EXHIBIT 10.17
EXHIBIT XI
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified or supplemented from time
to time, this "Agreement"), dated as of July 29, 2002, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 30 hereof, the "Pledgors") to
JPMorgan Chase Bank, as Collateral Agent (together with any successor Collateral
Agent, the "Pledgee"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, capitalized terms used herein and
defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, Domino's, Inc., a Delaware corporation ("Domino's" or
"Company"), Domino's Franchise Holding Co. (f/k/a Bluefence, Inc.), a Michigan
corporation ("Subsidiary Borrower" and, together with Company, each "Borrower"
and, collectively, "Borrowers"), TISM, Inc., a Michigan corporation, the Lenders
from time to time party thereto, X.X. Xxxxxx Securities Inc., as Arranger,
JPMorgan Chase Bank, as Administrative Agent for Lenders (in such capacity and
together with any successor Administrative Agent, "Administrative Agent"), Bank
One, NA, as Syndication Agent and Comerica Bank, as Documentation Agent, have
entered into a Credit Agreement, dated as of July 29, 2002 (as amended, modified
or supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to the Borrowers, and the issuance of Letters of Credit for the
joint and several account of the Borrowers, in each case as contemplated therein
(the Lenders, the Administrative Agent, the Documentation Agent, the Syndication
Agent, the Issuing Lenders and the Pledgee are herein called the "Lender
Creditors");
WHEREAS, the Borrowers or any Subsidiary thereof may at any time
and from time to time enter into or maintain one or more Interest Rate
Agreements and Currency Agreements (collectively, together with the Existing
Swap Agreement, the "Secured Hedging Agreements") with one or more Lenders or
any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with such Lender's or affiliate's successors and assigns, are
herein called the "Other Creditors," and, together with the Lender Creditors,
are herein called the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Pledgor that
is a party thereto has guaranteed to the Secured Creditors the payment when due
of all Obligations as described in such Subsidiaries Guaranty;
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
unconditionally guaranteed to the Guaranteed Creditors the payment when due of
all Guaranteed Obligations as described therein;
WHEREAS, it is a condition precedent to the making of Loans and
the issuance of Letters of Credit under the Credit Agreement that each Pledgor
shall have executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of
Loans by, and the issuance of, and participation in, Letters of Credit under the
Credit Agreement and the entering into and maintaining of Secured Hedging
Agreements and, accordingly, each Pledgor desires to enter into this Agreement
in order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, principal,
premium, interest (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Pledgor or any Subsidiary thereof at the rate
provided for in the respective documentation, whether or not a claim
for post-petition interest is allowed in any such proceeding),
reimbursement obligations under Letters of Credit, fees, costs and
indemnities) of such Pledgor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with, the Credit Agreement and the other Loan Documents to which such
Pledgor is a party (including, in the case of each Pledgor that is a
Guarantor, all such obligations, liabilities and indebtedness of such
Pledgor under the Subsidiaries Guaranty to which it is a party) and the
due performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Loan Documents (all such obligations, liabilities and
indebtedness under this clause (i), except to the extent consisting of
obligations, liabilities or indebtedness with respect to Secured
Hedging Agreements entitled to the benefits of this Agreement, being
herein collectively called the "Loan Document Obligations");
(ii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of any Pledgor at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding), owing by such Pledgor to
the Other Creditors under, or with respect to (including, in the case
of each Pledgor that is a Guarantor, all such obligations, liabilities
and indebtedness of such Pledgor under the Subsidiaries Guaranty), any
Secured Hedging Agreement entitled to
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the benefits of this Agreement, whether such Secured Hedging Agreement
is now in existence or hereafter arising, and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained therein (all such obligations, liabilities and
indebtedness described in this clause (ii) being herein collectively
called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i) and (ii) above, after an Event of
Default (which term as used herein shall mean any Event of Default
under, and as defined in, the Credit Agreement or any payment default
upon the expiration of any applicable grace period by the Borrowers
under any Secured Hedging Agreements) shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Pledgee of its rights hereunder,
together with reasonable attorneys' fees and court costs;
(v) all amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement under Section 11 of this
Agreement; and
(vi) all amounts owing to any Agent or any of its affiliates
pursuant to any of the Loan Documents in its capacity as such;
all such indebtedness, obligations, liabilities, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this 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:
"Administrative Agent" has the meaning set forth in the Recitals
hereto.
"Adverse Claim" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Borrower" shall have the meaning provided in the Recitals
hereto.
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"Certificated Security" has the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 22 hereof.
"Clearing Corporation" has the meaning given such term in Section
8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Credit Agreement" has the meaning set forth in the Recitals
hereto.
"Domestic Corporation" has the meaning set forth in the
definition of "Stock".
"Event of Default" has the meaning set forth in Section 1 hereof.
