PLEDGE AGREEMENT
Exhibit 10.4
PLEDGE AGREEMENT, dated as of March 9, 2006, among: (1) W LAB ACQUISITION CORP., a Delaware
corporation (hereinafter, together with its successors in title and assigns, called the
“Borrower”); (2) NEXTERA ENTERPRISES, INC., a Delaware corporation (hereinafter, together with its
successors in title and assigns, called the “Parent Company”, and, together with the
Borrower, called, collectively, the “Principal Companies” and, singly, a “Principal
Company”); (3) the Subsidiaries of the Parent Company and of the Borrower from time to time
party hereto (all of the Subsidiaries of the Parent Company or of the Borrower from time to time
party hereto and bound hereby being hereinafter, together with their successors in title and
assigns, called, collectively, the “Subsidiary Guarantors”) (the Parent Company, the
Borrower and each Subsidiary Guarantor from time to time party to or otherwise bound by this
Agreement being hereinafter called, collectively, the “Pledgors”, and, singly, a
“Pledgor”); and (4) NEWSTAR FINANCIAL, INC., as administrative agent and collateral agent
for the benefit of Secured Parties (hereinafter, together with its successors as administrative
agent for the benefit of Secured Parties, called, the “Pledgee”).
RECITALS:
A. The Parent Company, the Borrower, the several Lenders from time to time party thereto, and
NewStar Financial, Inc., as Administrative Agent for the Lenders, are party to the Credit
Agreement, dated as of March 9, 2006, providing for the making of Credit Extensions to the
Borrower, all as contemplated and provided thereby.
B. Each Subsidiary Guarantor from time to time party hereto is a direct or indirect Subsidiary
of the Parent Company or of the Borrower.
C. The Parent Company, the Borrower and the Subsidiary Guarantors have guaranteed all of the
Obligations of each of the other Loan Parties under the Loan Documents pursuant to the Guaranty
Agreement, dated as of March 9, 2006 (as amended, supplemented or otherwise modified from time to
time, the “Guaranty Agreement”), entered into by the Parent Company, the Borrower, and
NewStar Financial, Inc., as the administrative agent for the benefit of the Secured Parties.
D. It is a condition precedent to the initial Credit Extension made under the Credit Agreement
and the other Loan Documents that each of the Parent Company, the Borrower and the Subsidiary
Guarantors shall have executed and delivered this Agreement.
E. Each Pledgor will obtain substantial direct or indirect financial and other benefits from
Credit Extensions made or to be made to the Borrower under the Credit Agreement and the other Loan
Documents, and, accordingly, each Pledgor desires to enter into this Agreement in order to satisfy
the condition precedent described in preceding Recital D and in order to induce Secured
Parties to make Credit Extensions to the Borrower under the Credit Agreement and the other Loan
Documents.
NOW, THEREFORE, in consideration of the foregoing and the substantial direct or indirect
financial and other benefits accruing to each Pledgor, the receipt and
sufficiency of which are hereby acknowledged, each Pledgor hereby, jointly and severally, makes the following
representations and warranties to the Pledgee for the benefit of Secured Parties and hereby,
jointly and severally, covenants and agrees with the Pledgee for the benefit of Secured Parties as
follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor for the benefit
of each of the Secured Parties in order to secure the full and prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of all of the Obligations (as that term is defined
in the Credit Agreement).
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized terms used
herein and defined in the Credit Agreement shall be used herein as therein defined. Reference to
singular terms shall include the plural and vice versa.
(b) The following capitalized terms used herein shall have the definitions specified below:
“Adverse Claim” shall have the meaning given such term in Section 8-102(a)(1) of the
UCC.
“Agreement” shall mean this Pledge Agreement, as the same may from time to time be
amended, modified, extended, renewed, replaced, restated or supplemented.
“Borrower” shall have the meaning set forth in the Preamble hereto.
“Certificated Security” shall have the meaning given such term in Section 8-102(a)(4)
of the UCC.
“Clearing Corporation” shall have the meaning given such term in Section 8-102(a)(5)
of the UCC.
“Collateral” shall have the meaning set forth in Section 3.1 hereof
“Collateral Accounts” shall mean, in relation to any Pledgor, any and all accounts
established and maintained by the Pledgee in the name of such Pledgor and to which any Collateral
may from time to time be credited.
“Credit Agreement” shall mean the Credit Agreement, dated as of March 9, 2006, among
the Parent Company, the Borrower, the several Persons from time to time party thereto as Lenders
thereunder, and the Administrative Agent, providing for the making of Credit Extensions to the
Borrower, as the same may be amended, supplemented or otherwise modified from time to time.
“Domestic Corporation” shall have the meaning set forth in the definition of the term
“Stock.”
“Financial Asset” shall have the meaning given such term in Section 8-102(a)(9) of the
UCC).
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“Foreign Corporation” shall have the meaning set forth in the definition of the term
“Stock.”
“Indemnitees” shall have the meaning set forth in Section 11 hereof.
“Instrument” shall have the meaning given such term in Section 9-102(a)(47) of the
UCC.
“Investment Property” shall have the meaning given such terms in Section 9-102(a)(49)
of the UCC.
“Limited Liability Company Assets” shall mean all Property, whether tangible or
intangible, and whether real, personal or mixed (including, without limitation, all limited
liability company capital and interests in any other limited liability company), at any time owned
or represented by any Limited Liability Company Interests.
“Limited Liability Company Interests” shall mean all of the limited liability company
membership interests at any time or from time to time owned or acquired by any Pledgor in any
limited liability company.
“Non-Voting Stock” shall mean all Equity Interests of a Foreign Corporation which is
not Voting Stock.
“Notes” shall mean, in relation to any Pledgor, all promissory notes or other similar
Instruments at any time issued to any Pledgor by the Parent Company or by any Subsidiary of the
Parent Company or of the Borrower.
“Obligations” shall have the meaning set forth in Section 1 hereof.
“Parent Company” shall have the meaning set forth in the Preamble hereto.
“Partnership Assets” shall mean all Property, whether tangible or intangible, and
whether real, personal or mixed (including, without limitation, all partnership capital and
interests in any other partnership), at any time owned or represented by any Partnership Interests.
“Partnership Interests” shall mean all of the general partnership interests and all of
the limited partnership interests at any time or from time to time owned or acquired by any Pledgor
in any general partnership or limited partnership.
“Pledged Notes” shall have the meaning set forth in Section 3.5 hereof.
“Pledgee” shall have the meaning set forth in the Preamble hereto.
“Pledgor” and “Pledgors” shall have the meanings set forth in the
Preamble hereto.
“Principal Companies” and “Principal Company” shall have the meaning set forth
in the Preamble hereto.
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“Proceeds” shall have the meaning given such term in Section 9-102(a)(64) of the UCC.
“Securities Account” shall have the meaning given such term in Section 8-501(a) of the
UCC.
“Securities Act” shall mean the Securities Act of 1933, as amended, as in effect from
time to time.
“Security” shall have the meaning given such term in Section 8-102(a)(15) of the UCC,
and shall in any event include all Stock and Notes (to the extent the same constitute “Securities”
under Section 8-102(a)(15)).
“Security Entitlement” shall have the meaning given such term in Section 8-102(a)(17)
of the UCC.
