (i) the
principal amount of the Loan so repaid or prepaid and (ii) the amount by which the Aggregate
Collateral Value exceeds the Outstanding Balance at the date of request (and direct the sale or
trade of investments in the Cash Collateral Account to the extent necessary to do so);
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provided that, after giving effect to any such release of Collateral, the Outstanding
Balance is less than or equal to the Aggregate Collateral Value.
5. Pledgor’s Covenants, Representations and Warranties. Pledgor covenants, represents
and warrants that unless compliance is waived by the Collateral Agent in writing:
(a) Pledgor is the legal and beneficial owner of all the Collateral free and clear of any and
all liens, encumbrances, or interests of any third parties other than the security interest of
Collateral Agent, for the benefit of the Secured Parties, and will keep the Collateral free of all
liens, claims, security interests and encumbrances of any kind or nature, whether voluntary or
involuntary, except the security interest of Collateral Agent, for the benefit of the Secured
Parties.
(b) Pledgor shall, at Pledgor’s expense, take all actions necessary or advisable from time to
time to maintain the first priority and perfection of the security interest of the Collateral Agent
in the Collateral and shall not take any actions that would alter, impair or eliminate said
priority or perfection.
(c) Pledgor agrees to pay prior to delinquency all taxes, charges, liens and assessments
against the Collateral, and upon the failure of Pledgor to do so, the Collateral Agent at its
option may pay any of them and shall be the sole judge of the legality or validity thereof and the
amount necessary to discharge the same.
(d) If any of the Collateral is margin stock as defined in Regulation U promulgated by the
Board of Governors of the Federal Reserve System of the United States, Pledgor will provide
Collateral Agent a properly executed Form U-1 Purpose Statement. Pledgor will comply with the
requirements and restrictions imposed by Regulation U.
(e) Pledgor’s exact legal name is correctly set forth on the signature page hereof. Pledgor
will notify the Collateral Agent in writing at least twenty (20) days prior to any change in
Pledgor’s name or identity.
(f) Pledgor’s chief executive office is, and has been for the entire period of the existence
of Pledgor, located, in the State of New York. Pledgor is organized under the laws of the State of
Delaware. Pledgor shall give the Collateral Agent at least twenty (20) days’ prior written notice
before changing the location of its chief executive office, type of organization, business
structure or state of organization.
(g) Pledgor’s organizational identification number assigned by the State of Delaware is
correctly set forth on the signature page hereof. Pledgor shall promptly notify the Collateral
Agent of any change of its organizational identification number.
6. Collateral Agent Appointed Attorney-in-Fact. Pledgor hereby appoints the
Collateral Agent the attorney-in-fact of Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof at any time after an Event of Default
has occurred and is continuing, which appointment is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, the Collateral Agent shall have the
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right, upon the occurrence and during the continuance of an Event of Default (except in the
case of clauses (b), (g) and (j), which right may be exercised at any time), with full power of
substitution either in the Collateral Agent’s name or in the name of Pledgor (but subject to any
applicable terms of this Agreement): (a) to endorse, receive, accept and collect all checks,
drafts, other payment orders and instruments representing or included in the Collateral or
representing any payment, dividend or distribution relating to any Collateral or to take any other
action to enforce, collect or compromise any of the Collateral and to transfer any Collateral
(including converting physical certificates to book-entry holdings) into the name of the Collateral
Agent or its nominee or any broker-dealer (which may be an affiliate of the Collateral Agent); (b)
to execute any control agreement covering any Collateral on Pledgor’s behalf and as
attorney-in-fact for Pledgor in order to perfect the Collateral Agent’s first priority and
continuing security interest in the Collateral and in order to provide the Collateral Agent with
control of the Collateral, and Pledgor’s signature on this Agreement or other authentication of
this Agreement shall constitute an irrevocable direction by Pledgor to any bank, custodian, broker
dealer, any other securities intermediary or commodity intermediary holding any Collateral or any
issuer of any letters of credit to comply with any instructions or entitlement orders of the
Collateral Agent with respect to the Collateral without further consent of Pledgor; (c) to
participate in any recapitalization, reclassification, reorganization, consolidation, redemption,
stock split, merger or liquidation of any issuer of securities which constitute Collateral, and in
connection therewith Collateral Agent may deposit or surrender control of the Collateral, accept
money or other property in exchange for the Collateral, and take such action as it deems proper in
connection therewith, and any money or property received on account of or in exchange for the
Collateral shall be applied to the Indebtedness or held by the Collateral Agent thereafter as