"Excluded Foreign Entity" means any corporation, partnership
(general or limited), limited liability company or other business entity (x)
that is organized under the laws of any country, state or province other than
the United States, Canada, Bermuda or any state, province or territory thereof
and (y) the book value of the gross assets of which do not exceed $1,000,000.
"Financial Asset" has the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the definition
of "Stock".
"Indemnitees" has the meaning set forth in Section 11 hereof.
"Instrument" has the meaning given such term in Section
9-102(a)(47) of the UCC.
"Investment Property" has the meaning given such term in Section
9-102(a)(49) of the UCC.
"Lender Creditors" has the meaning set forth in the Recitals
hereto.
"Lenders" has the meaning set forth in the Recitals hereto.
"Limited Liability Company Assets" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company (other
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than an Excluded Foreign Entity); provided that the term "Limited Liability
Company Interest" shall not include any limited liability company membership
interest in any limited liability company that is not a Subsidiary of any
Pledgor to the extent (and only for so long as) the limited liability company
agreement or operating agreement for such limited liability company or
applicable law prohibits the assignment of, or granting of a security interest
in, the limited liability company membership interests of such limited liability
company and such prohibitions are not rendered invalid by Section 9-406 or
Section 9-408 of the UCC, it being understood and agreed, however, any such
excluded limited liability company membership interest shall otherwise be
subject to the security interests created by this Agreement (and shall become a
"Limited Liability Company Interest" for all purposes of this Agreement) upon
the receipt by the respective Pledgor of any necessary approvals or waivers
permitting the assignment thereof or the granting of a security interest
therein.
"Loan Document Obligations" has the meaning set forth in Section
1 hereof.
"Location" of any Pledgor has the meaning given such term in
Section 9-307 of the UCC.
"Non-Voting Stock" means all capital stock of any Foreign
Subsidiary which is not Voting Stock.
"Notes" means (x) all intercompany notes at any time issued to
each Pledgor and (y) all other promissory notes from time to time issued to, or
held by, each Pledgor.
"Obligations" has the meaning set forth in Section 1 hereof.
"Other Creditors" has the meaning set forth in the Recitals
hereto.
"Other Obligations" has the meaning set forth in Section 1
hereof.
"Partnership Assets" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership (other than Excluded Foreign
Entities); provided that the term "Partnership Interest" shall not include any
partnership interest (general or limited) in any partnership that is not a
Subsidiary of any Pledgor to the extent (and only for so long as) the
partnership agreement for such partnership or applicable law prohibits the
assignment of, or granting of a security interest in, the partnership interests
of such partnership and such prohibitions are not rendered invalid by Section
9-406 or Section 9-408 of the UCC, it being understood and agreed, however, any
such excluded partnership interest shall otherwise be subject to the security
interests created by this Agreement (and shall become a "Partnership Interest"
for all purposes of this Agreement) upon the receipt by the respective Pledgor
of any necessary approvals or waivers permitting the assignment thereof or the
granting of a security interest therein.
"Pledged Notes" has the meaning set forth in Section 3.5 hereof.
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"Pledgee" has the meaning set forth in the first paragraph
hereof.
"Pledgor" has the meaning set forth in the first paragraph
hereof.
"Proceeds" has the meaning given such term in Section
9-102(a)(64) of the UCC.
"Registered Organization" has the meaning given such term in
Section 9-102(a)(70) of the UCC.
"Requisite Creditors" has the meaning set forth in Section 22
hereof.
"Requisite Lenders" has the meaning given such term in the Credit
Agreement.
"Secured Creditors" has the meaning set forth in the Recitals
hereto.
"Secured Debt Agreements" has the meaning set forth in Section 5
hereof.
"Secured Hedging Agreement" shall have the meaning provided in
the recitals of this Agreement.
"Securities Account" has the meaning given such term in Section
8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as
in effect from time to time.
"Security" and "Securities" has the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock
and all Notes but excludes Securities issued by Excluded Foreign Entities and
the Excluded Non-Profit Subsidiary.
"Security Entitlement" has the meaning given such term in Section
8-102(a)(17) of the UCC.
"Specified Collateral Event" has the meaning provided in the
Security Agreement.
"Stock" means (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof or the District
of Columbia (other than the Excluded Non-Profit Subsidiary) (each a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
corporation at any time owned by any Pledgor of any Domestic Corporation and (y)
with respect to corporations not Domestic Corporations or Excluded Foreign
Entities (each a "Foreign Corporation"), all of the issued and outstanding
shares of capital stock at any time owned by any Pledgor of any such Foreign
Corporation.
"Termination Date" has the meaning set forth in Section 20
hereof.
"Transmitting Utility" has the meaning given such term in Section
9-102(a)(80) of the UCC.