“Stock” shall mean (a) with respect to any corporation that is incorporated under the
laws of the United States or any State or territory thereof (each, a “Domestic
Corporation”), all of the issued and outstanding Equity Interests of any Domestic Corporation
at any time owned or acquired by any Pledgor, and (b) with respect to any corporation that is not a
Domestic Corporation (each a “Foreign Corporation”), all of the issued and outstanding
Equity Interests of any Foreign Corporation at any time owned or acquired by any Pledgor.
“Subsidiary Guarantor” shall have the meaning set forth in the Preamble
hereto.
“Termination Date” shall have the meaning set forth in Section 19(a) hereof.
“UCC” shall mean the Uniform Commercial Code as in effect in the State of New York
from time to time; provided that, if perfection or priority of any security interest in any
item or portion of Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in
effect, at such time, in such other jurisdiction for the purposes of the provisions hereof relating
to such perfection or priority and purposes of definitions relating to such provisions.
“Uncertificated Security” shall have the meaning given such term in Section
8-102(a)(18) of the UCC.
“Voting Stock” shall mean all classes of Equity Interests of any Foreign Corporation
entitled to vote.
3. PLEDGE AND GRANT OF SECURITY INTEREST; ETC.
3.1. Pledge. To secure the prompt payment and performance of all and each and every
part of the Obligations now or at any time hereafter owed or to be paid or performed by each or any of the Loan Parties, each Pledgor does hereby grant, pledge and assign to the
Pledgee for the benefit of the Secured Parties, and does hereby create a continuing security
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interest and Lien (subject to Liens from time to time permitted to exist with respect to any
Collateral pursuant to the Credit Agreement and the other Loan Documents from time to time in
effect) in favor of the Pledgee for the benefit of the Secured Parties in and upon, all of the
right, title and interest of such Pledgor in and to each of the following, whether now existing or
hereafter from time to time created, arising or acquired (collectively, the “Collateral”):
(a) each of the Collateral Accounts of such Pledgor, including any and all of the Property of
whatsoever type or kind from time to time deposited by such Pledgor in each such Collateral
Account, whether such Property is now owned or existing or is hereafter created or acquired,
including, without limitation, all Financial Assets, Investment Property, moneys, checks, drafts,
Instruments, Securities or interests therein of any type or nature deposited or required by the
Credit Agreement or by any of the other Loan Documents to be deposited in such Collateral Account,
and all Investments and all certificates and other Instruments (including depository receipts, if
any) from time to time representing or evidencing the same, and all dividends, interest,
distributions, cash and other Property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the foregoing;
(b) all Securities owned or acquired by such Pledgor from time to time;
(c) all Limited Liability Company Interests owned or acquired by such Pledgor from time to
time, and all of its right, title and interest in each limited liability company to which each of
such interests relates, whether now existing or hereafter created, arising or acquired, including,
without limitation:
(i) all of its capital therein and all of its interest in all profits, losses,
Limited Liability Company Assets and other distributions to which such Pledgor shall
at any time be entitled in respect of such Limited Liability Company Interests;
(ii) all other payments due or to become due to such Pledgor in respect of such
Limited Liability Company Interests, whether under any limited liability company
agreement, other Governing Documents or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority, options,
security interests, Liens and remedies, if any, under any limited liability company
agreement, operating agreement or other Governing Documents, or at law, or otherwise
in respect of any such Limited Liability Company Interests;
(iv) all present and future claims, if any, of such Pledgor against any such
limited liability company for moneys loaned or advanced, for services rendered or
otherwise;
(v) all of such Pledgor’s rights under any limited liability company agreement,
operating agreement or other Governing Documents, or at law, to exercise and enforce
every right, power, remedy, authority, option and privilege of such Pledgor relating to such Limited Liability Company Interests, including
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any power to terminate, cancel or modify any limited liability company agreement,
operating agreement or other Governing Documents, to execute any Instruments and to
take any and all other action on behalf of and in the name of such Pledgor in
respect of such Limited Liability Company Interests and any such limited liability
company, to make determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the foregoing or for any
Limited Liability Company Assets, to enforce or execute any checks or other
Instruments or orders, to file any claims and to take any action in connection with
any of the foregoing; and
(vi) all other Property from time to time hereafter delivered in substitution
for or in addition to any of the foregoing, all certificates and Instruments
representing or evidencing such other Property, and all cash, Securities, interest,
dividends, rights and other Property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
thereof;
(d) all Partnership Interests owned or acquired by such Pledgor from time to time, and all of
its right, title and interest in each partnership to which each of such interests relates, whether
now existing or hereafter created, arising or acquired, including, without limitation:
(i) all of its capital therein and all of its interest in all profits, losses,
Partnership Assets and other distributions to which such Pledgor shall at any time
be entitled in respect of such Partnership Interests;
(ii) all other payments due or to become due to such Pledgor in respect of such
Partnership Interests, whether under any partnership agreement, other Governing
Documents or otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority, options,
security interests, Liens and remedies, if any, under any partnership agreement,
operating agreement or other Governing Documents, or at law, or otherwise in respect
of any such Partnership Interests;
(iv) all present and future claims, if any, of such Pledgor against any such
partnership for moneys loaned or advanced, for services rendered or otherwise;
(v) all of such Pledgor’s rights under any partnership agreement, operating
agreement or other Governing Documents, or at law, to exercise and enforce every
right, power, remedy, authority, option and privilege of such Pledgor relating to
such Partnership Interests, including any power to terminate, cancel or modify any partnership agreement, operating agreement or other
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Governing Documents, to execute any Instruments and to take any and all other action
on behalf of and in the name of such Pledgor in respect of such Partnership
Interests and any such partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval, together with full power
and authority to demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Assets, to enforce or execute any checks, or other
Instruments or orders, to file any claims and to take any action in connection with
any of the foregoing; and
(vi) all other Property from time to time hereafter delivered in substitution
for or in addition to any of the foregoing, all certificates and Instruments
representing or evidencing such other Property, and all cash, Securities, interest,
dividends, rights and other Property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
thereof;
(e) all Security Entitlements owned or acquired by such Pledgor from time to time in any and
all of the foregoing;
(f) all Financial Assets and Investment Property owned or acquired by such Pledgor from time
to time; and
(g) all Proceeds of any and all of the foregoing;
provided, however, that (i) (A) no Pledgor shall be required at any time to pledge
hereunder more than 65% of the Voting Stock of any Foreign Corporation, unless a pledge of more
than 65% of the Voting Stock of such Foreign Corporation would not trigger any adverse tax
consequences to any of the Principal Companies or their Subsidiaries, and (B) each Pledgor shall in
any event be required to pledge hereunder 100% of the Non-Voting Stock of any Foreign Corporation
at any time or from time to time owned or acquired by such Pledgor; and (ii) “Collateral” shall not
include (A) Equity Interests or other interests held by the Parent Company in any of the Excluded
Subsidiaries, and (B) any Property in which a Pledgor is not permitted, by Applicable Law or by the
terms of any Instrument to which such Pledgor is a party or by which such Pledgor or any of its
Property is bound, to grant a security interest or Lien.
