SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT is made as of
December 23, 1998 (this "Agreement"), by and between ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ HOLDING,
INC., a Delaware corporation (the "Company"), and BANKBOSTON, N.A., a national
banking association, as agent (in such capacity, the "Agent") for itself and
other lending institutions (collectively, the "Banks") which are or may become
parties to that certain Second Amended and Restated Revolving Credit Agreement
dated as of December 23, 1998 (as amended and in effect from time to time, the
"Credit Agreement") among the Company, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. (the "Borrower"),
the Banks and the Agent.
WHEREAS, pursuant to that certain Amended and Restated Revolving
Credit and Term Loan Agreement dated as of December 5, 1997 (as amended and in
effect from time to time, the "First Restated Credit Agreement", which amended
and restated in its entirety the Revolving Credit and Term Loan Agreement dated
as of September 27, 1996), the Banks made loans or otherwise extended credit to
the Borrower for the purposes described therein;
WHEREAS, the Company and the Agent entered into that certain Amended
and Restated Stock Pledge Agreement dated as of December 5, 1997 (as amended and
in effect from time to time, the "First Restated Stock Pledge Agreement", which
amended and restated in its entirety the Stock Pledge Agreement dated as of
September 27, 1996) by and between the Company and the Agent, for the benefit of
the Banks and the Agent;
WHEREAS, the Company, the Borrower, the Banks and the Agent have
entered into the Credit Agreement to amend and restate in its entirety the First
Restated Credit Agreement;
WHEREAS, it is a condition precedent to the Banks amending and
restating the First Restated Credit Agreement and converting any loans under the
First Restated Credit Agreement into Loans under the Credit Agreement or making
any other Loans under the Credit Agreement that the Company execute and deliver
to the Agent, for the benefit of the Banks and the Agent, a pledge agreement in
substantially the form hereof;
WHEREAS, the Company wishes to grant pledges and security interests in
favor of the Agent in order to secure the Obligations and to ratify and confirm
the prior grant of pledges and security interests under the First Restated Stock
Pledge Agreement; and
WHEREAS, the Company is the direct legal and/or beneficial owner of
all (except as otherwise noted in ANNEX A) of the issued and outstanding shares
of each class of the capital stock of each of the corporations described on
ANNEX A;
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NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Agent agree that the First Restated
Stock Pledge Agreement is hereby amended and restated in its entirety as
follows:
1. PLEDGE OF STOCK, ETC.
1.1. PLEDGE OF STOCK. The Company hereby pledges, assigns,
grants a security interest in, and delivers to the Agent, for the
benefit of the Banks, all of the shares of capital stock of the
Borrower of every class, as more fully described on ANNEX A hereto, to
be held by the Agent, for the benefit of the Banks, subject to the
terms and conditions hereinafter set forth. The certificates for such
shares, accompanied by stock powers or other appropriate instruments
of assignment thereof duly executed in blank by the Company, have been
delivered to the Agent.
1.2. ADDITIONAL STOCK. In case the Company shall acquire any
additional shares of the capital stock of the Borrower or any other
Subsidiary of the Company or any corporation which is the successor of
the Borrower or such Subsidiary, or any securities exchangeable for or
convertible into shares of such capital stock of any class of the
Borrower or such Subsidiary, by purchase, stock dividend, stock split
or otherwise, then the Company shall forthwith deliver to and pledge
such shares or other securities to the Agent, for the benefit of the
Banks, under this Agreement and shall deliver to the Agent forthwith
any certificates therefor, accompanied by stock powers or other
appropriate instruments of assignment duly executed in blank by the
Company. The Company agrees that the Agent may from time to time
attach as ANNEX A hereto an updated list of the shares of capital
stock or securities at the time pledged with the Agent hereunder.
1.3. PLEDGE OF CASH COLLATERAL ACCOUNT. The Company also
hereby pledges, assigns, grants a security interest in, and delivers
to the Agent, the Cash Collateral Account and all of the Cash
Collateral as such terms are hereinafter defined.