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"UCC" means the Uniform Commercial Code as in effect in the State
of New York from time to time; provided that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any Foreign
Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed
or to be performed by such Pledgor, each Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing security interest (subject to those Liens permitted to exist
with respect to the Collateral pursuant to the terms of all Secured Debt
Agreements then in effect) in favor of the Pledgee for the benefit of the
Secured Creditors in, all of the right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security Agreement),
including any and all assets of whatever type or kind deposited by such
Pledgor in any such Collateral Account, whether now owned or hereafter
acquired, existing or arising, including, without limitation, all
Financial Assets, Investment Property, monies, checks, drafts,
Instruments, Securities or interests therein of any type or nature
deposited or required by the Credit Agreement or any other Secured Debt
Agreement 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 of such Pledgor from time to time and all
options and warrants owned by such Pledgor from time to time to
purchase Securities;
(c) all Limited Liability Company Interests of such Pledgor
from time to time and all of its right, title and interest in each
limited liability company to which each such interest relates, whether
now existing or hereafter acquired, including, without limitation:
(A) all the capital thereof and 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;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;
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(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any limited liability company agreement or operating
agreement, or at law or otherwise in respect of such Limited
Liability Company Interests;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for monies
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement 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 any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take any
and all other action on behalf of and in the name of any 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 Asset, 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
(F) all other property 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 of such Pledgor from time to
time and all of its right, title and interest in each partnership to
which each such interest relates, whether now existing or hereafter
acquired, including, without limitation:
(A) all the capital thereof and 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;
(B) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under any
partnership agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any partnership agreement or operating agreement, or
at law or otherwise in respect of such Partnership Interests;
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(D) all present and future claims, if any, of such
Pledgor against any such partnership for monies loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership
agreement or operating agreement 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 or operating agreement, to execute any
instruments and to take any and all other action on behalf of and
in the name of any 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 Asset, 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 (with all of the foregoing rights only to be
exercisable upon the occurrence and during the continuation of an
Event of Default); and
(F) all other property 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 of such Pledgor from time to
time in any and all of the foregoing;
(f) all Financial Assets and Investment Property of such
Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this
Section 3.1 or in Section 3.3 hereof, (x) except as otherwise provided in
subsection 6.11 of the Credit Agreement no Pledgor (to the extent that it is a
Borrower or a Domestic Subsidiary of Holdings) shall be required at any time to
pledge hereunder (and the Collateral of such Pledgor shall not include) more
than 65% of the Voting Stock of any Foreign Corporation and (y) so long as it
does not cause any materially adverse tax consequences to Holdings or any of its
Subsidiaries, each Pledgor shall be required to pledge hereunder 100% of any
Non-Voting Stock at any time and from time to time acquired by such Pledgor of
any Foreign Corporation.
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 the respective Pledgor) be pledged pursuant to Section 3.1 of
this Agreement and, in addition thereto, such Pledgor shall (to the extent
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provided below) take the following actions as set forth below (as promptly as
practicable and, in any event, within 30 days after it obtains such Collateral)
for the benefit of the Pledgee and the other Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall physically deliver such Certificated
Security to the Pledgee, endorsed to the Pledgee or endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing
Corporation), upon the occurrence and continuation of a Specified
Collateral Event or an Event of Default and if requested by the
Collateral Agent, the respective Pledgor shall cause the issuer of such
Uncertificated Security (or, in the case of an issuer that is not a
Subsidiary of such Pledgor, will use its best efforts to cause such
issuer) to duly authorize, execute and deliver to the Pledgee an
agreement for the benefit of the Pledgee and the other Secured Parties
substantially in the form of Exhibit A hereto (appropriately completed
to the satisfaction of the Pledgee and with such modifications, if any,
as shall be satisfactory to the Pledgee) pursuant to which such issuer
agrees 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 other than a
court of competent jurisdiction; provided that Pledgee hereby agrees
that it will not provide any instructions to any such issuer unless and
until an Event of Default has occurred and is continuing;
(iii) with respect to a 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), the respective Pledgor shall notify the Pledgee thereof and
shall take all actions required (i) to comply with the applicable rules
of such Clearing Corporation and (ii) upon the occurrence and
continuation of a Specified Collateral Event or an Event of Default and
if requested by the Collateral Agent, to perfect the security interest
of the Pledgee under applicable law (including, in any event, under
Sections 9-314(a), (b) and (c), 9-106 and 8-106(d) of the UCC). Each
such Pledgor further agrees to take such actions as the Pledgee deems
reasonably necessary or desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than a Partnership Interest or