3.2. Procedures. (a) To the extent that any Pledgor at any time or from time to time
owns, acquires or obtains any right, title or interest in any Collateral, such Collateral shall
automatically (and without the taking of any action by such Pledgor) be pledged and be subject to
pledge pursuant to Section 3.1 of this Agreement, and, in addition thereto, such Pledgor
shall (to the extent provided below) take the following actions and undertake the following
procedures as set forth below (as promptly as practicable after it first establishes ownership of
or otherwise acquires or obtains any right, title or interest in such Collateral) for the benefit
of the Pledgee and the other Secured Parties:
(i) with respect to any Certificated Security (other than a Certificated
Security credited on the books of a Clearing Corporation), such Pledgor shall
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physically deliver such Certificated Security to the Pledgee, endorsed in blank
(with signature guaranteed);
(ii) with respect to any Uncertificated Security (other than an Uncertificated
Security credited on the books of a Clearing Corporation), such Pledgor shall, if
requested by the Administrative Agent, use reasonable efforts to cause the issuer of
such Uncertificated Security to duly authorize and execute, and deliver to the
Pledgee, an agreement for the benefit of the Pledgee and the other Secured Parties
in a form reasonably satisfactory to the Pledgee pursuant to which such issuer shall
agree to comply with any and all instructions originated by the Pledgee without
further consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership Interests and Limited
Liability Company Interests issued by such issuer) originated by any other Person;
provided that the Pledgee shall not so originate any instructions to any such issuer
unless an Event of Default has occurred and is continuing;
(iii) with respect to any Certificated Security, Uncertificated Security,
Partnership Interest or Limited Liability Company Interest credited on the books of
a Clearing Corporation (including a Federal Reserve Bank, Participants Trust Company
or The Depository Trust Company), such Pledgor shall promptly notify the Pledgee
thereof and shall promptly take all actions (A) required (1) to comply with the
applicable rules of such Clearing Corporation, and (2) to perfect the security
interests of the Pledgee under Applicable Law (including, in any event, under
Sections 9-312(a), 9-314(a), 9-106(a) and 8-106(d) of the UCC), and (B) as the
Pledgee reasonably deems necessary or desirable to effect the foregoing;
(iv) with respect to any Partnership Interests or any Limited Liability Company
Interests (other than any Partnership Interests or Limited Liability Interests
credited on the books of a Clearing Corporation), (A) if such Partnership Interests
or Limited Liability Company Interests are represented by a certificate, such
Pledgor shall complete the procedures set forth in Section 3.2(a)(i), and
(B) if such Partnership Interests or Limited Liability Company Interests are not
represented by a certificate, such Pledgor shall complete the procedures set forth
in Section 3.2(a)(ii);
(v) with respect to any Note, such Pledgor shall physically deliver such Note
to the Pledgee, endorsed in blank; and
(vi) upon written request of the Pledgee while any Event of Default shall be
continuing, with respect to cash, (A) such Pledgor shall establish with the Pledgee
a cash account in the name of such Pledgor over which the Pledgee shall have
exclusive and absolute control and dominion (and no withdrawals or transfers may be
made therefrom by any Person without the prior written consent of the Pledgee), and
(B) such Pledgor shall deposit such cash in such cash account.
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(b) In addition to the actions required to be taken pursuant to paragraph (a) of this
Section 3.2, each Pledgor shall take, or authorize the taking of, the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such Pledgor with respect to which the
Pledgee may obtain “control” thereof within the meaning of Section 8-106 of the UCC
(or under any provision of the UCC as same may be amended or supplemented from time
to time, or under the Applicable Laws of any relevant State), such Pledgor shall
take all actions as may be reasonably requested from time to time by the Pledgee so
that “control” of such Collateral is obtained and at all times held by the Pledgee;
and
(ii) such Pledgor irrevocably authorizes the Pledgee at any time and from time
to time to file in any filing office in any Uniform Commercial Code jurisdiction any
initial financing statements and amendments thereto, on forms covering all
Collateral hereunder (with the form of such financing statements to be reasonably
satisfactory to the Pledgee), to be filed in the relevant filing offices so that at
all times the Pledgee has a security interest and Lien in the Collateral which is
perfected by the filing of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the Applicable Laws of the
relevant States, including, without limitation, Section 9-312(a) of the UCC).
3.3. Subsequently Acquired Collateral. If any Pledgor shall obtain or otherwise
acquire (by purchase, merger, stock dividend, capital contribution or otherwise) any additional
Collateral at any time or from time to time after the date hereof, such Collateral shall
automatically (and without any further action being required to be taken) be subject to the pledge
and security interests created pursuant to Section 3.1, and, furthermore, such Pledgor will
promptly thereafter take (or cause to be taken) all action with respect to such Collateral in
accordance with the procedures set forth in Section 3.2, and with respect to any Equity
Interests any Pledgor shall obtain or otherwise acquire after the Closing Date, will promptly
thereafter deliver to the Pledgee (a) a certificate executed by a principal executive officer of
such Pledgor describing such Collateral and certifying that the same has been duly pledged in favor
of the Pledgee (for the benefit of the Secured Parties) hereunder, and (b) such supplements to
Annexes B and C hereto as are reasonably necessary to cause such Annexes to
be complete and accurate at such time.
3.4. Transfer Taxes. Each pledge of Collateral pursuant to Section 3.1,
Section 3.2 or Section 3.3 shall be accompanied by any applicable transfer tax
stamps required in connection with the pledge of such Collateral.
3.5. Definition of Pledged Notes. All Notes at any time pledged or required to be
pledged hereunder are hereinafter called the “Pledged Notes”.
3.6. Certain Representations and Warranties Regarding the Collateral. Each Pledgor
represents and warrants that, except as the Annexes hereto may be supplemented from time to time
pursuant to Section 3.3: (a) each Subsidiary of such Pledgor, and the direct
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ownership thereof, is identified in Annex B hereto; (b) the Equity Interests held by
such Pledgor consists of the number and type of Equity Interests of the corporations, limited
liability companies and other entities identified in Annex C hereto; (c) such Equity
Interests constitute that percentage of the issued and outstanding Equity Interests of the issuer
as is set forth in Annex C hereto; (d) such Pledgor does not hold any Notes; (e) except as
otherwise identified and described in Annex B and Annex C hereto, such Pledgor does
not hold any Limited Liability Company Interests; (f) such Pledgor does not hold any Partnership
Interests; (g) such Pledgor has complied with the applicable procedures set forth in Section
3.2(a) with respect to each item of Collateral described in Annexes B and C
hereto; and (h) such Pledgor owns no other Securities.
3.7. Security for Obligations; Supplement to Credit Agreement; etc.
(a) This Agreement (and the Pledged Collateral) secures the prompt payment in full and
performance when due of all and each of the Obligations of each of the Loan Parties (including the
Borrower), including all Obligations of the Borrower and the other Pledgors under the Credit
Agreement and the other Loan Documents.
(b) This Agreement, the pledges, security interests and Liens created hereby, and the
covenants and other agreements contained herein, are in addition and supplemental to the provisions
of the Credit Agreement, the Guaranty Agreement and the Security Agreement, and the rights, powers
and remedies given to the Pledgee hereby are cumulative and are in addition to all of the rights,
powers and remedies created by or existing under the Credit Agreement, the Guaranty Agreement and
the Security Agreement.