2. DEFINITIONS. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement. Terms used herein and not defined in the
Credit Agreement or otherwise defined herein that are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts have such
defined meanings herein, unless the context otherwise indicated or requires, and
the following terms shall have the following meanings:
CASH COLLATERAL. See Section 4.
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CASH COLLATERAL ACCOUNT. See Section 4.
STOCK. Includes the shares of stock described in ANNEX A attached
hereto and any additional shares of stock at the time pledged with the Agent
hereunder.
STOCK COLLATERAL. The property at any time pledged to the Agent
hereunder (whether described herein or not) and all income therefrom, increases
therein and proceeds thereof, including without limitation that included in Cash
Collateral but excluding from the definition of "Stock Collateral" any income,
increases or proceeds received by the Company to the extent expressly permitted
by Section 6.
TIME DEPOSITS. See Section 4.
3. SECURITY FOR OBLIGATIONS. This Agreement and the security interest
in and pledge of the Stock Collateral hereunder are made with and granted to the
Agent, for the benefit of the Banks, as security for the payment and performance
in full of all the Obligations.
4. LIQUIDATION, RECAPITALIZATION, ETC.
4.1. DISTRIBUTIONS PAID TO AGENT. Any sums or other property
paid or distributed upon or with respect to any of the Stock, whether
by dividend or redemption or upon the liquidation or dissolution of
the issuer thereof or otherwise, shall, except to the limited extent
provided in Section 6, be paid over and delivered to the Agent to be
held by the Agent as security for the payment and performance in full
of all of the Obligations. In case, pursuant to the recapitalization
or reclassification of the capital of the issuer thereof or pursuant
to the reorganization thereof, any distribution of capital shall be
made on or in respect of any of the Stock or any property shall be
distributed upon or with respect to any of the Stock, the property so
distributed shall be delivered to the Agent to be held by it as
security for the Obligations. Except to the limited extent provided in
Section 6, all sums of money and property paid or distributed in
respect of the Stock, whether as a dividend or upon such a
liquidation, dissolution, recapitalization or reclassification or
otherwise, that are received by the Company shall, until paid or
delivered to the Agent, be held in trust for the Agent as security for
the payment and performance in full of all of the Obligations.
4.2. CASH COLLATERAL ACCOUNT. All sums of money that are
delivered to the Agent pursuant to this Section 4 shall be deposited
into an interest bearing account with the Agent (the "Cash Collateral
Account"). Some or all of the funds from time to time in the Cash
Collateral Account may be invested in time deposits, including,
without limitation, certificates of deposit issued by the Agent (such
certificates of deposit or other time deposits being hereinafter
referred to, collectively, as "Time Deposits"), that are satisfactory
to the Agent
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after consultation with the Company, PROVIDED, that, in each such
case, arrangements satisfactory to the Agent are made and are in place
to perfect and to ensure the first priority of the Agent's security
interest therein. Interest earned on the Cash Collateral Account and
on the Time Deposits, and the principal of the Time Deposits at
maturity that is not invested in new Time Deposits, shall be deposited
in the Cash Collateral Account. The Cash Collateral Account, all sums
from time to time standing to the credit of the Cash Collateral
Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds or any
thereof are hereinafter referred to as the "Cash Collateral."
4.3. COMPANY'S RIGHTS TO CASH COLLATERAL, ETC. Except as
otherwise expressly provided in Section 15, the Company shall have no
right to withdraw sums from the Cash Collateral Account, to receive
any of the Cash Collateral or to require the Agent to part with the
Agent's possession of any instruments or other writings evidencing any
Time Deposits.