Limited Liability Company Interest credited on the books of a Clearing
Corporation), (1) if such Partnership Interest or Limited Liability
Company Interest is represented by a certificate and is a Security for
purposes of the UCC, the procedure set forth in Section 3.2(a)(i)
hereof, and (2) if such Partnership Interest or Limited Liability
Company Interest is not represented by a certificate or is not a
Security for purposes of the UCC, the procedure set forth in Section
3.2(a)(ii) hereof;
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(v) with respect to any Note (other than, to the extent no
Event of Default has occurred and is continuing, a Note that
constitutes Chattel Paper or any Note evidencing an aggregate amount of
outstanding Indebtedness less than $750,000 at any time), physical
delivery of such Note to the Pledgee, endorsed to the Pledgee or
endorsed in blank; and
(vi) after an Event of Default has occurred and is continuing,
with respect to cash, to the extent not otherwise provided in the
Security Agreement, (i) establishment by the Pledgee of 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 except with the prior written consent
of the Pledgee) and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant
to preceding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor of which
the Pledgee may obtain "control" 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 laws of any relevant State
other than the State of New York), upon the occurrence and continuation
of a Specified Collateral Event or an Event of Default, the respective
Pledgor shall take all actions as may be 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) each Pledgor shall from time to time cause appropriate
financing statements (on appropriate forms) under the Uniform
Commercial Code as in effect in the various relevant States, in form
satisfactory to the Pledgee and covering all Collateral hereunder, to
be filed in the relevant filing offices so that at all times the
Pledgee has a security interest in all Investment Property and other
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 laws of the relevant States, including, without
limitation, Section 9-312(a) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall
acquire (by purchase, stock dividend 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
hereof and, furthermore, the Pledgor will thereafter take (or cause to be taken)
all action (as promptly as practicable and, in any event, within 30 days after
it obtains such Collateral) with respect to such Collateral in accordance with
the procedures set forth in Section 3.2 hereof, and will promptly thereafter
deliver to the Pledgee (i) a certificate executed by a senior financial 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 Creditors)
hereunder and (ii) supplements to Annexes B through G hereto as are necessary to
cause such annexes to be complete and accurate at such time.
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3.4 Transfer Taxes. Each pledge of Collateral under
Section 3.1 or Section 3.3 hereof shall be accompanied by any 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 on the date hereof: (i)
each Subsidiary of such Pledgor, and the direct ownership thereof, is listed on
Annex B hereto; (ii) the Stock held by such Pledgor consists of the number and
type of shares of the stock of the corporations as described in Annex C hereto;
(iii) such Stock referenced in clause (ii) of this paragraph constitutes that
percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex C hereto; (iv) the Notes held by such
Pledgor consist of the promissory notes described in Annex D hereto where such
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex E hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (vii) the Partnership Interests held by such Pledgor consist of
the number and type of interests of the Persons described in Annex F hereto;
(viii) each such Partnership Interest referenced in clause (vii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex F hereto; (ix) the exact
address of each chief executive office of such Pledgor is listed on Annex G
hereto; (x) the Pledgor has complied with the respective procedure set forth in
Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes C through F hereto; and (xi) such Pledgor owns no other Securities,
Limited Liability Company Interests or Partnership Interests; provided, that in
respect to the representations and warranties set forth in clauses (iii), (vi)
and (viii) above, to the extent that such Stock, Limited Liability Company
Interest or Partnership Interest, as applicable, is an ownership interest in a
Person other than a Subsidiary or Affiliate of Holdings or any of its
Subsidiaries, the applicable Pledgor shall make the aforementioned
representations and warranties on the basis of its knowledge after using
commercially reasonable efforts to obtain the necessary information from such
Person or its officers, employees or agents.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, 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 and until
there shall have occurred and be continuing an Event of Default, each Pledgor
shall be entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral owned by it, and to give consents, waivers or
ratifications in respect thereof; provided, that, in each case, no vote shall be
cast or any consent, waiver or ratification given or any action taken or omitted
to be
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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 Agreement, any
other Loan Document, any Secured Hedging Agreements entitled to the benefits of
this Agreement (collectively, the "Secured Debt Agreements"), or which would
have the effect of materially impairing the value of the Collateral or any part
thereof or the position or interests of the Pledgee or any other Secured
Creditor in the Collateral. All such rights of each Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default has
occurred and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default, all cash dividends,
cash distributions, cash Proceeds and other cash amounts payable in respect of
the Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash dividends
other than as set forth above) paid or distributed by way of dividend
or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) paid or
distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) 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 reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive 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 this Section 6
and Section 7 hereof shall be held for the benefit of the Pledgee, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
paid over to the Pledgee as Collateral in the same form as so received (with any
necessary endorsement).
