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Exhiit 10.9
CLUB TRUST PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (the "Agreement" or the
"Club Trust Pledge and Security Agreement") dated as of June 28, 1996, by and
between INDIANS CLUB TRUST, a Delaware business trust (the "Indians Club
Trust"), and MAJOR LEAGUE BASEBALL TRUST, a Delaware business trust (the "MLB
Trust").
WITNESSETH:
WHEREAS the MLB Trust, Fleet National Bank, as Facilitating
Agent and the Club Trusts deemed to be parties thereto, have entered into a Club
Trust Reducing Revolving Credit Agreement dated as of June 28, 1996 (as modified
or amended from time to time, the "Club Trust Credit Agreement").
WHEREAS the Indians Club Trust has executed a Ratification
Agreement dated as of June 28, 1996, pursuant to which, upon its acceptance by
the Administrative Agent, such Club Trust will be deemed to be a party to the
Club Trust Credit Agreement.
WHEREAS the MLB Trust will make Loans to the Indians Club
Trust and each of the other Club Trusts deemed to be parties to the Club Trust
Credit Agreement under their respective Club Trust Sub-Facilities.
WHEREAS the assets of each Club Trust (including the Indians
Club Trust) consist primarily of the Rights and Revenues contributed by the
related Participating Club and the proceeds thereof.
WHEREAS, as a condition precedent to entering into the Club
Trust Credit Agreement, and the making of any Loans under a Club Trust's Club
Trust Sub-Facility, the MLB Trust has required, among other things, that each
Club Trust (including the Indians Club Trust) Grant to the MLB Trust a lien on,
security interest in and collateral assignment of certain of the Club Trust's
assets as collateral security for the Loans and other obligations incurred by
such Club Trust under its Sub-Facility.
WHEREAS, to acquire the funds necessary to make Loans to the
Club Trusts (including the Indians Club Trust), the MLB Trust has entered into a
Reducing Revolving Credit Agreement dated as of June 28, 1996 (as modified or
amended from time to time, the "MLB Credit Agreement"), among Fleet National
Bank, as Administrative Agent, Bank of America, Chemical Bank, and Xxxxxx
Guaranty Trust Company of New York (together with the Administrative Agent, the
"Agent Banks"), the Banks and the MLB Trust.
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WHEREAS, as a condition precedent to entering into the MLB
Credit Agreement, the Banks have required, among other things, that (a) the MLB
Trust pursuant to the MLB Pledge and Security Agreement Grant to the
Administrative Agent a lien on, security interest in and collateral assignment
of, among other things, the collateral pledged to the MLB Trust by the Club
Trusts (including the Indians Club Trust) as security for their Loans under
their Club Trust Sub-Facilities and (b) each of the Club Trusts consent to such
collateral assignment to the Administrative Agent.
WHEREAS the MLB Trust, the Club Trusts and the Banks under the
MLB Credit Agreement wish to establish, pursuant to the MLB Pledge and Security
Agreement, the Collection Account and the Debt Service Account for the benefit
of the Banks and for use in connection with the administration of collections
with respect to the Rights and Revenues and other collateral thereunder.
NOW, THEREFORE, for and in consideration of the acceptance by
the MLB Trust of the Indians Club Trust, as a borrower under the Club Trust
Credit Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized
terms shall have the meanings set forth in Annex A hereto. In addition, the
interpretive guidelines set forth in such Annex A shall be applicable to this
Agreement.
2. PLEDGE, ASSIGNMENT AND GRANT OF SECURITY INTEREST; CONSENT
TO ASSIGNMENT AND ENFORCEMENT. (a) SECURITY INTEREST. To secure the prompt
payment or performance in full when due, whether by lapse of time, acceleration
or otherwise, of the Club Trust Secured Obligations and, without duplication and
subject to the restrictions on cross-collateralization contained in the
Transaction Documents (including Section 2.12(d) of the Club Trust Credit
Agreement), Secured Obligations attributable to the Indians Club Trust, the
Indians Club Trust hereby assigns and pledges to the MLB Trust and hereby Grants
to the MLB Trust a security interest in and a right to setoff against (and only
against the above-described obligations of such Club Trust), and acknowledges
and agrees that the MLB Trust (and, with respect to rights of setoff, each of
the Banks under the MLB Credit Agreement) has and shall continue to have a
continuing security interest in and a right of setoff against, any and all
right, title and interest of the Indians Club Trust, whether now existing or
hereafter acquired or arising, in (all of which are herein called the "Club
Trust Collateral"):
(i) the Rights and Revenues transferred and assigned to the
Indians Club Trust by its related Participating Club pursuant to the
Transfer Agreement;
(ii) amounts on deposit from time to time in the Collection
Account and the Debt Service Account attributable to the Indians Club
Trust;
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(iii) the Club Trust Assigned Documents;
(iv) any and all other assets of the Indians Club Trust
(excluding amounts on deposit in the Indians Club Trust Distribution
Account); and
(v) all products and the proceeds of the foregoing items.
The Indians Club Trust acknowledges and agrees that, in
applying the law of any jurisdiction that has heretofore enacted or hereafter
enacts all or substantially all of the uniform revisions of Article 8 of the
Uniform Commercial Code, with new provisions added to Article 9 as contemplated
by such revision, all as approved in 1994 by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws, the foregoing
definitions of Collateral and Pledged Collateral shall be deemed to include
"investment property", as applicable, as defined in such new provisions of
Article 9, it being the intent of the Indians Club Trust and the MLB Trust that
such property be included in the foregoing definition of Collateral, whether
prior to or after the effectiveness of such revision in any such jurisdiction.