Collateral pursuant to the provisions hereof; (d) to exercise any right, privilege or option
pertaining to any Collateral, but the Collateral Agent has no obligation to do so; (e) to file any
claims, take any actions or institute any proceedings which Collateral Agent determines to be
necessary or appropriate to collect or preserve the Collateral or to enforce the Collateral Agent’s
rights with respect to the Collateral; (f) to execute in the name or otherwise authenticate on
behalf of Pledgor any record reasonably believed necessary or appropriate by the Collateral Agent
for compliance with laws, rules or regulations applicable to any Collateral, or in connection with
exercising the Collateral Agent’s rights under this Agreement; (g) to file any financing statement
relating to this Agreement electronically, and Collateral Agent’s transmission of Pledgor’s
signature on and authentication of the financing statement shall constitute Pledgor’s signature on
and authentication of the financing statement; (h) to make any compromise or settlement it deems
desirable or proper with reference to the Collateral; (i) to do and take any and all actions with
respect to the Collateral and to perform any of Pledgor’s obligations under this Agreement; and (j)
to execute any documentation reasonably believed necessary by the Collateral Agent for compliance
with Rule 144 or any other restrictions, laws, rules or regulations applicable to any Collateral
hereunder that constitutes restricted or control securities under the securities laws. The
foregoing appointments are irrevocable and coupled with an interest and shall not be revoked
without the Collateral Agent’s prior written consent. To the extent permitted by law, Pledgor
hereby ratifies all said attorney-in-fact shall lawfully do by virtue hereof.
7. Voting Rights.
(a) So long as no Event of Default shall have occurred and is continuing, Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining to
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the Collateral or any part thereof for any purpose not inconsistent with the terms of this
Agreement or any document or agreement executed in connection herewith.
(b) Upon the occurrence and during the continuance of an Event of Default, all rights of
Pledgor to exercise the voting and other consensual rights which it would otherwise be entitled to
exercise pursuant to subsection (a) above shall cease, and the Collateral Agent shall thereupon
have the sole right to exercise such voting and other consensual rights.
8. Remedies. If an Event of Default shall occur and be continuing, the Collateral
Agent may do any one or more of the following, to the extent permitted by law:
(a) Exercise as to any or all of the Collateral all the rights, powers and remedies of an
owner.
(b) Enforce the security interest given hereunder pursuant to the UCC and any other applicable
law.
(c) Sell all or any part of the Collateral at any public or private sale in accordance with
the UCC, without advertisement, in such manner and order as Collateral Agent may elect. Collateral
Agent may purchase the Collateral for its own account at any such sale. The Collateral Agent shall
give Pledgor such notice of any public or private sale as may be required by the UCC, provided that
to the extent notice of any such sale is required by the UCC or other applicable law, Pledgor
agrees that at least 10 (ten) days notice to 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 and
provided further that, if the Collateral Agent fails to comply with this sentence in any respect,
its liability for such failure shall be limited to the liability (if any) imposed on it as a matter
of law under the UCC or other applicable law. Pledgor acknowledges that Collateral may be sold at
a loss to Pledgor, and that, in such event, the Collateral Agent shall have no liability or
responsibility to Pledgor for such loss. Pledgor further acknowledges that a private sale may
result in prices and other terms less favorable to the seller than if such sale were a public sale
and, notwithstanding such circumstances, agrees that no such private sale shall, to the extent
permitted by applicable law, be deemed not to be “commercially reasonable” solely as a result of
such prices and other sale terms. Upon any such sale, the Collateral Agent shall have the right to
deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such
sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever
kind, including any equity or right of redemption of Pledgor that may be waived or any other right
or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all
rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or
hereafter adopted. Without limiting any other rights and remedies available to the Collateral
Agent, Pledgor expressly acknowledges and agrees that with respect to Collateral consisting of
notes, bonds or other securities which are not sold on a recognized market, the Collateral Agent
shall be deemed to have conducted a commercially reasonable sale of such Collateral if (i) such
sale is conducted by any nationally recognized broker-dealer (including any affiliate of the
Collateral Agent), investment banker or any other method common in the securities industry, and
(ii) if the purchaser is the Collateral Agent or any Secured Party, the sale price received by such
Person in connection with such sale is reasonably supported by
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quotations received from one or more other nationally recognized broker-dealers, investment
bankers or other financial institutions.