3.8. Security for Obligations; Supplement to Credit Agreement; etc.
The Pledgee may from time to time, at its option, perform any act which any Pledgor shall have
agreed hereunder or under any other Loan Document to perform and which such Pledgor shall fail to
perform within a reasonable time after being requested in writing to so perform (it being
understood that no such request need be given during the continuance of any Default or Event of
Default), and the Pledgee may from time to time take any other action which the Pledgee reasonably
deems necessary for the maintenance, preservation or protection of any of the Collateral or of the
security interests therein. The Pledgee will exercise reasonable care in the custody and
preservation of the Collateral in its possession.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS; ETC. The Pledgee shall have the right to
appoint one or more sub-agents for the purpose of retaining physical possession of the Collateral,
which may be held (in the discretion of the Pledgee) in the name of the relevant Pledgor, endorsed
or assigned in blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING; ETC., WHILE NO EVENT OF DEFAULT. Unless there shall be continuing any
Event of Default, each Pledgor shall be entitled to exercise any and all voting or other rights
attaching to any and all Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided, however, that no vote shall be cast or any consent,
waiver or ratification given or any action taken which would violate, result in breach of any
covenant contained in, or be inconsistent with, any of the terms of this Agreement, the Credit
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Agreement or any of the other Loan Documents, or which would have the effect of materially
impairing the value of the Collateral or any material part thereof or the position or interests of
the Pledgee or any other Secured Party therein. All such rights of a Pledgor to vote and to give
consents, waivers and ratifications with respect to all or any part of the Collateral owned by it
shall cease if (a) any Event of Default shall be continuing, and (b) the Pledgee shall notify such
Pledgor in writing of the Pledgee’s decision to exercise such rights with respect to all or (as the
case may be) such part of such Collateral.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless any Event of Default shall be
continuing, and except as otherwise provided by the Credit Agreement or by the following sentences
of this Section 6, all cash dividends, cash distributions, cash Proceeds and other cash
amounts payable in respect of any Collateral owned by any Pledgor shall be paid to (and may be
retained by) such Pledgor. To the extent contemplated and provided by Section 3.3 hereof,
the Pledgee shall be entitled to receive directly, and to retain as part of the Collateral:
(a) all other or additional Stock, Equity Interests, Notes, Limited Liability Company
Interests, Partnership Interests, Instruments or other Securities or Property (including, but not
limited to, cash, except as otherwise provided by the first sentence of this Section 6)
paid or distributed by way of dividend or otherwise in respect of the Collateral;
(b) all other or additional Stock, Equity Interests, Notes, Limited Liability Company
Interests, Partnership Interests, Instruments or other Securities or Property (including, but not
limited to, cash, except as otherwise provided by the first sentence of this Section 6)
paid or distributed in respect of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement;
(c) all other or additional Stock, Equity Interests, Notes, Limited Liability Company
Interests, Partnership Interests, Instruments or other Securities or Property (including, but not
limited to, cash, except as otherwise provided by the first sentence of this Section 6)
which may be paid in respect of the Collateral by reason of any consolidation, merger, exchange of
stock, conveyance of assets, liquidation or similar corporate or other reorganization; and
(d) if and as so requested by the Pledgee in writing during the continuation of any Event of
Default, all cash dividends, cash distributions, cash Proceeds and other cash amounts paid or
payable in respect of all or any part of the Collateral.
All rights of any Pledgor to receive and to retain any cash dividends, cash distributions, cash
Proceeds or other cash amounts paid or payable in respect of all or any part of the Collateral
owned by it shall cease if (i) any Event of Default shall be continuing, and (ii) the Pledgee shall
notify the Borrower or such Pledgor in writing of the Pledgee’s decision to receive all or (as the
case may be) any part of such cash dividends or other such cash amounts. Nothing contained in this
Section 6 shall limit or restrict in any way the Pledgee’s right to receive the Proceeds of
the Collateral in any form in accordance with Section 3 of this Agreement. All dividends,
distributions or other payments which are received by any Pledgor contrary to the provisions of the
Credit Agreement or any of the other Loan Documents or this Section 6 or Section 7
hereof shall be received in trust for the benefit of the Pledgee and the other Secured Parties,
shall be segregated from other Property or funds of such Pledgor, and shall be forthwith paid over
to the
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Pledgee as Collateral in the same form as so received (with any necessary endorsements).
7. REMEDIES IN CASE OF ANY EVENT OF DEFAULT. If any Event of Default shall be
continuing, the Pledgee shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement or by any of the other Loan Documents or by law) for the
protection and enforcement of its rights and remedies in respect of the Collateral, including,
without limitation, all of the rights and remedies of a secured party upon default under the UCC,
and the Pledgee shall be entitled, without limitation, to exercise any or all of the following
rights and remedies, which each Pledgor hereby irrevocably agrees to be commercially reasonable:
(a) to receive all amounts (including cash) payable or distributable in respect of the
Collateral;
(b) to transfer all or any part of the Collateral into the Pledgee’s name or into the name of
any of its nominees or into the name of any of its sub-agents;
(c) to accelerate any Pledged Note which may be accelerated in accordance with its terms, and
take any other lawful action to collect upon any Pledged Note (including, without limitation, to
make any demand for payment thereon);
(d) to vote all or any part of the Collateral (whether or not transferred into the name of the
Pledgee) and give all consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though the Pledgee were the outright owner thereof (each
Pledgor hereby irrevocably constituting and appointing the Pledgee the proxy and attorney-in-fact
of such Pledgor, with full power of substitution to do so);
(e) at any time or from time to time to sell, assign and deliver, or grant options to
purchase, all or any part of the Collateral, or any interest therein, at any public or private
sale, without demand of performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of which are hereby waived by
each Pledgor), for cash, on credit or for other Property, for immediate or future delivery without
any assumption of credit risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided, however, that at least ten (10) days’
prior written notice of the time and place of any such sale shall be given to such Pledgor. The
Pledgee shall not be obligated to make any such sale of Collateral regardless of whether any such
prior written notice of sale has theretofore been given. Each purchaser at any such sale shall hold
the Property so sold absolutely free from any claim or right on the part of each Pledgor, and each
Pledgor hereby irrevocably waives and releases to the fullest extent permitted by law any right or
equity of redemption with respect to the Collateral, whether before or after sale hereunder, all
rights, if any, to require marshalling of the Collateral or any other security for the Obligations
or otherwise, and all rights, if any, of stay and/or appraisal which such Pledgor now has or may at
any time in the future have under rule of law or statute now existing or hereafter enacted. At any
such sale, unless prohibited by Applicable Law, the Pledgee on behalf of all Secured Parties (or
certain of them) may bid for and purchase (by bidding in Obligations or otherwise) all or any part
of the Collateral so sold free from any such right or equity of redemption. Neither the Pledgee nor
any other Secured Party shall be liable for failure to collect
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or realize upon any or all of the
Collateral or for any delay in so doing nor shall any of them be under any obligation to take any
action whatsoever with regard thereto; and
(f) to set-off all or any part of the Collateral against all or any part of the Obligations,
and to withdraw any and all cash or other Collateral from any and all Collateral Accounts and to
apply such cash and other Collateral to the payment of any and all Obligations.