(b) CONSENT TO ASSIGNMENT AND ENFORCEMENT. The Indians Club
Trust hereby acknowledges and consents to each of (i) the assignment to the
Administrative Agent pursuant to the MLB Pledge and Security Agreement of the
Grant of the MLB Trust's security interest hereunder in the Club Trust
Collateral and (ii) the delivery of any or all of the Club Trust Collateral to
the Administrative Agent. In connection with such assignment, the Indians Club
Trust acknowledges and agrees that the MLB Trust is the direct beneficiary of
certain rights and benefits hereunder and that, as the assignee pursuant to the
MLB Pledge and Security Agreement of the MLB Trust's rights hereunder, the
Administrative Agent is entitled to the benefits and protections of and may
enforce this Xxxxxxxxx.xx if it were a party thereto.
3. GENERAL REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. The Indians Club Trust hereby represents and warrants to, and
covenants and agrees with, the MLB Trust that:
(a) CLUB TRUST REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties as to the Rights and Revenues set forth below is
true and correct in all material respects as of the date hereof and as of the
date deemed made pursuant to the Club Trust Credit Agreement:
(i) MEMBERSHIP. The Indians Club Trust's related Participating
Club is a member in good standing of its League and Major League
Baseball.
(ii) COMPLIANCE. The Indians Club Trust's related
Participating Club is in compliance with all requirements imposed by
the Commissioner, its League or Major League Baseball, except where the
failure to do so would not materially
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adversely affect the Rights and Revenues transferred to the Indians
Club Trust pursuant to the Transfer Agreement and pledged to the MLB
Trust pursuant to this Agreement; the Indians Club Trust's related
Participating Club is in compliance with the terms of the Major League
Agreement, the Central Fund Agreement, its League Agreement, the MLB
Agreements and each of the National Media Contracts, except where the
failure to do so would not materially adversely affect the Rights and
Revenues transferred to the Indians Club Trust pursuant to the Transfer
Agreement and pledged to the MLB Trust pursuant to this Agreement.
(iii) BOUND BY AGREEMENTS. With respect to the Indians Club
Trust's related Participating Club, all the provisions of the
constitutive documents of its League and the Major League Agreement,
including any amendments from time to time, all Commissioner
resolutions and all resolutions of the Executive Council, and rules or
policies as the Executive Council or the Commissioner may issue from
time to time that are within the issuing party's jurisdiction, are,
unless the same by their terms are not applicable to such Participating
Club, binding and enforceable against such Participating Club, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity).
(iv) NATIONAL MEDIA CONTRACTS. (A) To the best knowledge of
the Indians Club Trust, each National Media Contract is legally binding
and enforceable against the Obligor thereunder, in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors'
rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity) (B) the Indians Club Trust is the owner of a Pro Rata interest
in each National Media Contract and such Pro Rata interest is not
subject to any prior Lien (other than the Lien of this Agreement or the
MLB Pledge and Security Agreement); (C) to the best knowledge of the
Indians Club Trust, no Bankruptcy Event has occurred or is threatened
with respect to the Obligor under any material National Media Contract;
and (D) the Indians Club Trust is entitled to receive a Pro Rata
portion of the Revenues from National Media Contracts payable from time
to time.
(v) VALID TRANSFER. The transfer and assignment by the Indians
Club Trust's related Participating Club pursuant to the Transfer
Agreement constituted a true transfer, by capital contribution, of its
Rights and Revenues from such Participating Club to the Indians Club
Trust such that such Participating Club retained no interest in, or any
risk with respect to, such Rights and Revenues and such that the
beneficial interest in and title to its Rights and Revenues will not be
part of the debtor's estate in the event of the filing of a bankruptcy
petition by or
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against such Participating Club under any bankruptcy law. Immediately
prior to such transfer and assignment, such Participating Club had good
and marketable title to all its Rights and Revenues, free and clear of
all Liens (other than the Liens, if any, referred to on Schedule
3.02(b)(v) of the related Transfer Agreement), and, immediately upon
the transfer thereof, the Indians Club Trust had good and marketable
title to all such Rights and Revenues, free and clear of all Liens
(other than the Lien of this Agreement or the MLB Pledge and Security
Agreement or any Lien under any Transaction Document or the Liens, if
any, referred to in Schedule 3.02(b)(v) of the related Transfer
Agreement); and the transfer was perfected under the UCC.
(vi) LAWFUL ASSIGNMENT. None of the Participating Club's
Rights or Revenues is subject to the laws of any jurisdiction under
which the transfer and assignment of such Rights or Revenues under the
Transfer Agreement, the Club Trust Credit Agreement, the MLB Credit
Agreement, the MLB Pledge and Security Agreement or this Agreement was
or is unlawful, void or voidable.
(vii) ALL FILINGS MADE. All filings (including UCC filings)
necessary in any jurisdiction to give the Indians Club Trust a first
perfected ownership interest in the Rights and Revenues have been made.
(b) LOCATION OF OFFICES AND BUSINESS. As of the date hereof
(and, except as noted on Schedule A, for the four months immediately preceding
the date hereof), each of the Club Trust's, the MLB Trust's, the Commissioner's
and MLB Properties' chief executive office and chief place of business is as
shown on Schedule A and each of the Indians Club Trust, the MLB Trust, the
Commissioner and MLB Properties has no executive offices or places of business
other than those listed on Schedule A.
(c) PRIORITY. The Club Trust Collateral and every part thereof
is and will be free and clear of all liens, charges, excises, claims, security
interests, mortgages or other encumbrances (including, without limitation,
statutory liens) of every kind, nature and description, whether voluntary or
involuntary, on the use thereof, except for (i) the security Interest pursuant
to this Agreement, which interest pursuant to the MLB Pledge and Security
Agreement will be assigned to the Administrative Agent, (ii) the security
interest of the Administrative Agent, (iii) any lien, charge, excise, claim,
security interest, mortgage or other encumbrance and licenses permitted under
Section 5.02(b) of the Club Trust Credit Agreement (the items set forth in
clauses (i), (ii) and (iii) being, collectively, the "Permitted Liens") and (iv)
the Liens, if any, referred to in Schedule 3.02(b)(v) of the related Transfer
Agreement. The Indians Club Trust at the direction of the MLB Trust will warrant
and defend the Club Trust Collateral against any claims and demands (other than
the Permitted Liens) of all persons at any time claiming the same or any
interest in the Club Trust Collateral adverse to the MLB Trust, the
Administrative Agent or any Bank.