(d) Enforce the security interest of Collateral Agent in any deposit account which is part of
the Collateral by applying such account to the Secured Obligations.
(e) Exercise any other remedy provided under this Agreement or by any applicable law.
(f) Comply with any applicable state or federal law requirements in connection with a
disposition of the Collateral and such compliance will not be considered to affect adversely the
commercial reasonableness of any sale or other disposition of the Collateral.
(g) Sell the Collateral without giving any warranties as to the Collateral. Collateral Agent
may specifically disclaim any warranties of title or the like. This procedure will not be
considered to affect adversely the commercial reasonableness of any sale or other disposition of
the Collateral.
Pledgor agrees that the Collateral may be sold as provided for in this Pledge Agreement and
expressly waives any rights of notice of sale, advertisement procedures, or related provisions
granted under applicable law, including the New York Lien Law. All cash proceeds received by or on
behalf of the Collateral Agent in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral may, following the payment of the fees and expenses of the
Collateral Agent, be held by the Collateral Agent as collateral for, and/or then or at any time
thereafter applied in whole or in part by the Collateral Agent to, the Secured Obligations in such
order as the Collateral Agent may elect in accordance with the provisions of the Loan Documents.
Any surplus of such cash or cash proceeds held by or on behalf of the Collateral Agent and
remaining after payment in full of all the Secured Obligations shall be paid to Pledgor. If the
proceeds of sale, collection or other realization of or upon the Collateral pursuant to this
Section 8 are insufficient to cover the costs and expenses of such realization and the payment in
full of all Secured Obligations, Pledgor and the Guarantors shall remain liable for any deficiency
to the extent Pledgor and such Guarantors are obligated therefor under the other documents executed
in connection with the Secured Obligations and this Agreement, as well as the fees and expenses of
any Person employed by the Collateral Agent or any other Secured Party to collect such deficiency
in accordance with Section 14.
9. Right to Cure; Limitation on Collateral Agent’s Duties. If Pledgor fails to
perform any agreement contained herein, the Collateral Agent may perform or cause performance of
such agreement and the expenses of the Collateral Agent incurred in connection therewith shall be
payable by Pledgor under Section 14. Any powers conferred on the Collateral Agent hereunder are
solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for reasonable care in the 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 or as to the taking of any necessary steps to preserve rights against
prior 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 the Collateral in its
possession if the Collateral is accorded treatment
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substantially equal to that which the Collateral Agent accords its own property, it being
understood that the Collateral Agent shall not have any responsibility for (a) ascertaining,
exercising or taking other action or giving Pledgor notice with respect to subscription rights,
calls, conversions, exchanges, maturities, lenders or other matters relative to any Collateral,
whether or not the Collateral Agent has or is deemed to have knowledge of such matters, or (b)
taking any necessary steps to preserve rights against any parties with respect to any Collateral.
the Collateral Agent shall not be liable for any loss to the Collateral resulting from acts of God,
war, civil commotion, fire, earthquake, or other disaster or for any other loss or damage to the
Collateral except to the extent such loss is determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the Collateral Agent’s gross negligence or
willful misconduct.