5. WARRANTY OF TITLE; AUTHORITY. The Company hereby represents and
warrants that: (i) the Company has good and marketable title to, and is the sole
record and beneficial owner of, the Stock described in Section 1, subject to no
pledges, liens, security interests, charges, options, restrictions or other
encumbrances except the pledge and security interest created by this Agreement,
(ii) all of the Stock described in Section 1 is validly issued, fully paid and
non-assessable, (iii) the Company has full power, authority and legal right to
execute, deliver and perform its obligations under this Agreement and to pledge
and grant a security interest in all of the Stock Collateral pursuant to this
Agreement, and the execution, delivery and performance hereof and the pledge of
and granting of a security interest in the Stock Collateral hereunder have been
duly authorized by all necessary corporate or other action and do not contravene
any law, rule or regulation or any provision of the Company's charter documents
or by-laws or of any judgment, decree or order of any tribunal or of any
agreement or instrument to which the Company is a party or by which it or any of
its property is bound or affected or constitute a default thereunder, and (iv)
the information set forth in ANNEX A hereto relating to the Stock is true,
correct and complete in all respects. The Company covenants that it will defend
the rights and security interest of the Banks and the Agent in such Stock
against the claims and demands of all persons whomsoever. The Company further
covenants that it will have the like title to and right to pledge and grant a
security interest in the Stock Collateral hereafter pledged or in which a
security interest is granted to the Agent hereunder and will likewise defend the
rights, pledge and security interest thereof and therein of the Banks and the
Agent.
6. DIVIDENDS, VOTING, ETC., PRIOR TO MATURITY. Unless the
circumstances described in the penultimate sentence of this section exist, the
Company shall be entitled to receive all cash dividends paid in respect
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of the Stock, to vote the Stock and to give consents, waivers and ratifications
in respect of the Stock; PROVIDED, HOWEVER, that no vote shall be cast or
consent waiver or ratification given by the Company if the effect thereof would
in the reasonable judgment of the Agent impair any of the Stock Collateral or be
inconsistent with or result in any violation of any of the provisions of the
Credit Agreement, the Notes or any of the other Loan Documents. If an Event of
Default shall have occurred and be continuing and such Event of Default shall
have resulted in a restriction, pursuant to the Subordination Agreement, on the
ability of the Company to make payments on the Subordinated Debt, then for so
long as such restriction is in effect all such rights of the Company to receive
cash dividends shall cease. All such rights of the Company to vote and give
consents, waivers and ratifications with respect to the Stock shall, at the
Agent's option, as evidenced by the Agent's notifying the Company of such
election, cease in case an Event of Default shall have occurred and be
continuing.
7. REMEDIES.
7.1. IN GENERAL. If an Event of Default shall have occurred
and be continuing, the Agent shall thereafter have the following
rights and remedies (to the extent permitted by applicable law) in
addition to the rights and remedies of a secured party under the
Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts, all such rights and remedies being cumulative, not
exclusive, and enforceable alternatively, successively or
concurrently, at such time or times as the Agent deems expedient:
(a) if the Agent so elects and gives notice of
such election to the Company, the Agent may vote any or all
shares of the Stock (whether or not the same shall have been
transferred into its name or the name of its nominee or
nominees) for any lawful purpose, including, without
limitation, if the Agent so elects, for the liquidation of
the assets of the issuer thereof, and give all consents,
waivers and ratifications in respect of the Stock and
otherwise act with respect thereto as though it were the
outright owner thereof (the Company hereby irrevocably
constituting and appointing the Agent the proxy and
attorney-in-fact of the Company, with full power of
substitution, to do so);
(b) the Agent may demand, ▇▇▇ for, collect or make
any compromise or settlement the Agent deems suitable in
respect of any Stock Collateral;
(c) the Agent may sell, resell, assign and
deliver, or otherwise dispose of any or all of the Stock
Collateral, for cash or credit or both and upon such terms
at such place or places, at such time or times and to such
entities or other persons as the Agent thinks expedient, all
without demand for
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performance by the Company or any notice or advertisement
whatsoever except as expressly provided herein or as may
otherwise be required by law;
(d) the Agent may cause all or any part of the
Stock held by it to be transferred into its name or the name
of its nominee or nominees; and
(e) the Agent may set off against the Obligations
any and all sums deposited with it or held by it, including
without limitation, any sums standing to the credit of the
Cash Collateral Account and any Time Deposits issued by the
Agent.