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(d) PAYMENT OF TAXES AND CHARGES. The Indians Club Trust will
pay promptly when due all taxes, assessments and governmental charges and levies
upon or against the Club Trust Collateral, in each case before the same become
delinquent and before penalties accrue thereon, unless and to the extent the
same are being contested in good faith by appropriate proceedings.
(e) PRESERVATION OF THE COLLATERAL. The Indians Club Trust
will not waste or destroy the Collateral or any part thereof and will not be
negligent in the care or use of any Collateral.
(f) DISPOSITION. The Indians Club Trust will not sell or
otherwise dispose of any portion of, or rights or interests in, the Club Trust
Collateral, except with the prior written consent of the MLB Trust, except for
(i) distributions to its beneficial owners and (ii) payments to the Club Trustee
pursuant to Article V and Article VIII of the Club Trust Agreement,
respectively.
(g) INSPECTION. The Indians Club Trust will allow, at all
times the MLB Trust, the Administrative Agent, the Agent Banks, any Bank or
their respective representatives free access to and right of inspection of the
Club Trust Collateral; PROVIDED, HOWEVER, that, prior to any Club Trust Event of
Default or event which, with notice, the lapse of time or both, would result in
a Club Trust Event of Default hereunder, any such access or inspection shall
only be allowed during each party's normal business hours, as appropriate.
(h) OTHER FILING; PERFECTION OF SECURITY INTEREST. The Indians
Club Trust represents and warrants that (except as may be set forth on Schedule
3.04(b)(v) of the related Transfer Agreement) no filings which may be required
to be recorded or filed in order to perfect a security interest (other than any
which may be recorded in connection with or as contemplated by the Transaction
Documents) covering any of the Club Trust Collateral are on file in any public
office. The Indians Club Trust represents that this Agreement creates a valid
security interest in the Club Trust Collateral securing payment and performance
of the Club Trust Secured Obligations and, without duplication and subject to
the restrictions on cross-collateralization contained in the Transaction
Documents (including Section 2.12(d) of the Club Trust Credit Agreement), the
Secured Obligations attributable to the Indians Club Trust and that all filings
and other actions necessary to perfect such security interest have been taken;
PROVIDED, HOWEVER, that with respect to perfection, no representation or
warranty is made with respect to Club Trust Collateral requiring possession
thereof to perfect a security interest therein. The Indians Club Trust agrees to
execute and deliver to each of the MLB Trust and the Administrative Agent such
further agreements and assignments or other instruments and to do all such other
things as either of them may reasonably deem necessary or appropriate to assure
to either of them the security interest hereunder or under the MLB Pledge and
Security Agreement, respectively, including such financing statement or
statements or amendments thereof or supplements thereto or other instruments as
either of them may from time to time
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reasonably require in order to comply with the UCC. The Indians Club Trust
hereby agrees that a carbon, photographic or other reproduction of this
Agreement or any such financing statement is sufficient for filing as a
financing statement by the MLB Trust or the Administrative Agent without notice
thereof to it or any Participating Club wherever the MLB Trust or the
Administrative Agent in its sole discretion desires to file the same. In the
event that for any reason the law of any jurisdiction other than New York and/or
Delaware becomes or is applicable to the Club Trust Collateral or any part
thereof, or to any of the Club Trust Secured Obligations or, without duplication
and subject to the restrictions on cross-collateralization contained in the
Transaction Documents (including Section 2.12(d) of the Club Trust Credit
Agreement), the Secured Obligations attributable to the Indians Club Trust
agrees to execute and deliver to each of the MLB Trust and the Administrative
Agent such instruments and to do all such other things as either of them in Its
sole discretion reasonably deems necessary or appropriate to preserve, protect
and enforce the ownership interest of the Indians Club Trust in the Club Trust
Collateral and the security interest of the MLB Trust and the Administrative
Agent therein under the law of such other jurisdiction. If any Club Trust
Collateral is in the possession or control of (x) any of the Indians Club
Trust's agents or (y) its related Participating Club and either the MLB Trust or
the Administrative Agent so requests, the Indians Club Trust agrees to, and
agrees to cause its related Participating Club to, notify such agents in writing
of the MLB Trust's and the Administrative Agent's security interest therein and,
upon the request of either of them, instruct them to hold all such Club Trust
Collateral for their account and subject to instructions. The Indians Club Trust
agrees to xxxx its books and records to subject its ownership interest in the
Club Trust Collateral (other than the Club Trust Note), as the same is
encumbered by the security interest of the MLB Trust and the Administrative
Agent.
(i) ADVANCES BY SECURED PARTIES. On failure of the Indians
Club Trust or the Commissioner or MLB Properties on behalf of the Indians Club
Trust to perform any of the covenants and agreements contained in the
Transaction Documents, the MLB Trust may, at its option, perform the same and in
so doing may expend such sums as the MLB Trust may reasonably deem advisable in
the performance thereof, including, without limitation, the payment of any
taxes, liens and encumbrances, expenditures made in defending against any
adverse claim and all other expenditures which the MLB Trust may be compelled to
make by operation of law or which the MLB Trust may make by agreement of
otherwise for the protection of the security hereof. All such sums and amounts
so expended shall be repayable by the Indians Club Trust immediately without
notice or demand, shall constitute additional Club Trust Secured Obligations and
shall bear interest from the date said amounts are expended at the rate per
annum provided in Section 2.06(c) Of the Club Trust Credit Agreement (such rate
per annum as so determined being hereinafter referred to as the "Default Rate").