10. Waivers. The Collateral Agent shall be under no duty or obligation whatsoever and
Pledgor waives any right to require the Collateral Agent to (a) make or give any presentment,
demands for performances, notices of nonperformance, protests, notices of protest or notices of
dishonor in connection with any obligations or evidences of indebtedness held by the Collateral
Agent as Collateral, or in connection with any obligation or evidences of indebtedness which
constitute in whole or in part the Secured Obligations, (b) proceed against any Person, (c) proceed
against or exhaust any collateral, or (d) pursue any other remedy in the Collateral Agent’s power;
and Pledgor waives any defense arising by reason of any disability or other defense of any Loan
Party or any other Person, or by reason of the cessation from any cause whatsoever of the liability
of any Loan Party or any other Person. Until the Secured Obligations are paid in full, Pledgor
waives any right of subrogation, reimbursement, indemnification, and contribution (contractual,
statutory or otherwise), including without limitation any claim or right of subrogation under the
Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, arising from the existence or
performance of this Agreement, and Pledgor waives any right to enforce any remedy which the
Collateral Agent or any Secured Party now has or may hereafter have against any Loan Party or
against any other Person and waives any benefit of and any right to participate in any Collateral
or security whatsoever now or hereafter held by the Collateral Agent or any Secured Party.
Pledgor agrees that it is solely responsible for keeping itself informed as to all circumstances
which bear upon the risk of nonpayment or the risk of a margin call or liquidation of the
Collateral.
11. Transfer, Delivery and Return of Collateral.
(a) Pledgor shall immediately deliver or cause to be delivered to the Collateral Agent (or the
Securities Intermediary, if any) (i) any certificates or instruments now or hereafter representing
or evidencing Collateral and such certificates and instruments shall be in suitable form for
transfer without restriction or stop order by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank in form and substance reasonably satisfactory to the
Collateral Agent, and (ii) after an Event of Default has occurred and is continuing, in the same
form as received (with any necessary endorsement), all dividends and other distributions paid or
payable in cash in respect of any Collateral and any such amounts, if received by Pledgor, shall be
received in trust for the benefit of the Collateral Agent, for the benefit of the Secured Parties,
and be segregated from the other property or funds of Pledgor.
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(b) The Collateral Agent may at any time deliver the Collateral or any part thereof to Pledgor
and the receipt by Pledgor shall be a complete and full acquittance for the Collateral so
delivered, and the Collateral Agent shall thereafter be discharged from any liability or
responsibility therefor.
12. Continuing Agreement and Powers.
(a) This is a continuing Agreement and all the rights, powers and remedies hereunder shall,
unless otherwise limited herein, apply to all past, present and future Secured Obligations,
including that arising under successive transactions which shall either continue the Secured
Obligations, increase or decrease it, and notwithstanding the cessation of business, dissolution or
bankruptcy of any Loan Party, or any other event or proceeding affecting any Loan Party.
(b) Until all Secured Obligations shall have been paid in full, the power of sale and all
other rights, powers and remedies granted to the Collateral Agent hereunder shall continue to exist
and may be exercised by the Collateral Agent at the time specified hereunder irrespective of the
fact that the Secured Obligations or any part thereof may have become barred by any statute of
limitations. Pledgor waives the benefit of any statute of limitations as applied to this
Agreement.
13. Securities Intermediary. If permitted by the Collateral Agent, some or all of the
Collateral may be held at a broker or other securities intermediary (the “Securities
Intermediary”). Pledgor shall pay to the Securities Intermediary any charges or costs imposed
by the Securities Intermediary. Pledgor at no time shall request that the Securities Intermediary
release any Collateral to Pledgor, except as expressly permitted by the Collateral Agent. The
Collateral Agent may require that Pledgor obtain a control agreement, signed by the Securities
Intermediary, in form and substance reasonably acceptable to the Collateral Agent. The Collateral
Agent may, at any time but in accordance with the terms of this Agreement and any control
agreement, require the Securities Intermediary to do any or all of the following: (a) disburse any
or all of the Collateral to the Collateral Agent; (b) allow the Collateral Agent (and not Pledgor)
to exercise any rights relating to the Collateral; (c) sell some or all of the Collateral and remit
the sales proceeds (less the Securities Intermediary’s normal sales charge) to the Collateral
Agent; and (d) buy and sell Collateral only upon the instructions of the Collateral Agent (and not
Pledgor). If the Collateral Agent assigns or transfers its rights under this Agreement and the
Collateral Agent is the Securities Intermediary for any or all of the Collateral, Pledgor agrees
that the Collateral Agent, in such capacity, is irrevocably directed by Pledgor to comply with
instructions or entitlement orders with respect to such Collateral originated by any assignee or
transferee of this Agreement without further consent of Pledgor.