7. REMEDIES IN CASE OF EVENT OF DEFAULT. Each Pledgor agrees that
if any Event of Default shall have occurred and be continuing, then and in every
such case, the Pledgee in addition to any rights now or hereafter existing under
applicable law, the other provisions of this Agreement or any other Loan
Document shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
any relevant jurisdiction and also shall be entitled,
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without limitation, to exercise the following rights, which each Pledgor hereby
agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the respective
Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) 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);
(iv) 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, subject to
provisions of all applicable law, otherwise act with respect thereto as
though it 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);
(v) at any time and 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 purchase or dispose (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 that at least 10 days'
written notice of the time and place of any such sale shall be given to
the respective Pledgor. The Pledgee shall not be obligated to make any
such sale of Collateral regardless of whether any such 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 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,
and all rights, if any, of marshalling the Collateral and any other
security for the Obligations or otherwise and all rights, if any, of
stay and/or appraisal which it 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 the Secured Parties may bid for and purchase all or any part
of the Collateral so sold free, to the extent permitted by applicable
law, from any such right or equity of redemption. Neither the Pledgee
nor any other Secured Party shall be liable for failure to collect 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
(vi) to set-off any and all Collateral against any and all
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;
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provided that, it being understood that each Pledgor's obligation to so deliver
the Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Pledgee shall be
entitled to a decree requiring specific performance by such Pledgor of said
obligation. By accepting the benefits of this Agreement and each other
Collateral Document, the Secured Creditors expressly acknowledge and agree that
this Agreement and each other Collateral Document may be enforced only by the
action of the Administrative Agent or the Pledgee acting upon the instructions
of the Required Secured Creditors and that no other Secured Creditor shall have
any right individually to seek to enforce this Agreement or any other Collateral
Document or to realize upon the security to be granted hereby or thereby, it
being understood and agreed that such rights and remedies may be exercised by
the Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement and the other Collateral Documents.
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and
remedy of the Pledgee or any other Secured Creditor provided for in this
Agreement or in any other Secured Debt Agreement, or now or hereafter existing
at law or in equity or by statute shall be cumulative and concurrent and shall
be in addition to every other such right, power or remedy. The exercise or
beginning of the exercise by the Pledgee or any other Secured Creditor of any
one or more of the rights, powers or remedies provided for in this Agreement or
any other Secured Debt Agreement 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 Creditor of all such other rights,
powers or remedies, and no failure or delay on the part of the Pledgee or any
other Secured Creditor to exercise any such right, power or remedy shall operate
as a waiver thereof. No notice to or demand on any Pledgor in any case shall
entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Pledgee or any
other Secured Creditor to any other or further action in any circumstances
without notice or demand. The Secured Creditors agree that this Agreement may be
enforced only by the action of the Pledgee, acting upon the instructions of the
Requisite Lenders (or, after the date on which all Credit Agreement Obligations
have been paid in full, the holders of at least a majority of the Other
Obligations) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Pledgee or the holders of at least a
majority of the Other Obligations, as the case may be, for the benefit of the
Secured Creditors upon the terms of this Agreement and the other Loan Documents.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in Section 7.4 of the
Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
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
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process or otherwise), the receipt of the Pledgee or the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Collateral
so sold, and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Pledgee or such
officer or be answerable in any way for the misapplication or nonapplication
thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify, reimburse and hold harmless the Pledgee, each other Secured Creditor
and their respective successors, assigns, employees, agents, affiliates and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
and against any and all liabilities, obligations, damages, injuries, penalties,
claims, demands, actions, suits, judgments and losses of whatsoever kind or
nature, and (ii) to reimburse each Indemnitee for any and all reasonable costs,
expenses and disbursements, including reasonable attorneys' fees and expenses,
in each case growing 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
Secured Debt Agreement (but excluding any liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and losses or
expenses to the extent incurred by reason of gross negligence, bad faith or
willful misconduct of such Indemnitee. In no event shall the Pledgee be liable,
in the absence of gross negligence, bad faith or willful misconduct on its part,
for any matter or thing in connection with this Agreement other than to account
for monies 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, 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 Notes issued under the Credit Agreement,
the termination of all Secured Hedging Agreements and Letters of Credit, and the
payment of all Obligations and notwithstanding the discharge thereof.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor 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 as a partner in any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
Collateral consisting of a Limited Liability Company Interest or Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor, any
Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 12, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or a partner of any partnership
or otherwise be deemed 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 as a partner of any
partnership or any Pledgor except as provided in the last sentence of paragraph
(a) of this Section 12.
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(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
the pledge 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 to which it is not a
party, 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.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees to execute and deliver to the Pledgee such financing statements, in form
reasonably acceptable to the Pledgee, as the Pledgee may from time to time
reasonably request or as are reasonably necessary or desirable in the opinion of
the Pledgee to establish and maintain a valid, enforceable, perfected security
interest in the Collateral as provided herein. Each Pledgor will pay any
applicable filing fees, recordation taxes and related expenses relating to the
perfection of Pledgee's security interest in its Collateral. Each Pledgor hereby
authorizes the Pledgee to file any such financing statements without the
signature of such Pledgor where permitted by law.