7.2. SALE OF STOCK COLLATERAL. In the event of any
disposition of the Stock Collateral as provided in clause (c) of
Section 7.1, the Agent shall give to the Company at least ten (10)
Business Days prior written notice of the time and place of any public
sale of the Stock Collateral or of the time after which any private
sale or any other intended disposition is to be made. The Company
hereby acknowledges that ten (10) Business Days prior written notice
of such sale or sales shall be reasonable notice. The Agent may
enforce its rights hereunder without any other notice and without
compliance with any other condition precedent now or hereunder imposed
by statute, rule of law or otherwise (all of which are hereby
expressly waived by the Company, to the fullest extent permitted by
law). The Agent may buy any part or all of the Stock Collateral at any
public sale and if any part or all of the Stock Collateral is of a
type customarily sold in a recognized market or is of the type which
is the subject of widely-distributed standard price quotations, the
Agent may buy at private sale and may make payments thereof by any
means. The Agent may apply the cash proceeds actually received from
any sale or other disposition to the reasonable expenses of retaking,
holding, preparing for sale, selling and the like, to reasonable
attorneys' fees, travel and all other expenses which may be incurred
by the Agent in attempting to collect the Obligations or to enforce
this Agreement or in the prosecution or defense of any action or
proceeding related to the subject matter of this Agreement, and then
to the Obligations in the order set forth in such order or preference
as the Agent may determine after proper allowance for Obligations not
then due. Only after such applications, and after payment by the Agent
of any amount required by Section 9-504(1)(c) of the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts,
need the Agent account to the Company for any surplus.
7.3. REGISTRATION OF STOCK. If the Agent shall determine to
exercise its right to sell any or all of the Stock pursuant to this
Section 7, and if in the opinion of counsel for the Agent it is
necessary, or if in the reasonable opinion of the Agent it is
advisable, to have the Stock,
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or that portion thereof to be sold, registered under the provisions of
the Securities Act of 1933, as amended (the "Securities Act"), the
Company agrees to use its best efforts to cause the issuer or issuers
of the Stock contemplated to be sold, to execute and deliver, and
cause the directors and officers of such issuer to execute and
deliver, all at the Company's expense, all such instruments and
documents, and to do or cause to be done all such other acts and
things as may be necessary or, in the reasonable opinion of the Agent,
advisable to register such Stock under the provisions of the
Securities Act and to cause the registration statement relating
thereto to become effective and to remain effective for a period of 9
months from the date such registration statement became effective, and
to make all amendments thereto or to the related prospectus or both
that, in the reasonable opinion of the Agent, are necessary or
advisable, all in conformity with the requirements of the Securities
Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. The Company agrees to use its best
efforts to cause such issuer or issuers to comply with the provisions
of the securities or "Blue Sky" laws of any jurisdiction which the
Agent shall designate and to cause such issuer or issuers to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
7.4. PRIVATE SALES. The Company recognizes that the Agent
may be unable to effect a public sale of the Stock by reason of
certain prohibitions contained in the Securities Act, federal banking
laws, and other applicable laws, but may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers. The
Company agrees that any such private sales may be at prices and other
terms less favorable to the seller than if sold at public sales and
that such private sales shall not by reason thereof be deemed not to
have been made in a commercially reasonable manner. The Agent shall be
under no obligation to delay a sale of any of the Stock for the period
of time necessary to permit the issuer of such securities to register
such securities for public sale under the Securities Act, or such
other federal banking or other applicable laws, even if the issuer
would agree to do so. Subject to the foregoing, the Agent agrees that
any sale of the Stock shall be made in a commercially reasonable
manner, and the Company agrees to use its best efforts to cause the
issuer or issuers of the Stock contemplated to be sold, to execute and
deliver, and cause the directors and officers of such issuer to
execute and deliver, all at the Company's expense, all such
instruments and documents, and to do or cause to be done all such
other acts and things as may be necessary or, in the reasonable
opinion of the Agent, advisable to exempt such Stock from registration
under the provisions of the Securities Act, and to make all amendments
to such instruments and documents which, in the opinion of the Agent,
are necessary or advisable, all in conformity with the requirements of
the
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Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Company further agrees to
use its best efforts to cause such issuer or issuers to comply with
the provisions of the securities or "Blue Sky" laws of any
jurisdiction which the Agent shall designate and, if required, to
cause such issuer or issuers to make available to its security
holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
7.5. COMPANY'S AGREEMENTS, ETC. The Company further agrees
to do or cause to be done all such other acts and things as may be
reasonably necessary to make any sales of any portion or all of the
Stock pursuant to this Section 7 valid and binding and in compliance
with any and all applicable laws (including, without limitation, the
Securities Act, the Securities Exchange Act of 1934, as amended, the
rules and regulations of the Securities and Exchange Commission
applicable thereto and all applicable state securities or "Blue Sky"
laws), regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales,
all at the Company's expense. The Company further agrees that a breach
of any of the covenants contained in this Section 7 will cause
irreparable injury to the Agent, that the Agent has no adequate remedy
at law in respect of such breach and, as a consequence, agrees that
each and every covenant contained in this Section 7 shall be
specifically enforceable against the Company and the Company hereby
waives and agrees not to assert any defenses against an action for
specific performance of such covenants.