8. REMEDIES; ETC.; CUMULATIVE. (a) Each right, power and remedy of the Pledgee
provided for in this Agreement or in any of the other Loan Documents, or now or hereafter existing
at law or in equity or by statute, shall be cumulative and concurrent and shall be in addition to
each and every other such right, power or remedy. The exercise or beginning of the exercise by the
Pledgee or any other Secured Party of any one or more of the rights, powers or remedies provided
for in this Agreement or any of the other Loan Documents or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the
Pledgee or any other Secured Party of any or all such other rights, powers or remedies, and no
failure or delay on the part of the Pledgee or any other Secured Party to exercise any such right,
power or remedy shall operate as a waiver thereof. Unless otherwise required by the Loan Documents,
no notice to or demand on any Pledgor in any case shall entitle such Pledgor to any other or
further notice or demand in similar other circumstances or constitute a waiver of any of the rights
of the Pledgee or of any other Secured Party to take any other or further action in any
circumstances without demand or notice.
(b) Each of the Secured Parties agrees that this Agreement may be enforced only by the action
of the Pledgee, in each case, acting upon the instructions of the Required Lenders, and that no
other Secured Parties shall have any right individually to seek to enforce or to enforce this
Agreement or to realize upon any of the Collateral granted or to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the Administrative Agent
for the benefit of the Secured Parties upon the terms of this Agreement and the other Collateral
Documents. It is understood that the agreement of the Secured Parties contained in this
paragraph (b) is among, and solely for the benefit of, the Secured Parties and that, if the
Required Lenders so agree (without requiring the consent of any Pledgor), this Agreement may be
directly enforced by any Secured Party.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee upon any sale or
other disposition of all or any part of the Collateral pursuant to the terms of this Agreement,
together with all other moneys from time to time received by the Pledgee hereunder, shall be
applied in accordance with Section 8.3 of the Credit Agreement.
(b) All payments required to be made hereunder shall be made to the Administrative Agent under
the Credit Agreement for the account of the Secured Parties.
(c) For purposes of applying payments received in accordance with this Section 9, (i)
the Pledgee shall determine the outstanding unpaid Obligations owed to the Secured Parties under
the Credit Agreement and the other Loan Documents, and (ii) the Pledgee may rely on any Secured
Party to determine any other Obligations owed to such Secured Party.
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(d) It is understood and agreed that each Pledgor shall remain jointly and severally liable to
the extent of any deficiency remaining after the application of all of the proceeds of the
Collateral hereunder to the unpaid Obligations as provided by Section 9(a)hereof.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the Pledgee
hereunder (whether by virtue of the power of sale herein granted, pursuant to judicial process or
otherwise), the receipt of the Pledgee or the officer making such sale of the consideration paid or
delivered pursuant to such sale shall be a sufficient discharge to the purchaser or purchasers of
the Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the
application of all or any part of such consideration paid over or delivered to the Pledgee or such
officer or be answerable in any way for the misapplication or nonapplication thereof.
11. INDEMNITY. Without duplication of the indemnities provided under any other Loan
Document, each Pledgor jointly and severally irrevocably agrees (a) to indemnify and hold harmless
the Pledgee, each other Secured Party and their respective successors, assigns, employees, agents
and servants (individually, an “Indemnitee”, and, collectively, the “Indemnitees”)
on demand from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (b) to reimburse each
Indemnitee on demand for all reasonable costs and expenses actually incurred by such Indemnitee,
including Attorney Costs for the Administrative Agent or any of the Secured Parties, in each case
arising out of or resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Loan Document (but excluding any claims, demands,
losses, judgments and liabilities (including liabilities for penalties) or expenses of whatsoever
kind or nature to the extent incurred or arising by reason of gross negligence or willful
misconduct of such Indemnitee). In no event shall any Indemnitee hereunder be liable, in the
absence of gross negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for, preserve and protect, moneys or other
Property actually received by it in accordance with the terms hereof. If and to the extent that
the obligations of any Pledgor under this Section 11 are unenforceable for any reason, each
such Pledgor hereby agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under Applicable Law. The indemnity obligations of each Pledgor
contained in this Section 11 shall continue in full force and effect notwithstanding the
full payment of all of the Credit Extensions made under the Credit Agreement, the termination of
all Specified Swap Agreements, and the payment of all of the other Obligations, and notwithstanding
the discharge thereof.
12. FURTHER ASSURANCES; POWERS OF ATTORNEY. (a) Each Pledgor agrees that, upon
reasonable request of the Pledgee, such Pledgor will assist the Pledgee in executing, if reasonably
deemed necessary or appropriate by the Pledgee, and, at such Pledgor’s own cost and expense, filing
and refiling under the Uniform Commercial Code such financing statements, continuation statements
and other documents in such offices as the Pledgee (acting on its own or on the instructions of the
Required Lenders) may reasonably deem necessary or appropriate and wheresoever required or
permitted by law in order to perfect and preserve the Pledgee’s security interests in the
Collateral hereunder and hereby authorizes the
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Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of such Pledgor where
permitted by law, and agrees to do such further acts and things and to execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and Instruments as the Pledgee may
reasonably require or deem advisable to carry into effect the purposes of this Agreement or to
further assure and confirm unto the Pledgee its rights, powers and remedies hereunder or
thereunder.
(b) Each Pledgor hereby irrevocably appoints the Pledgee such Pledgor’s attorney-in-fact, with
full authority in the place and stead of such Pledgor and in the name of such Pledgor or otherwise,
from time to time during the continuance of an Event of Default, in the Pledgee’s discretion to
take any action and to execute any Instrument which the Pledgee may reasonably deem necessary or
advisable to accomplish the purposes of this Agreement.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee shall hold, in accordance with this
Agreement, all items of the Collateral at any time received by the Pledgee under this Agreement. It
is expressly understood and agreed that the obligations of the Pledgee as holder of the Collateral
and interests therein and with respect to the disposition thereof, and otherwise under this
Agreement, are only those expressly set forth in this Agreement. The Pledgee shall act hereunder on
the terms and conditions set forth herein and in Article 9 of the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise dispose of, grant any
option with respect to, or mortgage, pledge or otherwise encumber all or any part of the Collateral
or any interest therein (except, in each case, in accordance with or as otherwise permitted by the
terms of this Agreement, the Credit Agreement and the other Loan Documents).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a) Each Pledgor
represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good legal title
to, all Collateral consisting of one or more Securities and that it has sufficient
interest in all Collateral in which a security interest is purported to be created
hereunder for such security interest to attach (subject, in each case, to no Lien,
except the Liens created by this Agreement or otherwise permitted by the
terms of the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all of the
Collateral pledged or to be pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by such
Pledgor and constitutes a legal, valid and binding obligation of such Pledgor
enforceable against such Pledgor in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors’
rights and by equitable principles (regardless of whether enforcement is sought in
equity or at law) and principles of good faith and fair dealing;
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(iv) except to the extent already obtained or made, no consent of any other
Person (including, without limitation, any stockholder, member, partner or creditor
of such Pledgor or of any of its Subsidiaries), and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any Governmental Authority is required to be obtained by
such Pledgor in connection with (A) the execution, delivery or performance of this
Agreement, (B) the validity or enforceability of this Agreement, (C) the perfection
or enforceability of the Pledgee’s security interests in the Collateral, (D) except
for compliance with or as may be required by applicable federal and state securities
laws, the exercise by the Pledgee of any of its rights or remedies provided herein,