(b) Each Pledgor hereby constitutes and appoints the Pledgee
its true and lawful attorney, irrevocably, with full power after the occurrence
of and during the continuance of an Event of Default (in the name of such
Pledgor or otherwise) to act, require, demand, receive and give acquittance for
any and all monies and claims for monies due or to become due to such Pledgor
under or arising out of the Collateral, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which the Pledgee may deem to be necessary
or advisable to protect the interests of the Secured Parties, which appointment
as attorney is coupled with an interest.
14. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured
Creditor acknowledges and agrees 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 and in Section 9 of the Credit Agreement. The Pledgee shall
act hereunder on the terms and conditions set forth herein and in Section 9 of
the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Credit Agreement).
16. 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 and marketable title to, all Collateral and that it has sufficient
interest in all Collateral in which a
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security interest is purported to be created hereunder for such
security interest to attach (subject, in each case, to no pledge, lien,
mortgage, hypothecation, security interest, charge, option, Adverse
Claim or other encumbrance whatsoever, except the liens and security
interests created by this Agreement or permitted under the Secured Debt
Agreements);
(ii) it has full power, authority and legal right to pledge all
the Collateral 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
hereof 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);
(iv) except to the extent already obtained or made, no consent
of any other party (including, without limitation, any stockholder,
partner, member or creditor of such Pledgor or 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 (except as set forth in clause (iii) above), (c) the
perfection or enforceability of the Pledgee's security interest in the
Collateral or (d) except for compliance with or as may be required by
applicable securities laws, the exercise by the Pledgee of any of its
rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation or
of any order, judgment, writ, award or decree of any court, arbitrator
or governmental authority, domestic or foreign, applicable to such
Pledgor, or of the certificate of incorporation, operating agreement,
limited liability company agreement, partnership agreement or by-laws
of such Pledgor or of any securities issued by such Pledgor or any of
its Subsidiaries, or of any mortgage, deed of trust, indenture, lease,
loan agreement, credit agreement or other material 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
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as
contemplated by this Agreement (other than the Liens created by the
Collateral Documents);
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly acquired, is fully paid and non-assessable and is subject to no
options to purchase or similar rights;
(vii) each of the Pledged Notes, in respect to which any
Subsidiary or Affiliate of Holdings is the obligor thereof,constitutes,
or when executed by the obligor thereof
-18-
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);
(viii) the pledge, collateral assignment and delivery to the
Pledgee of the Collateral consisting of Certificated Securities
pursuant to this Agreement creates a valid and perfected first priority
security interest in such Certificated Securities, and the proceeds
thereof, subject to no prior Lien or encumbrance or to any agreement
purporting to grant to any third party a Lien or encumbrance on the
property or assets of such Pledgor which would include the Securities
(other than those Liens permitted to exist with respect to the
Collateral pursuant to the terms of the Secured Debt Agreements then in
effect) and the Pledgee is entitled to all the rights, priorities and
benefits afforded by the UCC or other relevant law as enacted in any
relevant jurisdiction to perfect security interests in respect of such
Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has
been obtained by the Pledgee over all Collateral consisting of
Securities with respect to which such "control" may be obtained
pursuant to Section 8-106 of the UCC, except to the extent that the
obligation of the applicable Pledgor to provide the Pledgee with
"control" of such Collateral has not yet arisen under this Agreement;
provided 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; 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
interest therein of the Pledgee and the other Secured Parties.