8. MARSHALLING. The Agent shall not be required to marshal any present
or future security for (including but not limited to this Agreement and the
Stock Collateral), or other assurances of payment of, the Obligations or any of
them, or to resort to such security or other assurances of payment in any
particular order. All of the Agent's rights hereunder and in respect of such
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral that might cause delay in or impede the enforcement of
the Agent's rights under this Agreement or under any other instrument evidencing
any of the Obligations or under which any of the Obligations is outstanding or
by which any of the Obligations is secured or payment thereof is otherwise
assured, and to the extent that it lawfully may the Company hereby irrevocably
waives the benefits of all such laws.
9. COMPANY'S OBLIGATIONS NOT AFFECTED. The obligations of the Company
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by (i) any exercise or nonexercise, or any waiver,
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by the Agent of any right, remedy, power or privilege under or in respect of any
of the Obligations or any security thereof (including this Agreement); (ii) any
amendment to or modification of the Credit Agreement, the Notes, the other Loan
Documents or any of the Obligations; (iii) any amendment to or modification of
any instrument (other than this Agreement) securing any of the Obligations,
including, without limitation, any of the Security Documents; or (iv) the taking
of additional security for, or any other assurances of payment of, any of the
Obligations or the release or discharge or termination of any security or other
assurances of payment or performance for any of the Obligations; whether or not
the Company shall have notice or knowledge of any of the foregoing.
10. TRANSFER, ETC., BY COMPANY. Without the prior written consent of
the Agent, the Company will not sell, assign, transfer or otherwise dispose of,
grant any option with respect to, or pledge or grant any security interest in or
otherwise encumber or restrict any of the Stock Collateral or any interest
therein, except for the pledge thereof and security interest therein provided
for in this Agreement.
11. FURTHER ASSURANCES. The Company will do all such acts, and will
furnish to the Agent all such financing statements, certificates, legal opinions
and other documents and will obtain all such governmental consents and corporate
approvals and will do or cause to be done all such other things as the Agent may
reasonably request from time to time in order to give full effect to this
Agreement and to secure the rights of the Agent hereunder, all without any cost
or expense to the Agent. If the Agent so elects, a photocopy of this Agreement
may at any time and from time to time be filed by the Agent as a financing
statement in any recording office in any jurisdiction.
12. AGENT'S EXONERATION. Under no circumstances shall the Agent be
deemed to assume any responsibility for or obligation or duty with respect to
any part or all of the Stock Collateral of any nature or kind or any matter or
proceedings arising out of or relating thereto, other than (i) to exercise
reasonable care in the physical custody of the Stock Collateral and (ii) after
an Event of Default shall have occurred and be continuing, to act in a
commercially reasonable manner. The Agent shall not be required to take any
action of any kind to collect, preserve or protect its or the Company's rights
in the Stock Collateral or against other parties thereto. The Agent's prior
recourse to any part or all of the Stock Collateral shall not constitute a
condition of any demand, suit or proceeding for payment or collection of any of
the Obligations.