or (E) except for compliance with or as may required by any applicable partnership
agreement, limited liability company agreement or other Governing Document relating
to any partnership or limited liability company that is not a wholly-owned
Subsidiary of the Parent Company or of the Borrower, the exercise by the Pledgee of
any of its rights or remedies provided herein with respect to the Partnership
Interests or Limited Liability Company Interests relating to such partnership or
limited liability company;
(v) the execution, delivery and performance of this Agreement will not violate
any provision of any Applicable Law or of any order, judgment, writ, award or decree
of any court, arbitrator or other Governmental Authority applicable to such Pledgor,
or of the Governing Documents of such Pledgor or of any Securities issued by such
Pledgor or by any of its Subsidiaries, or of any material mortgage, deed of trust,
indenture, lease, loan agreement, credit agreement or other contract, agreement or
Instrument or undertaking to which such Pledgor or any of its Subsidiaries is a
party or which purports to be binding upon such Pledgor or any of its Subsidiaries
or upon any of their respective Property and will not result in the creation or
imposition of (or the obligation to create or impose) any Lien on any of the
Property of such Pledgor or of any of its Subsidiaries (other than the Liens created
by the Loan Documents), except in such instances in which (A) such requirement of
Applicable Law, order, judgment, writ, award or decree is being contested in good
faith by appropriate proceedings diligently conducted or (B) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect;
(vi) all of the Collateral (consisting of Securities, Limited Liability Company
Interests or Partnership Interests) has been duly issued under and authorized by the
applicable Governing Documents and is not subject to capital call by such Pledgor
except as provided in the applicable Governing Documents; provided,
however, that Collateral consisting of Limited Liability Company Interests
or Partnership Interests may require further payments and/or assessments in respect
thereof in accordance with the partnership agreements, limited liability company
agreements or other Governing Documents relating thereto or Applicable Law;
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(vii) to the Pledgors’ knowledge, each of the Pledged Notes constitutes, or
when executed by the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors’ rights and by equitable principles (regardless of whether enforcement is
sought in equity or at law) and principles of good faith and fair dealing;
(viii) the pledge, collateral assignment and delivery to the Pledgee of the
Collateral consisting of Certificated Securities (together with Instruments of
transfer therefor) pursuant to this Agreement creates a valid and perfected
first-priority security interest in such Securities, and the Proceeds thereof,
subject to no prior Liens or to any agreement purporting to grant to any third party
any Lien on the Property of such Pledgor which would include such Securities (in
each case, other than Liens permitted under the Credit Agreement), and the Pledgee
is entitled to all of the rights, priorities and benefits afforded by the UCC or
other Applicable Law as enacted in any applicable jurisdiction to perfected security
interests in respect of such Collateral; and
(ix) Upon delivery of the security certificates representing such Certified
Securities to the Pledgee, effectively endorsed to the Pledgee in blank, “control”
(as defined in Section 8-106 of the UCC) has been obtained by the Pledgee over all
Collateral consisting of Securities (including Notes which are Securities) with
respect to which such “control” may be obtained pursuant to Section 8-106 of the
UCC; provided, however, that, in the case of the Pledgee obtaining
“control” over Collateral consisting of a Security Entitlement, such Pledgor shall
have taken all steps in its control so that the Pledgee obtains “control” over such
Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the Pledgee’s right, title and
security interest in and to the Securities and the Proceeds thereof against the claims and demands
of all Persons whomsoever (other than Liens permitted under the Credit Agreement); and each Pledgor
covenants and agrees that it will have like title to and right to pledge any other Property at any
time hereafter pledged to the Pledgee as Collateral hereunder and will likewise defend the right
thereto and security interests therein of the Pledgee and the other Secured Parties.
16. LEGAL STATUS. With respect to any proposed change to the legal name, type of
organization, jurisdiction of organization and organizational identification number, if any, of
each Pledgor, each Pledgor shall prior to effecting such change take all action, satisfactory to
the Pledgee, to maintain the security interests of the Pledgee in the Collateral required to be
granted hereby at all times fully perfected and in full force and effect.
17. PLEDGORS’ OBLIGATIONS ABSOLUTE; ETC. (a) The Obligations of each Pledgor under
this Agreement shall be absolute, unconditional and irrevocable and shall remain in full force and
effect without regard to, and shall not be released,
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suspended, discharged, terminated or otherwise
impaired or affected by, any circumstance or occurrence whatsoever (other than termination of this
Agreement pursuant to Section 19 hereof or as otherwise provided in the Loan Documents),
including, without limitation:
(i) the dissolution, termination of existence, winding up, bankruptcy,
liquidation, insolvency, appointment of a receiver for all or any part of the
Property of, assignment for the benefit of creditors by, or the commencement of any
Insolvency Proceeding by or against, any of the other Pledgors or any of the
Subsidiaries of any of the Pledgors;
(ii) the absorption, merger or consolidation of, or the effectuation of any
other change whatsoever in the name, ownership, membership, constitution or place of
organization or formation of, any of the Pledgors or any of their Subsidiaries;
(iii) any extension or postponement of the time for the payment of any of the
Obligations of any of the Pledgors, the acceptance of any partial payment thereon,
any and all other indulgences whatsoever by any of the Secured Parties in respect of
any of the Obligations of any of the Pledgors, the taking, addition, substitution or
release, in whole or in part, at any time or times, of any collateral or Liens
securing any of the Obligations of any of the Pledgors, or the addition,
substitution or release, in whole or in part, of any Person or Persons (including
any of the Pledgors or Subsidiary Guarantors) primarily or secondarily liable in
respect of any of the Obligations of any of the Pledgors;
(iv) any action or delay in acting or failure to act on the part of any Secured
Party under any of the Loan Documents or in respect of any Obligations of any of the
Pledgors or any collateral or Liens securing any Obligations of any of the Pledgors
or otherwise, including (A) any action by any Secured Party to enforce any of its
rights, remedies or claims in respect of any collateral or Liens securing any
Obligations of any of the Pledgors, (B) any failure by any Secured Party strictly or
diligently to assert any rights or to pursue any remedies or claims against any of
the Pledgors or any other Person or Persons under any of the Loan Documents or
provided by statute or at law or in equity, (C) any failure by the Pledgee or by any
other Secured Party to perfect or to preserve the perfection or priority of any of
its Liens securing any of the Obligations of any of the Pledgors, or (D) any failure
or refusal by the Pledgee or by any other Secured Party to foreclose or to realize
upon any collateral or Liens securing any of the Obligations of any of the Pledgors,
or to take any action to enforce any of its rights, remedies or claims under any of
the Loan Documents;
(v) any modification or amendment of, or any supplement or addition to, any of
the Loan Documents;
(vi) any waiver, consent or other action or acquiescence by the Pledgee or by
any other Secured Party in respect of any default by any of the Pledgors in
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its performance or observance of or compliance with any term, covenant or condition
contained in any of the Loan Documents;
(vii) the existence or creation at any time or times on or after the date of
this Agreement of any claim, defense, right of set-off or counterclaim of any nature
whatsoever of any Pledgor against any of the other Pledgors or Loan Parties or
against any of the Secured Parties;
(viii) any incapacity or lack of authority of any Pledgor;
(ix) any of the Obligations of any of the Pledgors or any of the Loan Documents
or any provision of any thereof or any of the Liens securing any of the Obligations
of any of the Pledgors shall at any time and for any reason whatsoever cease to be
in full force or effect with respect to any one or more of the Pledgors or shall be
declared null and void or illegal, invalid, unenforceable or inadmissible in
evidence in relation to any one or more of the Pledgors, or any of the Obligations
of any one or more of the Pledgors or any Liens securing any of the Obligations of
any one or more of the Pledgors shall be subject to avoidance, or shall be avoided,
as a fraudulent transfer or fraudulent conveyance, whether prior to or after the
commencement of any Insolvency Proceedings; or
(x) the existence of any other condition or circumstance or the occurrence of
any other event or condition that might otherwise constitute a legal or equitable
discharge of or a suretyship defense to performance by any Pledgor of any of its
Obligations to any of the Secured Parties.