14. Costs; Indemnification.
(a) Pledgor agrees to pay or reimburse (i) all costs and reasonable attorney’s fees incurred
by the Collateral Agent and the Secured Parties in connection with the enforcement, collection or
protection of its rights in connection with this Agreement and the other Loan Documents to which
Pledgor is party, including its rights under this Section and (ii) all reasonable costs and
expenses incurred by the Collateral Agent in the administration of
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this Agreement and the other Loan Documents to which Pledgor is a party. As used in this
paragraph, “attorneys’ fees” includes the allocated costs of in-house counsel. In addition,
Pledgor agrees to, upon reasonable notice from the Collateral Agent, pay any and all stamp and
other taxes or fees payable or determined to be payable in connection with the execution and
delivery of this Agreement and the other documents to be delivered hereunder, and agrees to save
the Collateral Agent harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes or fees.
(b) Pledgor agrees to indemnify and hold the Collateral Agent and the other Secured Parties
and their parent entities, Subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys, and assigns (collectively, the “Indemnitees”), harmless from any
loss, liability, damages, judgments, and costs of any kind relating to or arising directly or
indirectly out of (i) this Agreement or any other Loan Document, the Security Interest or the
Collateral and (ii) any litigation or proceeding related to or arising out of this Agreement, any
such document, the Security Interest or the Collateral, in each case other than arising as a result
of any such Indemnitee’s gross negligence or willful misconduct. This indemnity includes but is
not limited to reasonable attorneys’ fees (including the allocated cost of in-house counsel).
Under no circumstances shall any of the Indemnitees have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan Document or arising
out of its activities in connection herewith or therewith.
(c) Any such amounts payable as provided hereunder shall be additional Secured Obligations
secured hereby. The provisions of this Section 14 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan Document, the consummation
of the transactions contemplated hereby, the repayment of any of the Secured Obligations, 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 Collateral Agent or any other Secured
Party. All amounts due under this Section 14 shall be payable upon demand.
15. Notices. All notices and other communications hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 12 of the Loan
Agreement, and (a) if given to Pledgor shall be sent to the address or fax number listed in Section
12 of the Loan Agreement, or to such other addresses or fax numbers as Pledgor may specify from
time to time in writing and (b) if given to the Collateral Agent, shall be sent to the following
address, or sent by facsimile to the fax number listed below, or to such other addresses as the
Collateral Agent may specify from time to time in writing:
Collateral Agent:
|
Bank of America, N.A. | |
| 000 Xxxxx Xxxxxx, Xxxxx 00X | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxx X. Xxxxxx | ||
| Telecopy: 000-000-0000 |
12
with a copy to:
|
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP | |
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000-0000 | ||
| Attention: Xxxxxxx X. Xxx | ||
| Telecopy: 000-000-0000 |
16. Dispute Resolution Provision. The Dispute Resolution Provision as set forth in
Section 13.13 of the Loan Agreement shall apply. By agreeing to binding arbitration, the parties
irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the
extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they
may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in
effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE
CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE
EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT
PERMITTED BY LAW.
17. Miscellaneous.
(a) Cumulative Rights and No Waiver. Each and every right granted to the Collateral
Agent and the Secured Parties under any Loan Document, or allowed it by law or equity shall be
cumulative of each other and may be exercised in addition to any and all other rights of the
Collateral Agent or the Secured Parties, and no delay in exercising any right shall operate as a
waiver thereof, nor shall any single or partial exercise by the Collateral Agent or the Secured
Parties of any right preclude any other or future exercise thereof or the exercise of any other
right. Pledgor expressly waives any presentment, demand, protest or other notice of any kind,
including but not limited to notice of intent to accelerate and notice of acceleration, except in
the event and to the extent that any such notice is expressly required by the terms of any Loan
Document. No notice to or demand on Pledgor in any case shall, of itself, entitle Pledgor to any
other or future notice or demand in similar or other circumstances.