(c) Each Pledgor covenants and agrees that it will take no
action which would violate any of the terms of any Loan Document.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION;
LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact
legal name of each Pledgor, the type of organization of such Pledgor, whether or
not such Pledgor is a Registered Organization, the jurisdiction of organization
of such Pledgor, such Pledgor's Location, the organizational identification
number (if any) of each Pledgor, and whether or not such Pledgor is a
Transmitting Utility, is listed on Annex A hereto for such Pledgor. No Pledgor
shall change its legal name, its type of organization, its status as a
Registered Organization (in the case of a Registered Organization), its status
as a Transmitting Utility or as a Person which is not a Transmitting Utility, as
the case may be, its jurisdiction of organization, its Location, or its
organizational identification number
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(if any), except that any such changes shall be permitted (so long as not in
violation of the applicable requirements of the Secured Debt Agreements and so
long as same do not involve (x) a Registered Organization ceasing to constitute
same or (y) any Pledgor changing its jurisdiction of organization or Location
from the United States or a State thereof to a jurisdiction of organization or
Location, as the case may be, outside the United States or a State thereof) if
(i) it shall have given to the Collateral Agent not less than 15 days' prior
written notice of each change to the information listed on Annex A (as adjusted
for any subsequent changes thereto previously made in accordance with this
sentence), together with a supplement to Annex A which shall correct all
information contained therein for the respective Pledgor, and (ii) in connection
with the respective such change or changes, it shall have taken all action
reasonably requested by the Collateral Agent to maintain the security interests
of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect. In addition, to the extent
that any Pledgor does not have an organizational identification number on the
date hereof and later obtains one, such Pledgor shall promptly thereafter
deliver a notification of the Collateral Agent of such organizational
identification number and shall take all actions reasonably satisfactory to the
Collateral Agent to the extent necessary to maintain the security interest of
the Collateral Agent in the Collateral intended to be granted hereby fully
perfected and in full force and effect.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever (other than termination of this Agreement pursuant to
Section 20 hereof), including, without limitation: (i) any renewal, extension,
amendment or modification of or addition or supplement to or deletion from any
Secured Debt Agreement (other than this Agreement in accordance with its terms)
or any other instrument or agreement referred to therein, or any assignment or
transfer of any thereof; (ii) any waiver, consent, extension, indulgence or
other action or inaction under or in respect of any such agreement or instrument
including, without limitation, this Agreement (other than a waiver, consent or
extension with respect to this Agreement in accordance with its terms); (iii)
any furnishing of any additional security to the Pledgee or its assignee or any
acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. 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 hereof, and the Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively registered under
the Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral, as the case may be, or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the
-20-
foregoing, in any such event the Pledgee, in its sole and absolute discretion
(i) 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, (ii) may approach and negotiate with
a single possible purchaser to effect such sale, and (iii) 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, in good xxxxx xxxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date, this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 11 hereof shall survive such
termination) and the Pledgee, at the request and expense of the respective
Pledgor, will promptly execute and deliver to such Pledgor a proper instrument
or instruments (including Uniform Commercial Code termination statements)
acknowledging the satisfaction and termination of this Agreement, 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 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, "Termination Date" shall mean the date upon which the
Commitments under the Credit Agreement have been terminated and all Secured
Hedging Agreements entitled to the benefits of this Agreement have been
terminated, no Note, Loan or Letter of Credit is outstanding and all other
Obligations (other than indemnities described in Section 11 hereof and described
in Section 10.3 of the Credit Agreement, and any other indemnities set forth in
any other Collateral Documents, in each case which are not then due and payable)
then due and payable have been paid in full in cash.
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (x) at any time prior to the time at which all Loan
Document Obligations have been paid in full and all Commitments and Letters of
Credit under the Credit Agreement have been terminated, in connection with a
sale or disposition permitted by subsection 7.7 of the Credit Agreement or is
otherwise released at the direction of the Required Lenders (or all the Lenders
if required by subsection 10.6 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the other Secured Debt Agreements, and in
the case of clauses (x) and (y), the proceeds of such sale or disposition (or
from such release) are applied in accordance with the terms of the Credit
Agreement or such other Secured Debt Agreement, as the case may be, to the
extent required to be so applied, the Pledgee, at the request and expense of
such Pledgor, will duly release from the security interest created hereby (and
will execute and deliver such documentation, including termination or partial
release statements and the like in connection therewith) and assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such
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of the Collateral as is then being (or has been) so sold or released and as may
be in the possession of the Pledgee and has not theretofore been released
pursuant to this Agreement.
(c) At any time that the respective Pledgor desires that
Collateral be released as provided in the foregoing Section 20(a) or (b), it
shall deliver to the Pledgee a certificate signed by an authorized officer of
such Pledgor stating that the release of the respective Collateral is permitted
pursuant to Section 20(a) or (b) hereof. If reasonably requested by the Pledgee
(although the Pledgee shall have no obligation to make any such request), the
relevant Pledgor shall furnish appropriate legal opinions (from counsel
reasonably acceptable to the Pledgee) to the effect set forth in the immediately
preceding sentence. The Pledgee shall have no liability whatsoever to any
Secured Party as the result of any release of Collateral by it as permitted by
this Section 20.
(d) The Pledgee shall have no liability whatsoever to any
other Secured Party as the result of any release of Collateral by it in
accordance with (or which the Collateral Agent in the absence of gross
negligence and willful misconduct believes to be in accordance with) this
Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied or cabled or sent by courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Pledgee or any Pledgor
shall not be effective until received by the Collateral Agent or such Pledgor,
as the case may be. All notices and other communications shall be in writing
addressed as follows:
(a) if to any Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxx Xxxxxxxxx, Vice-President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000;
(c) if to any Lender Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent specified in
the Credit Agreement, or (y) at such address as such Lender Creditor shall have
specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Pledgors and the Pledgee;
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.