No such performance of any covenant or agreement by the MLB Trust on behalf of
the Indians Club Trust, the Commissioner or MLB Properties, and no such advance
or expenditure therefor, shall relieve the Indians Club Trust of any default
under the terms of this Agreement. The MLB Trust, in making any Payment hereby
authorized, may do so according to any xxxx, statement or estimate
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procured from the appropriate public office or holder of the claim to be
discharged without inquiry into the accuracy of such xxxx, statement or estimate
or into the validity of any tax assessment, sale, forfeiture, tax lien, title or
claim. The MLB Trust, in performing any act hereunder, shall be the judge in its
reasonable discretion of whether the Indians Club Trust, Commissioner or MLB
Properties is required to perform the same under the terms of this Agreement or
any Transaction Document. Subject to Section 2.12 of the Club Trust Credit
Agreement, the Club Trust Credit Agreement Administrative Agent is authorized to
charge the collection Account and the Debt Service Account allocable to the
defaulting Club Trust for amounts paid or expended as described above pursuant
to Section 7 of the MLB Pledge and Security Agreement.
4. SPECIAL PROVISIONS REGARDING RIGHTS AND REVENUES: (a) CHIEF
EXECUTIVE OFFICE AND LOCATION OF COLLATERAL. The Indians Club Trust will not (i)
maintain a place of business at which any material portion of its assets or
operations is located or conducted or an executive office at a location other
than that specified on Schedule A without first providing to each of the MLB
trust and the Administrative Agent, 30 days' prior written notice of its intent
to do so; (ii) establish or maintain an executive office or place of business at
which any material portion of the Club Trust Collateral is located outside of
the United States of America or otherwise permit any material portion of the
Club Trust Collateral to be located outside of the United States of America
(except as the Administrative Agent shall prior to any such time expressly agree
in writing); or (iii) keep, maintain or permit any material portion of the Club
Trust Collateral to be kept at locations other than as shown on Schedule A
hereto without first providing to each of the MLB Trust and the Administrative
Agent 30 days' prior written notice.
(b) CHIEF EXECUTIVE OFFICE. The Indians Club Trust will keep
all its books and records relating to the Collateral (including the Rights and
Revenues) only at its chief executive office, as specified on Schedule A.
Further, the Indians Club Trust will promptly inform the MLB Trust and the
Administrative Agent of any change in the identity or location of any Rights
and/or Revenues which might require new filings or other action to assure
continued perfection of the interests granted hereby.
5. SPECIAL PROVISIONS REGARDING CERTAIN CLUB TRUST COLLATERAL,
PLEDGED COLLATERAL. (a) DELIVERY. The Indians Club Trust from time to time shall
deliver to the MLB Trust (who will deliver the same to the Administrative Agent
pursuant to the MLB Pledge and Security Agreement) any Club Trust Collateral
requested to be delivered by the MLB Trust or the Administrative Agent and, as
appropriate, such collateral shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to the MLB Trust and the
Administrative Agent.
(b) PLEDGED COLLATERAL OBLIGATIONS. Each of the MLB Trust and
the Administrative Agent shall have no duty as to the collection or protection
of the Pledged Collateral attributable to the Indians Club Trust or any income
therefrom or as to the
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preservation of any rights pertaining thereto, beyond the safe custody of any
thereof actually in its possession. To the extent permitted by law, the Indians
Club Trust releases the MLB Trust and the Administrative Agent from any claims,
causes of action and demands at any time arising out of or with respect to this
Agreement, the Pledged Collateral attributable to the Indians Club Trust and/or
any actions taken or omitted to be taken by either of them with respect thereto,
and each of the Indians Club Trust and its related participating Club through
the MLB Trust hereby agree to hold each of the MLB Trust and the Administrative
Agent harmless from and with respect to any and all such claims, causes of
action and demands other than those resulting from the gross negligence, willful
misconduct or unlawful conduct of the MLB Trust and the Administrative Agent.
6. SPECIAL PROVISIONS REGARDING CLUB TRUST ASSIGNED DOCUMENTS.
(a) INDIANS CLUB TRUST REMAINS OBLIGATED. The assignment and security interest
Granted to the MLB Trust in the Assigned Documents attributable to the Indians
Club Trust (including the Transfer Agreement, the Club Trust Note and the Club
Trust Credit Agreement) pursuant to Section 2 hereof shall not relieve the
Indians Club Trust from the performance of any term, covenant, condition or
agreement on the Indians Club Trust's part to be performed or observed under or
in respect of the Assigned Documents attributable to the Indians Club Trust or
from any liability to any Person under or in respect of the Assigned Documents
or impose any obligation on either of the MLB Trust or the Administrative Agent
to perform or observe any such term, covenant, condition or agreement on the
Indians Club Trust's part to be so performed or observed or impose any liability
on either of the MLB Trust or the Administrative Agent for any act or omission
on the part of the Indians Club Trust relative thereto or for any breach of any
representation or warranty on the part of the Indians Club Trust contained in
this Agreement or the Assigned Documents attributable to the Indians Club Trust
or made in connection herewith or therewith; and the Indians Club Trust hereby
agrees to indemnify and hold harmless each of the MLB Trust and the
Administrative Agent from and against any and all losses, liabilities (including
liabilities for penalties), claims, demands, actions, suits, judgments, costs
and expenses arising out of or resulting from the assignment and security
interest Granted pursuant to this Agreement by Virtue of any act or omission on
the part of the Indians Club Trust, including the costs, expenses and
disbursements (including reasonable attorneys' fees and expenses) incurred by
either of the MLB Trust or the Administrative Agent in enforcing this Agreement
and the obligations of any Person under or in respect of the Assigned Documents
attributable to the Indians Club Trust.