(b) Applicable Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. To the extent that the Collateral Agent or any Secured Party
has greater rights or remedies under federal law, whether as a national bank or otherwise, this
paragraph shall not be deemed to deprive such Person of such rights and remedies as may be
available under federal law.
(c) Successor and Assigns. This Agreement is binding on Pledgor and its successors and
assignees and shall inure to the benefit of the Collateral Agent and each other Secured Party and
their successors and assigns; provided that Pledgor may not assign any of its rights or
obligations under this Agreement without the Collateral Agent’s prior written consent (and any
purported assignment in violation of this Section 16(c) shall be null and void).
(d) Amendment. No modification, consent, amendment or waiver of any provision of this
Agreement, nor consent to any departure by Pledgor therefrom, shall be effective unless the same
shall be in writing and signed by the Collateral Agent and Pledgor.
13
(e) Headings. Section and paragraph headings are for reference only and shall not affect
the interpretation or meaning of any provisions of this Agreement.
(f) Severability. If any part of this Agreement is not enforceable, the rest of the
Agreement may be enforced.
(g) Survivability. All covenants, agreements, representations and warranties made by
Pledgor herein or in the other Loan Documents to which Pledgor is a party shall survive the making
of the Loan and shall continue in full force and effect so long as the Secured Obligations, or any
portion thereof, are outstanding.
(h) Counterparts. This Agreement may be executed in as many counterparts as necessary or
convenient, and by the different parties on separate counterparts each of which, when so executed,
shall be deemed an original but all such counterparts shall constitute but one and the same
agreement. Signatures may be delivered via telecopy or in PDF format via electronic mail and
signature delivered by such means shall be deemed originals for all purposes.
(i) Right of Set-Off. In addition to any rights and remedies of the Secured Parties
provided by applicable law, upon the occurrence and during the continuance of any Event of Default,
each Secured Party is authorized at any time and from time to time, without prior notice to
Pledgor, any such notice being waived by Pledgor to the fullest extent permitted by applicable law,
to set off and apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by, such Secured Party to or
for the credit or the account of the respective Loan Parties and their Subsidiaries against any and
all Secured Obligations owing to such Secured Party hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not such Secured Party or Affiliate shall have
made demand under this Agreement or any other Loan Document and although such obligations may be
contingent or unmatured or denominated in a currency different from that of the applicable deposit
or indebtedness. Each Secured Party agrees promptly to notify Pledgor and the Collateral Agent in
writing after any such set off and application made by such Secured Party; provided that
the failure to give such notice shall not affect the validity of such setoff and application. The
rights of the Collateral Agent and each Secured Party under this Section 17(i) are in addition to
other rights and remedies (including other rights of setoff) that the Collateral Agent and such
Secured Party may have.
(j) Security Interest Absolute. All rights of the Collateral Agent hereunder, the
Security Interest and all obligations of 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 Secured Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any increase in, or any change in the time, manner
or place of payment of, or in any other term of, all or any of the Secured Obligations, 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, (c) any exchange, release or non-perfection of
any lien on other collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the Secured Obligations or (d)
subject to the terms of Section 17(k), any other circumstance that
14
might otherwise constitute a defense available to, or a discharge of, Pledgor in respect of
the Secured Obligations or this Agreement.
(k) Termination or Release. (i) This Agreement and the Security Interest shall terminate
with respect to the Collateral on the earlier to occur of (A) the Collateral Delivery Date and (B)
the date on which all the outstanding Secured Obligations have been indefeasibly paid in full and
the Secured Parties have no further commitment under the Loan Agreement or other agreements
evidencing the Secured Obligations.
(ii) If any funds are released from the Cash Collateral Account pursuant to Section 4(c), the
security interest in such funds shall be automatically released.
(iii) In connection with any termination or release pursuant to paragraph (i) above, the
Collateral Agent shall execute and deliver to Pledgor, at Pledgor’s expense, all documents that
Pledgor shall reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 17(k) shall be without recourse to or warranty by
the Collateral Agent.