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22. WAIVER; AMENDMENT. Except as contemplated in Section 31
hereof, none of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by each Pledgor directly affected thereby and the Pledgee (with the
written consent of either (x) the Requisite Lenders (or all of the Lenders to
the extent required by subsection 10.6 of the Credit Agreement) at all times
prior to the time on which all Loan Document Obligations have been paid in full
or (y) the holders of at least a majority of the outstanding Other Obligations
at all times after the time on which all Loan Document Obligations have been
paid in full); provided, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class (as defined below) of
Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (i) the Lender
Creditors as holders of the Loan Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (i)
with respect to the Loan Document Obligations, the Requisite Lenders and (ii)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Secured Hedging Agreements.
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each Pledgor and its successors and assigns (although no Pledgor may assign its
rights and obligations hereunder except in accordance with the provisions of the
Secured Debt Agreements) and shall inure to the benefit of the Pledgee and the
other Secured Creditors and their respective successors and assigns. All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
-23-
PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS
PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES
AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT, OR
ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY
OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE
AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Pledgor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in Pledgor's possession, nor shall
the Pledgee be required or obligated in any manner to perform or fulfill any of
the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the
-24-
same instrument. A set of counterparts executed by all the parties hereto shall
be lodged with each Pledgor and the Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
29. RECOURSE. This Agreement is made with full recourse to each
Pledgor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Pledgor contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the requirements of the Credit
Agreement or any other Loan Document, shall automatically become a Pledgor
hereunder by executing a counterpart hereof and delivering the same to the
Pledgee. Each of Holdings and the Borrowers hereby agree that they shall and
shall cause any of their respective Subsidiaries that become a Pledgor hereunder
to (i) deliver supplements to Annexes A through G, inclusive, hereto, as are
necessary to cause such Annexes to be complete and accurate with respect to such
additional Pledgor on such date and (ii) take all actions as specified in this
Agreement as would have been taken by such Pledgor had it been an original party
to this Agreement, in each case with all documents required above to be
delivered to the Pledgee and with all documents and actions required above to be
taken to the reasonable satisfaction of the Pledgee.
31. RELEASE OF PLEDGORS. If at any time all of the Equity
Interests of any Pledgor owned by Borrowers and their respective Subsidiaries
are sold (to a Person other than either Borrower or any Subsidiary Guarantor) in
a transaction permitted pursuant to the Credit Agreement (and which does not
violate the terms of any other Secured Debt Agreement then in effect), then,
such Pledgor shall be released as a Pledgor pursuant to this Agreement without
any further action hereunder (it being understood that the sale of all of the
Equity Interests in any Person that owns, directly or indirectly, all of the
Equity Interests in any Pledgor shall be deemed to be a sale of all of the
Equity Interests in such Pledgor for purposes of this Section), and Pledgee is
authorized and directed to execute and deliver such instruments of release as
are reasonably satisfactory to it. At any time that Holdings desires that a
Pledgor be released from this Agreement as provided in this Section 31, Holdings
shall deliver to Pledgee a certificate signed by a principal executive officer
of Holdings stating that the release of the respective Pledgor is permitted
pursuant to this Section 31. If requested by Pledgee (although the Pledgee shall
have no obligation to make any such request), Holdings shall furnish legal
opinions (from counsel acceptable to the Pledgee) to the effect set forth in the
immediately preceding sentence. Pledgee shall have no liability whatsoever to
any other Secured Creditor as a result of the release of any Pledgor by it in
accordance with, or which it believes to be in accordance with, this Section 31.
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IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Addresses:
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S, INC., as a Pledgor
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Telecopy: 000-000-0000 Title: Vice President
Attention: Chief Financial Officer
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S FRANCHISE HOLDING CO., as
Xxx Xxxxx, XX 00000 a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Attention: Chief Financial Officer Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive TISM, INC., as a Pledgor
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Telecopy: 000-000-0000 Title: Vice President
Attention: Chief Financial Officer
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA LLC, as a Pledgor
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Telecopy: 000-000-0000 Title: Vice President
Attention: Chief Financial Officer
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA INTERNATIONAL, INC.,
Xxx Xxxxx, XX 00000 as a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Attention: Chief Financial Officer Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA GOVERNMENT SERVICES
Xxx Xxxxx, XX 00000 DIVISION, INC., as a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Attention: Chief Financial Officer Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA INTERNATIONAL PAYROLL
Xxx Xxxxx, XX 00000 SERVICES, INC., as a Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Attention: Chief Financial Officer Title: Vice President
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA PMC, INC., as a
Xxx Xxxxx, XX 00000 Pledgor
Telephone: 000-000-0000
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Telecopy: 000-000-0000 Title: Vice President
Attention: Chief Financial Officer
30 Xxxxx Xxxxx Xxxxxx Drive DOMINO'S PIZZA CALIFORNIA LLC, as a
Xxx Xxxxx, XX 00000 Pledgor
Telephone: 000-000-0000
Telecopy: 000-000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Attention: Chief Financial Officer Title: Vice President
Accepted and Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent and Pledgee
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Title: Vice President