(b) AMENDMENT OF ASSIGNED DOCUMENTS; WAIVERS. Without
intending in any manner to derogate from the absolute nature of the assignment
Granted to the MLB Trust by Section 2 hereof or the rights of the MLB Trust
hereunder, the Indians Club Trust agrees that it will not, without the prior
written consent of the Administrative Agent, amend, modify, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination or surrender of, the Assigned
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Documents attributable to it or waive timely performance or observance by any
Person of such Person's obligations, or any default on the part of such Person,
under or in respect of the Assigned Documents. If any such amendment,
modification, supplement or waiver shall be so consented to by the
Administrative Agent, the Indians Club Trust agrees, promptly following a
request by the Administrative Agent to do so, to execute and deliver, in its own
name and at its own expense, such agreements, instruments, consents and other
documents as the Administrative Agent may deem necessary or appropriate in the
circumstances.
(c) NOTICE OF DEFAULT UNDER ASSIGNED DOCUMENTS. The Indians
Club Trust agrees at its own expense, to give each of the MLB Trust and the
Administrative Agent prompt written notice of each default on the part of any
Person in performing such prompt Person's obligations under or in respect of the
Assigned Documents attributable to the Indians Club Trust coming to the Indians
Club Trust's attention.
(d) CUSTODY OF DOCUMENTS. Simultaneously with the execution
and delivery of this Agreement, the Indians Club Trust is delivering to the MLB
Trust a counterpart of each Assigned Document attributable to it (which
documents the MLB Trust will in turn deliver to the Administrative Agent
pursuant to the MLB Pledge and Security Agreement), which at all times shall be
retained in the custody and possession of the MLB Trust or Administrative Agent
until the termination of this Agreement. In addition, the MLB Trustee shall
receive and retain (or deliver to the Administrative Agent pursuant to the MLB
Pledge and Security Agreement) a counterpart of any amendment, modification,
supplement or waiver made of or to any of such Assigned Documents and each other
related instrument, each of which counterparts shall be serially numbered.
7. SPECIAL PROVISIONS REGARDING COLLECTION ACCOUNT AND DEBT
SERVICE ACCOUNT. In addition to any other consent or agreement set forth herein,
the Indians Club Trust hereby consents to each of the provisions of Section 7 of
the MLB Pledge and Security Agreement with respect to each of the Collection
Account and the Debt Service Account, including the provisions with respect to
(i) the establishment of such accounts, (ii) the investment of amounts on
deposit in such accounts in Eligible Investments, (iii) the appointment of the
Administrative Agent as the attorney for the Indians Club Trust for the purpose
of making any withdrawal or ordering the transfer of funds on deposit in such
accounts pursuant to the terms of the MLB Pledge and Security Agreement and (iv)
the payment from amounts on deposit in such accounts of Club Trust Secured
Obligations and, without duplication and subject to the restrictions on
cross-collateralization contained in the Transaction Documents (including
Section 2.12(d) of the Club Trust Credit Agreement, Secured Obligations
attributable to such Indians Club Trust).
8. POWER OF ATTORNEY. In addition to any other powers of
attorney contained herein or in any other Transaction Documents, the Indians
Club Trust appoints the MLB Trust, its nominee or any other person whom the MLB
Trust may designate as its attorney-in-fact, with full power to endorse its name
on any checks, notes, acceptances, money orders, drafts or other forms of
payment or security that may come into the MLB Trust's possession, to sign its
name on claims, notices of assignment and on public records and to do all things
necessary to carry out this Agreement (including to effect the valid
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assignment of the Assigned Documents attributable to the Indians Club Trust to
the MLB Trust in accordance with the provisions hereof). To the extent permitted
by applicable law, the Indians Club Trust hereby ratifies and approves all acts
of any such attorney and agrees that neither the MLB Trust nor any such attorney
will be liable for any acts or omissions or for any error of judgment or mistake
of fact or law other than such party's gross negligence, willful misconduct or
unlawful misconduct. The foregoing power of attorney, being coupled with an
interest, is irrevocable until such time as this Agreement shall terminate. The
MLB Trust may file one or more financing statements disclosing its security
interest in any or all of the Club Trust Collateral without any or all of the
Club Trust Collateral with any of the Indians Club Trust's or the Participating
Clubs' signatures appearing thereon. In addition, the Indians Club Trust hereby
grants the Administrative Agent, its nominee or any other person whom it may
designate as attorney-in-fact a power of attorney (a) to execute any financing
statement, or amendments and supplements to financing statements, on behalf of
the Indians Club Trust without notice thereof to the Indians Club Trust, which
power of attorney is coupled with an interest and is irrevocable until such time
as this Agreement shall terminate and (b) to take any of the above-mentioned
actions that otherwise may be performed by the MLB Trust. To the extent
permitted by applicable law, the Indians Club Trust hereby ratifies and approves
all acts of the Administrative Agent and any such attorney and agrees that
neither the Administrative Agent nor any such attorney will be liable for any
acts or omissions nor for any error of judgment or mistake of fact or law other
than such party's gross negligence, willful misconduct or unlawful misconduct.