(b) Each Pledgor hereby absolutely, unconditionally and irrevocably waives, to the extent
permitted under Applicable Law, all suretyship and other similar defenses to performance by such
Pledgor of any of its Obligations to the Pledgee or to any of the other Secured Parties.
(c) This Agreement shall be effective as to and shall be enforceable by the Pledgee against
each Pledgor from and after the execution and delivery by such Pledgor of a counterpart of this
Agreement. The agreements and obligations of each Pledgor under this agreement are separate and
independent from and in addition to the agreements and Obligations of each other Pledgor under the
Guaranty Agreement and the other Collateral Documents and shall be enforceable by the Pledgee
against each Pledgor notwithstanding (i) the failure of any other Pledgor party thereto to execute
and deliver a counterpart of this Agreement or the Guaranty Agreement, (ii) the invalidity,
unenforceability or inadmissibility in evidence of this Agreement or the Guaranty Agreement against
any other Pledgor party thereto, (iii) the release by the Pledgee of all or any of the other
Pledgors from all or any part of their Obligations under this Agreement or the Guaranty Agreement,
or the release by the Pledgee of all or any part of the Collateral granted by all or any of the
other Pledgors to the Pledgee under this Agreement or any of the other Collateral Documents, or
(iv) any waiver by the Pledgee of, or any consent by the Pledgee to any departure from, any of the
agreements or Obligations of any other Pledgor under this Agreement or the Guaranty Agreement on
any occasion or occasions, or any failure by the Pledgee to enforce any of the agreements or
Obligations of any other Pledgor under this
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Agreement, any of the other Collateral Documents or the
Guaranty Agreement on any occasion or occasions.
(d) Each of the Pledgors hereby absolutely, unconditionally and irrevocably assents to and
waives notice of, and waives any defenses that it may otherwise have as a result of, any and all
circumstances, occurrences and other matters specified in clauses (i) through (x)
of paragraph (a) of this Section 17.
18. SALE OF COLLATERAL WITHOUT REGISTRATION. If at any time when the Pledgee shall
determine to exercise its right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests pursuant to Section 7, and
such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the Pledgee may, in its sole and
absolute discretion, sell such Collateral or part thereof by private sale in such manner and under
such circumstances as the Pledgee may deem reasonably necessary or advisable in order that such
sale may legally be effected without such registration. Without limiting the generality of the
foregoing, in any such event the Pledgee, in its sole and absolute discretion: (a) may proceed to
make such private sale notwithstanding that a registration statement for the purpose of registering
such Collateral or part thereof shall have been filed under such Securities Act; (b) may approach
and negotiate with a single possible purchaser to effect such sale; and (c) may restrict such sale
to a purchaser who will represent and agree that such purchaser is purchasing for its own account,
for investment, and not with a view to the distribution or sale of such Collateral or part thereof.
In the event of any such sale, the Pledgee shall incur no responsibility or liability for selling
all or any part of the Collateral at a price which the Pledgee, in its sole and absolute
discretion, may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the sale were deferred until the
registration as aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as defined below), this
Agreement and the pledge and security interest granted hereunder, shall terminate and all rights to
the Collateral shall revert to the applicable Pledgor (provided that all indemnities set forth
herein including, without limitation, in Section 11 hereof shall survive any such
termination), and the Pledgee, at the request and expense of any Pledgor, will execute and deliver
to such Pledgor a proper Instrument or Instruments acknowledging the satisfaction and termination
of this Agreement (including, without limitation, UCC termination statements and Instruments of
satisfaction, discharge and/or reconveyance), and will duly assign, transfer and deliver to such
Pledgor (without recourse, and without any representation or warranty) such of the Collateral as
may be in the possession of the Pledgee and as has not theretofore been sold or otherwise applied
or released pursuant to this Agreement, together with any moneys at the time held by the Pledgee or
any of its nominees or sub-agents hereunder, and, with respect to any Collateral consisting of an
Uncertificated Security (other than an Uncertificated Security credited on the books of a Clearing
Corporation), a Partnership Interest or a Limited Liability Company Interest, a termination of the
agreement relating thereto executed and delivered by the issuer of such Uncertificated Security
pursuant to Section 3.2(a)(ii) or by the respective partnership or limited liability
company pursuant to Section 3.2(a)(iv). As used in this Agreement, the term
“Termination Date” shall mean the date upon which all of the Commitments shall have
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terminated in full, no Loans or Notes under the Credit Agreement shall be outstanding, and all
Obligations (other than Obligations pursuant to the Specified Swap Agreements) shall have been paid
in full and in cash.
(b) In the event that any part of the Collateral is Disposed of in connection with a
Disposition permitted by Section 7.5 of the Credit Agreement or otherwise released at the
direction of the Required Lenders (or all Lenders if required by Section 10.1 of
the Credit Agreement), and the proceeds of such Disposition or Dispositions or from such release
are applied in accordance with the terms of the Credit Agreement, to the extent required to be so
applied, such Collateral will be Disposed of free and clear of the Liens created by this Agreement,
and the Administrative Agent, at the request and expense of the respective Pledgor, will execute
and deliver to such Pledgor a proper Instrument or Instruments (including Uniform Commercial Code
termination statements) to evidence the release of such Collateral and will duly assign, transfer
and deliver to such Pledgor (without recourse, and without any representation or warranty) such of
the Collateral as is then being (or has been) so Disposed of or released and as may be in the
possession of the Administrative Agent and has not theretofore been released pursuant to this
Agreement..
20. NOTICES; ETC. All notices and other communications hereunder shall be in writing
and shall be delivered or mailed by first-class mail, postage prepaid, addressed:
(a) if to any Pledgor or the Administrative Agent, at such person’s address set forth
underneath its signature below; and
(b) if to any Secured Party (other than the Administrative Agent), at such address as such
Secured Party shall have specified in the Credit Agreement;
or at such other address as shall have been furnished in writing by any Person described above to
the party required to give notice hereunder.
21. THE PLEDGEE. The Pledgee will hold, directly or indirectly in accordance with
this Agreement, all items of the Collateral at any time received by it under this Agreement. It is
expressly understood and agreed that the obligations of the Pledgee with respect to the Collateral,
interests therein and the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in the UCC and in this Agreement.
22. WAIVER; AMENDMENT. Except as contemplated in Section 25 hereof, none of
the terms or conditions of this Agreement may be changed, waived, discharged or terminated in any
manner whatsoever unless such change, waiver, discharge or termination is in writing duly signed by
each Pledgor directly and adversely affected thereby and by the Pledgee (with the consent of (a)
the Required Lenders, or (b) to the extent required by Section 10.1 of the Credit
Agreement, all of the Lenders).