13. NO WAIVER, ETC. No act, failure or delay by the Agent shall
constitute a waiver of its rights and remedies hereunder or otherwise. No single
or partial waiver by the Agent of any default or right or remedy that it may
have shall operate as a waiver of any other default, right or remedy or of the
same default, right or remedy on a future occasion. The Company hereby waives
presentment, notice of dishonor and protect of all
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instruments, included in or evidencing any of the Obligations or the Stock
Collateral, and any and all other notices and demands whatsoever (except as
expressly provided herein or in the Credit Agreement).
14. NOTICE, ETC. All notices, requests and other communications
hereunder shall be made in the manner set forth in, and at the address specified
by reference in Section 20 of the Credit Agreement.
15. TERMINATION. Upon final payment and performance in full of the
Obligations, this Agreement shall terminate and the Agent shall, at the
Company's request and expense, return such Stock Collateral in the possession or
control of the Agent as has not theretofore been disposed of pursuant to the
provisions hereof, together with any moneys and other property at the time held
by the Agent hereunder.
16. NO WAIVER. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a written instrument
expressly referring to this Agreement and to the provisions so modified or
limited, and executed by the party to be charged.
17. SUCCESSORS AND ASSIGNS. This Agreement and all obligations of the
Company shall be binding upon the successors and assigns of the Company, and
shall, together with the rights and remedies of the Agent hereunder, inure to
the benefit of the Agent, its successors in title and assigns.
18. GOVERNING LAW. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS AN
INSTRUMENT UNDER SEAL AND THIS AGREEMENT AND THE OBLIGATIONS OF THE COMPANY
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
19. WAIVER OF JURY TRIAL. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. The Company (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or such Bank has represented, expressly or otherwise, that
the Agent or such Bank would not, in the event of litigation, seek to enforce
the foregoing waivers and (ii) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent and the Banks are
parties, the Agent is relying upon, among other things, the waivers and
certifications contained in this Section 19.
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20. HEADINGS. The descriptive section headings have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
21. SEVERABILITY, ETC. If any term of this Agreement shall be held to
be invalid, illegal or unenforceable, the validity of all other terms hereof
shall be in no way affected thereby, and this Agreement shall be construed and
be enforceable as if such invalid, illegal or unenforceable term had not been
included herein. The Company acknowledges receipt of a copy of this Agreement.
22. TRANSITIONAL ARRANGEMENTS. This Agreement shall supersede the
First Restated Stock Pledge Agreement in its entirety on and as of the Closing
Date. On the Closing Date, the rights and obligations of the parties under the
First Restated Stock Pledge Agreement shall be subsumed within and governed by
this Agreement; PROVIDED, that the provisions of the First Restated Stock Pledge
Agreement shall remain in full force and effect prior to the Closing Date. The
security interest granted by this Agreement is an extension of the security
interest granted in the First Restated Stock Pledge Agreement
[REMAINING PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, intending to be legally bound, the Company and the
Agent have caused this Second Amended and Restated Stock Pledge Agreement to be
executed as of the date first above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ HOLDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: CFO
BANKBOSTON, N.A., AS AGENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Director
The undersigned Subsidiaries hereby join in the above Agreement for
the sole purpose of consenting to and being bound by the provisions of Sections
4.1, 6 and 7 thereof, the undersigned hereby agreeing to cooperate fully and in
good faith with the Bank and the Company in carrying out such provisions.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: CFO
ANNEX A TO PLEDGE AGREEMENT
None of the issuers has any authorized, issued or outstanding shares
of its capital stock of any class or any commitments to issue any shares of its
capital stock of any class or any securities convertible into or exchangeable
for any shares of its capital stock of any class except as otherwise stated in
this ANNEX A.
Number of Number of Number of Par or
Record Class of Authorized Issued Outstanding Liquidation
Issuer Owner Shares Shares Shares Shares Value
------ ------ -------- ---------- ---------- ----------- -----------
Charlotte Charlotte common 4,000 4,000 4,000 $10.00
Russe, Inc. Russe
Holding, Inc.