9. REMEDIES UPON CLUB TRUST EVENT OF DEFAULT. (a) GENERAL
REMEDIES. Subject to Section 9(c), upon the occurrence and during the
continuation of any Club Trust Event of Default the MLB Trust shall have, in
addition to all other rights provided herein or by law, the rights and remedies
of a secured party under the UCC (regardless of whether the UCC is the law of
the jurisdiction where the rights or remedies are asserted and regardless of
whether the UCC applies to the affected Club Trust Collateral or portion
thereto, and further the MLB Trust may with the prior consent of and shall at
the direction of the Administrative Agent (itself acting with the consent or at
the direction of all the Banks), without demand and without advertisement,
notice, hearing or process of law, all of which the Indians Club Trust (on its
own behalf and on behalf of its Participant Club) hereby waives, to the extent
permitted by law, at any time or times, sell and deliver Club Trust Collateral
held by or for it at public or private sale, for cash, upon credit or otherwise,
at such prices and upon such terms as the MLB Trust deems advisable, in its sole
discretion; provided that said disposition, complies with any and all mandatory
legal requirements. In addition to all other sums due the MLB Trust, the Indians
Club Trust shall pay the MLB Trust all reasonable costs and expenses incurred by
the MLB Trust, including reasonable attorneys' fees and court costs, in
obtaining or liquidating the Club Trust Collateral, in enforcing payment of the
Club Trust Secured Obligations and, without duplication and subject to the
restriction on cross-collateralization contained in the Transaction Documents
(including Section 2.12(d) of the Club Trust Credit Agreement), the Secured
Obligations attributable to such Club Trust or in the prosecution or defense of
any
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action or proceeding by or against the MLB Trust, the Administrative Agent, the
Agent Section or Banks, any Bank, the Club Trusts or the Participating Clubs
concerning any matter arising out of or connected with this Agreement, the Club
Trust Collateral or the Club Trust Secured Obligations, including, without
limitation, any of the foregoing arising in, arising under or related to a case
under the United States Bankruptcy Code. To the extent the rights of notice
cannot be legally waived hereunder, the Indians Club Trust agrees that any
requirement of reasonable notice shall be met if such notice is personally
served on or mailed, postage prepaid, to the Indians Club Trust in accordance
with Section 12(b) hereof at least 10 days before the time of sale or other
event giving rise to the requirement of such notice. The MLB Trust shall not be
obligated to make any sale or other disposition of the Club Trust Collateral
regardless of notice having been given. To the extent permitted by law, the MLB
Trust, the Administrative Agent or any Bank may be the purchaser at any such
sale. To the extent permitted by applicable law, the Indians Club Trust hereby
waives all its rights of redemption from any such sale. Subject to the
provisions of applicable law, the MLB Trust may postpone or cause the
postponement of the sale of all or any portion of the Club Trust Collateral by
announcement at the time and place of such sale, and such sale may, without
further notice, to the extent permitted by law, be made at the time and place to
which the sale was postponed or the MLB Trust may further postpone such sale by
announcement made at such time and place.
(b) NONEXCLUSIVE NATURE OF REMEDIES. Subject to Section 9(c),
failure by the MLB Trust to exercise any right, remedy or option under this
Agreement or any other Transaction Document or provided by law, or delay by the
MLB Trust in exercising the same, shall not operate as a waiver; no waiver
hereunder shall be effective unless it is in writing, signed by the party
against whom such waiver is sought to be enforced and then only to the extent
specifically stated, which in the case of the MLB Trust shall only be granted as
provided in Section 12(a) hereof. To the extent permitted by law, neither the
MLB Trust nor any party acting as attorney for the MLB Trust, shall be liable
hereunder for any acts or omissions or for any error of judgment or mistake of
fact or law other than such party's gross negligence, willful misconduct or
unlawful conduct hereunder. The rights and remedies of the MLB Trust under this
Agreement shall be cumulative and not exclusive of any other right or remedy
which the MLB Trust may have.
(c) SALE OF RIGHTS AND REMEDIES. Notwithstanding any other
provision of this Section 9 or any provision of the UCC which conflicts with
this Section 9(c), that portion of the Club Trust Collateral consisting of the
Indians Club Trust's Rights and Revenues shall be permitted to be sold following
a Club Trust Event of Default ONLY subject to the provisions of this Section
9(c). The Rights and Revenues of the Indians Club Trust may be sold only for a
period of time sufficient for the purchaser thereof to recover an amount equal
to the sum of (i) such Club Trust's Secured Obligations and, without duplication
and subject to the restrictions on cross-collateralization contained in the
Transaction Documents (including Section 2.12(d) of the Club Trust Credit
Agreement), the Secured obligations attributable to such Club Trust and (ii) a
per annum rate of return on the sum set forth in clause (i) equal to the Default
Rate. At the point in time in which the
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purchaser of such Rights and Revenues shall have received the amount to be paid
to it pursuant to the immediately preceding sentence, such Rights and Revenues
shall automatically revert to the Indians Club Trust. In connection with any
sale of such Rights and Revenues, the MLB Trust shall sell such Rights and
Revenues pursuant to an agreement, which among other things, shall (A) include a
provision consistent with this Section 9(c) and (B) contain a provision pursuant
to which the purchaser of such Rights and Revenues acknowledges and agrees that
its rights to receive payments from collections with respect to the Rights and
Revenues is subject to the provisions of Section 7(d) of the MLB Pledge and
Security Agreement (ie., the Commissioner shall be entitled to receive payments
with respect to a pro rata portion of Pension Contributions and Commissioner
Expenses (subject to the limitations set forth in Section 7(d) of the MLB Pledge
and Security Agreement) from such collections prior to any payments therefrom to
the purchaser of such Rights and Revenues).
(d) ADMINISTRATIVE AGENT ENFORCEMENT. In furtherance of the
provisions of Section 2(b), the Indians Club Trust acknowledges and agrees that,
pursuant to the provisions of the MLB Pledge and Security Agreement, the
Administrative Agent shall have the right to enforce and otherwise enjoy the
benefits of this Section 9 and each of provisions releasing the MLB Trust from
liability shall apply to the Administrative Agent and the Banks to the extent
that the same would exculpate the MLB Trust from liability; PROVIDED, HOWEVER,
that it is understood and agreed that the Administrative Agent shall not sell
the Club Trust Collateral or any portion thereof, unless it shall have obtained
the prior written consent of all the Banks to such sale or any such sale shall
be at the written direction of all the Banks.