(l) General Authority of the Collateral Agent. By acceptance of the benefits of this
Agreement and any other Loan Documents, each Secured Party (whether or not a signatory hereto)
shall be deemed irrevocably (a) to consent to the appointment of the Collateral Agent as its agent
hereunder and under such other Loan Documents, (b) to confirm that the Collateral Agent shall have
the authority to act as the exclusive agent of such Secured Party for the enforcement of any
provisions of this Agreement and such other Loan Documents against Pledgor, the exercise of
remedies hereunder or thereunder and the giving or withholding of any consent or approval hereunder
or thereunder relating to any Collateral or Pledgor’s obligations with respect thereto, (c) to
agree that it shall not take any action to enforce any provisions of this Agreement or any other
Loan Document against Pledgor, to exercise any remedy hereunder or thereunder or to give any
consents or approvals hereunder or thereunder except as expressly provided in this Agreement or any
other Loan Document and (d) to agree to be bound by the terms of this Agreement and any other Loan
Documents. The Collateral Agent may resign at any time by giving written notice thereof to the
Secured Parties and Pledgor. Upon any such resignation, the Lender shall appoint a successor
Collateral Agent who shall be willing to accept, and accepts, such appointment within thirty (30)
days after the retiring Collateral Agent shall have given notice of resignation (such appointment
to be subject to the prior written approval of Pledgor, which approval may not be unreasonably
withheld or delayed and shall not be required upon the occurrence and during the continuance of an
Event of Default). Upon the acceptance of such appointment by the successor Collateral Agent, such
successor Collateral Agent shall succeed to and become vested with all the rights, powers and
privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations under this Agreement and the other Loan Documents (but
shall continue to have the benefit of Sections 14, 16 and 17(i) hereof).
(m) Financing Statements. Pledgor hereby irrevocably authorizes the Collateral Agent
to file one or more financing statements describing all or part of the Collateral, and continuation
statements, or amendments thereto, relative to all or part of the Collateral as authorized by
applicable law. Such financing statements, continuation statements and
15
amendments will contain any other information required by the UCC for the sufficiency or
filing office acceptance of any financing statement, continuation statement or amendment, including
the type of organization Pledgor is and any organizational identification number issued to Pledgor.
Pledgor agrees to furnish any such information to the Collateral Agent promptly upon request.
Pledgor also ratifies its authorization for the Collateral Agent to have filed any initial
financing statement or amendments thereto filed prior to the date hereof.
(n) Further Assurances. From time to time, Pledgor shall, at the request of the
Collateral Agent, execute such other agreements, documents or instruments or take any other actions
in connection with this Agreement as the Collateral Agent may reasonably deem necessary to evidence
or perfect the security interests granted herein, to maintain the first priority of the security
interests, or to effectuate the rights granted to the Collateral Agent herein, but their failure to
do so shall not limit or affect any security interest or any other rights of the Collateral Agent
in and to the Collateral. Pledgor will execute and deliver to the Collateral Agent any stock
powers, instructions to any securities intermediary, issuer or transfer agent, proxies, or any
other documents of transfer that the Collateral Agent requests in order to perfect, obtain control
or otherwise protect the Collateral Agent’s security interest in the Collateral or to effect the
Collateral Agent’s rights under this Agreement. Such powers or documents may be executed in blank
or completed prior to execution, as reasonably requested by the Collateral Agent.
[This space left intentionally blank.]
Pledgor’s Chief Executive Office:
|
PLEDGOR: | |
00 Xxxx 00xx Xxxxxx
|
XXXX EMERIL ACQUISITION SUB LLC | |
Xxx Xxxx, XX 00000 |
| By: | /s/ Xxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
Pledgor’s organizational identification number
assigned by the State of Delaware:
assigned by the State of Delaware:
4523889
| COLLATERAL AGENT: BANK OF AMERICA, N.A., as Collateral Agent |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
Acknowledged and Agreed
this 4th day of April, 2008:
this 4th day of April, 2008:
| BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
[Signature page to pledge Agreement]