23. MISCELLANEOUS. This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect, subject to release and/or termination as
set forth hereunder, (b) be binding upon each Pledgor, its successors and assigns;
provided, however, that no Pledgor shall assign any of its rights or obligations
hereunder without
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the prior written consent of the Pledgee (with the prior written
consent of the Required Lenders, or to the extent required by Section 10.1 of the Credit
Agreement, all of the Lenders), and (c) inure, together with the rights and remedies of the Pledgee
hereunder, to the benefit of the Pledgee, the other Secured Parties and their respective
successors, transferees and assigns. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. The headings of the several sections and subsections in this Agreement are
for purposes of reference only and shall not limit or define the meaning hereof. This Agreement may
be executed in any number of counterparts, each of which shall be an original, but all of which
together shall constitute but one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the
other provisions of this Agreement which shall remain binding on all of the parties hereto.
24. WAIVER OF JURY TRIAL; ETC. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO AGREES TO BE BOUND
BY THE PROVISIONS SET FORTH IN SECTION 10.14 AND SECTION 10.15 OF THE CREDIT
AGREEMENT WITH THE SAME FULL FORCE AND EFFECT AS IF SET FORTH IN FULL HEREIN AND MADE EXPRESSLY
APPLICABLE TO EACH PARTY HERETO.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any Subsidiary of the
Parent Company or of the Borrower that is required to become a party to and bound by this Agreement
pursuant to the Credit Agreement or any of the other Loan Documents shall automatically (without
any action on the part of any party hereto) become a Pledgor hereunder by executing a counterpart
hereof, or (alternatively) by executing a supplement to this Agreement or a joinder agreement, (in
each case) in form and substance reasonably satisfactory to the Pledgee, and (in each case) by
delivering the same to the Pledgee.
26. FULL RECOURSE. This Agreement is made with full recourse to each of the Pledgors
and pursuant to and upon all of the representations, warranties, covenants and agreements on the
part of each of the Pledgors contained herein and in the other Loan Documents and otherwise in
writing in connection herewith or therewith.
27. OBLIGATIONS OF PLEDGORS.
(a) It is the desire and intent of each of the Pledgors and the Secured Parties that this
Agreement shall be enforced against each Pledgor to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement is sought.
(b) Notwithstanding anything else to the contrary in this Pledge Agreement, each of the
Secured Parties agrees that this Agreement may be enforced only by the action of the Pledgee, in
each case, acting upon the instructions of the Required Lenders, and that no other Secured Parties
shall have any right individually to seek to enforce or to enforce this Agreement
or to realize upon any of the Collateral or other security granted or to be granted by any of
the
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Collateral Documents, it being understood and agreed that such rights and remedies may be
exercised by the Pledgee for the benefit of the Secured Parties upon the terms of this Agreement
and the Collateral Documents. It is understood that the agreement of the Secured Parties contained
in this Section 27 is among and solely for the benefit of the Secured Parties and that, if
the Required Lenders so agree (without requiring the consent of any Pledgor), this Pledge Agreement
may be directly enforced by any Pledgee.
28. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a) Nothing herein
shall be construed to make the Pledgee or any other Secured Party liable as a member of any limited
liability company or partnership, and neither the Pledgee nor any other Secured Party by virtue of
this Agreement or otherwise (except as referred to in the following sentence) shall have any of the
duties, obligations or liabilities of a member of any limited liability company or partnership. The
parties hereto expressly agree that, unless the Pledgee shall become the absolute owner pursuant
hereto of Collateral consisting of Limited Liability Company Interests or Partnership Interests,
this Agreement shall not be construed as creating a partnership or joint venture among the Pledgee,
any other Secured Party and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of this Section
28, the Pledgee, by becoming a party to this Agreement, did not intend to become a member of
any limited liability company or partnership or otherwise intend to be a co-venturer with respect
to any Pledgor or any limited liability company or partnership either before or after an Event of
Default shall have occurred. The Pledgee shall have only those powers set forth herein, and the
Secured Parties shall assume none of the duties, obligations or liabilities of a member of any
limited liability company or partnership or any Pledgor, except as and to the extent
provided in the last sentence of paragraph (a) of this Section 28.
(c) The Pledgee and the other Secured Parties shall not be obligated to perform or discharge
any obligation of any Pledgor as a result of any of the pledges hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the rights, powers, privileges
and authority so created, shall not at any time or in any event obligate the Pledgee or any other
Secured Party to appear in or defend any action or proceeding relating to the Collateral, or to
take any action hereunder or thereunder, or to expend any money or incur any expenses or perform or
discharge any obligation, duty or liability under the Collateral.
29. EFFECTIVENESS. This Agreement shall become effective on and as of the date hereof
when the Pledgee, the Parent Company and the Borrower shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered (including by way of
facsimile transmission) the same to the Pledgee.
30. DELIVERY BY FACSIMILE. Delivery of the signature pages to this Agreement by
facsimile shall be as effective as delivery of manually executed counterparts of this Agreement.
***Signature Pages to Pledge Agreement follow***
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IN WITNESS WHEREOF, the parties hereto have caused this PLEDGE AGREEMENT to be duly executed
and delivered as of the date first above written.
| The Borrower: W LAB ACQUISITION CORP., as the Borrower and a Pledgor |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | CEO | |||
| The Parent Company: NEXTERA ENTERPRISES, INC., as the Parent Company and a Pledgor |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | President & CFO | |||
| Address of Pledgors: | ||||
| c/o Nextera Enterprises, Inc. | ||||
| One Exeter Plaza | ||||
| 000 Xxxxxxxx Xxxxxx | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: Xxxxxxx Xxxxxxxxx | ||||
| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 |
**Signature Page to Pledge Agreement**
***Signature Page to Pledge Agreement follows***
-00-
| Xxx Xxxxxxx: NEWSTAR FINANCIAL, INC. as Pledgee |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
| Address of Pledgee: | ||||
| NewStar Financial, Inc. | ||||
| 000 Xxxxxxxx Xxxxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
| Attention: Xxxx X. Xxxxxx | ||||
| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 |
**Signature Page to Pledge Agreement**
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PLEDGE AGREEMENT SCHEDULES
| Annex A | List of Pledgors |
| Annex B | Ownership of Subsidiaries |
| Annex C | List of Equity Interests and Other Securities |
ANNEX A
LIST OF PLEDGORS
PRINCIPAL COMPANIES
| W Lab Acquisition Corp. | Delaware corporation | |||||||
| Nextera Enterprises, Inc. | Delaware corporation |
LIST OF SUBSIDIARY GUARANTORS
| Organizational | ||||
| Jurisdiction | Identification | |||
| Name of Subsidiary Guarantor | and Type | Number | ||
None. |
||||
ANNEX B
OWNERSHIP OF SUBSIDIARIES
| Name of Subsidiary | Direct Owner | |
W LAB ACQUISITION CORP.
|
NEXTERA ENTERPRISES, INC. | |
ANNEX C
LIST OF EQUITY INTERESTS AND OTHER SECURITIES
I. BORROWER.
| Types of | Number of | Certificate Number | ||||||
| Name of Issuer | Shares or Units | Shares or Units | and % Ownership | Name of Owner | ||||
W Lab Acquisition Corp. |
common stock | 1,000 | Certificate No. 1, 100% | Nextera Enterprises, Inc. |
II. SUBSIDIARY GUARANTORS.
| Types of | Number of | Certificate | ||||||
| Name of Issuer | Shares or Units | Shares or Units | Number | Name of Owner | ||||
| None. | ||||||||