10. APPLICATION OF PROCEEDS. The proceeds of the Club Trust
Collateral or a portion at any time received by the MLB Trust upon the
occurrence and during the continuation of any Club Trust Event of Default
hereunder shall, when received by the MLB Trust (or the Administrative Agent) in
cash or its equivalent, be deposited in the Collection Account and applied by
the Administrative Agent, subject to Section 2.12 of each of the Club Trust
Credit Agreement and the MLB Credit Agreement, in reduction of the Club Trust
Secured Obligations and, without duplication and subject to the restrictions on
cross- collateralization contained in the Transaction Documents (including
Section 2.12(d) of the Club Trust Credit Agreement), the Secured Obligations
attributable to such Club Trust as provided for in the Club Trust Credit
Agreement and the MLB Credit Agreement, respectively, and Section 7(c) of the
MLB Pledge and Security Agreement. The Indians Club Trust shall remain liable to
the MLB Trust for any deficiency. However, none of the related Participating
Club or the MLB Trust, as beneficial owners of the Indians Club Trust, shall
have any liability with respect to any deficiency; PROVIDED, HOWEVER, that the
foregoing provisions shall not relieve the Indians Club Trust's related
Participating Club of any of its obligations to it under the Transfer Agreement.
11. CONTINUING AGREEMENT. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Club
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Trust Secured Obligations and, without duplication and subject to the
restrictions on cross- collateralization contained in the Transaction Documents
(including Section 2.12(d) of the Club Trust Credit Agreement), all Secured
Obligations attributable to such Club Trust arising prior to the time of the
satisfaction of such Club Trust Secured Obligations have been fully paid and
satisfied and the Indians Club Trust shall have caused the related participating
Club to deliver a letter, in form and substance satisfactory to the
Administrative Agent, on behalf of the Banks, that provides for the continuation
for so long as there are any outstanding Secured Obligations payable to the
Banks (other than any Secured Obligations which arise subsequent to the Final
Payment Date) of (i) such participating Club's obligations (x) pursuant to
Section 5.02, 5.03 and 5.04 of the Transfer Agreement and (y) to play baseball,
except for business interruptions during a labor dispute or where prevented by
force majeure and (ii) such Participating Club related Club Trust's obligations
pursuant to Section 2.12(d)(iii) of each of the MLB Credit Agreement and the
Club Trust Credit Agreement; PROVIDED, HOWEVER, that if any Participating Club's
Club Trust shall have terminated in accordance with the provisions of such Club
Trust's Club Trust Agreement, then such Participating Club shall also deliver to
the Administrative Agent, on behalf of the Banks and the Commissioner, a
transfer authorization, in form and substance satisfactory to the Administrative
Agent, authorizing the Commissioner, for as long as there are any outstanding
Secured Obligations payable to the Banks (other than any Secured Obligations
which arise subsequent to the Final Payment Date as in effect as of the date
hereof) to transfer from the Central Fund Custody Account to the Collection
Account when and if such Participating Club has any obligation to make any
payment to the Banks pursuant to Section 2.12(d)(iii) of the MLB Credit
Agreement and the Club Trust Credit Agreement amounts sufficient to satisfy such
obligations; PROVIDED, FURTHER, that if any Participating Club with a related
Club Trust which has fully paid and satisfied its Club Trust Secured Obligations
and which has complied with the provisions of this Section 11 sells all or
substantially all of its assets, stock or partnership interests while there are
any outstanding Secured Obligations payable to the Banks (other than any Secured
Obligations which arise subsequent to the Final Payment Date as in effect as of
the date hereof), then if (i) at least eight other Club Trusts and/or their
related Participating Clubs remain obligated to make payments to the Banks
pursuant to Section 2.12(d)(iii) of the MLB Credit Agreement and the Club Trust
Credit Agreement, such Participating Club and its related Club Trust shall be
released from the provisions of this Section 11 or (II) such Participating Club
posts a letter of credit for the benefit of the Administrative Agent on behalf
of the Banks in the amount of the product of (a) the highest Maximum Available
Amount as of such date, multiplied by (b) a fraction, the numerator of which is
the Maximum Available Amount that such Participating Club's related Club Trust
would have had as of such date and the denominator of which is the aggregate of
all Club Trust's Maximum Available Amounts as of such date, including such
Participating Club's related Club Trust's Maximum Available Amount, and with a
financial institution and in such form reasonably acceptable to the
Administrative Agent, the Banks agree to proceed solely against such Letter of
Credit to satisfy any obligations of such Participating Club and its related
Club Trust under Section 2.12(d)(iii) of the MLB Credit Agreement and Club Trust
Credit Agreement. Upon such termination of this Agreement, the MLB Trust shall,
upon the
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request and at the expense of the Indians Club Trust, forthwith release all its
Liens and security interests hereunder. Notwithstanding the foregoing, all
releases and indemnities provided hereunder shall survive termination of this
Agreement.
12. MISCELLANEOUS. (a) This Agreement and the provisions
hereof may be waived, amended, modified, changed, discharged or terminated only
by an instrument in writing signed by the MLB Trust and the Indians Club Trust,
which in the case of the MLB Trust shall only he provided at the direction of
the Administrative Agent. This Agreement shall create a continuing security
interest in the Club Trust Collateral and shall be binding upon the MLB Trust
and Indians Club Trusts and their successors and assigns; PROVIDED, HOWEVER,
that none of the Indians Club Trust or the MLB Trust may assign its rights or
delegate its duties hereunder without the Administrative Agent's prior written
consent. To the extent permitted by law, the Indians Club Trust (on its own
behalf and its Participating Club through the MLB Trust) hereby releases each of
the MLB Trust and the Administrative Agent from any liability for any act or
omission relating to the Club Trust Collateral or this Agreement (including
actions by the Administrative Agent as attorney in connection with purchasing
Eligible Investments pursuant to Sections 7(b) of the MLB Pledge and Security
Agreement), except for any liability arising from such party's gross negligence,
willful misconduct or unlawful conduct.
(b) All communications provided for herein shall be in
writing, except as otherwise specifically provided for hereinabove, and shall be
given in accordance with Section 8.02 of the Club Trust Credit Agreement, if to
the MLB Trust, at Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration (facsimile
number (000) 000-0000); with copies to (a) Administrative Agent, at Fleet
National Bank, Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx
X. Collar, (facsimile number (000) 000-0000 (b) Xxxxxx, Hall & Xxxxxxx, Exchange
Place, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxx, Xx., Esq. (facsimile number (000) 000-0000, (c) the Commissioner, at
The Baseball Office of the Commissioner, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
Attention: Xxxxxxx Xxxxx (facsimile number (000) 000-0000), (d) Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue of the Americas, New York, N.Y. 10019,
Attention: Xxxxxxx Xxxxxx, Esq. (facsimile number (000) 000-0000); and if to the
Indians Club Trust, at Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration (facsimile
number (302 651-1576); with copies to (a) Administrative Agent, at Fleet
National Bank, One Federal Street, Boston, Massachusetts 0221 1, Attention:
Xxxxx X. Collar, (facsimile number (000) 000-0000 (b) Xxxxxx, Hall & Xxxxxxx,
Exchange Place, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx
X. Xxxxxxx, Xx., Esq. (facsimile number (617) 248- 4000, (c) the Commissioner,
at the Baseball Office of the Commissioner, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000, Attention: Xxxxxxx Xxxxx (facsimile number (000) 000-0000), and (f) Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue of the Americas, New York, N.Y.
10019, Attention: Xxxxxxx Xxxxxx, Esq. (facsimile number (000) 000-0000).
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Notwithstanding any right that the Administrative Agent may
have to enforce this Agreement pursuant to the terms hereof or the MLB Pledge
and Security Agreement, no Bank shall have the right to institute any suit,
action or proceeding in equity or at law for the foreclosure of this Agreement,
for the execution of any trust or power hereof, for the appointment of a
receiver or for the enforcement of any other remedy under or upon this
Agreement; it being understood and intended that no one or more of the Banks
shall have any right in any manner whatsoever to affect, disturb or prejudice
any lien, security interest, assignment, pledge or other encumbrance created
pursuant to this Agreement by its or their action or to enforce any right
hereunder and that all proceedings at law or in equity shall be instituted and
maintained by the Administrative Agent in the manner provided for herein and in
the MLB Pledge and Security Agreement and for the ratable benefit of the Banks.
(d) In the event that any provision hereof shall be deemed to
be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision with respect to any jurisdiction where such law or
interpretation is operative, and the invalidity of such provision shall not
affect the validity of any remaining provisions hereof, and any and all other
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect.
(e) THIS AGREEMENT AND ALL MATTERS RELATING HERETO SHALL,
EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY APPLICABLE LAW, BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. THE INDIANS CLUB TRUST HEREBY
SUBMITS TO THE EXTENT EFFECTIVE UNDER APPLICABLE LAW TO THE JURISDICTION AND
VENUE OF THE STATE AND FEDERAL COURTS OF NEW YORK AND AGREES THAT THE MLB TRUST
MAY, AT ITS OPTION, ENFORCE ITS RIGHTS HEREUNDER IN SUCH COURTS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE INDIANS CLUB TRUST HEREBY IRREVOCABLY WAIVES
THE DEFENSE OF AN INCONVENIENT FORUM TO MAINTENANCE OF ANY ACTION OR PROCEEDING
BY THE MLB TRUST IN SUCH COURTS. THE INDIANS CLUB TRUST HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
(f) The headings in this instrument are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision hereof.
(g) This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
constituting an original, but all constituting together one and the same
instrument.
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(h) Except as to the Commissioner and Administrative Agent, on
behalf of the Banks, no third-party beneficiary rights are intended or conferred
hereunder.
(i) All rights and remedies of the MLB Trust or the
Administrative Agent hereunder are subject to such limitations as may be imposed
by applicable law.
13. LIMITATION OF LIABILITY. It is expressly understood and agreed by
the parties hereto that (a) this Agreement is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as trustee
of the MLB Trust under the MLB Trust Agreement and solely as trustee of the
Indians Club Trust under its Club Trust Agreement, in the exercise of the powers
and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the MLB Trust or Indians
Club Trust, as the case may be, is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose for binding only the MLB Trust or the Indians
Club Trust, as the case may be, (c) except as Wilmington Trust Company shall
otherwise expressly agree, nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the Facilitating Agent, the Agent
Banks, the Administrative Agent and the Banks and by any Person claiming by,
through or under any of them and (d) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expense of the MLB Trust or Indians Club Trust, as the case may be, or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the MLB Trust, as the case may be, under this
Agreement or the other Transaction Documents.
[Signature Pages Follow]
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SIGNATURE PAGE FOR CLUB TRUST PLEDGE AND SECURITY AGREEMENT
INDIANS CLUB TRUST
IN WITNESS WHEREOF, each of the MLB Trust and the Indians Club
Trust and the Administrative Agent has caused this Agreement to be duly executed
as of the date first above written.
INDIANS CLUB TRUST,
BY: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as Club
Trustee,
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Financial Services Officer
MAJOR LEAGUE BASEBALL CLUB TRUST,
BY: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
MLB Trustee,
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Financial Services Officer
FLEET NATIONAL BANK,
as Administrative Agent for the Banks,
By: /s/ Xxxxx X. Collar
---------------------------------
Xxxxx X. Collar
Vice President
