EXHIBIT 4.4
-----------
EXECUTION COPY
AMENDED AND RESTATED U.S. PLEDGE AGREEMENT
------------------------------------------
AMENDED AND RESTATED U.S. PLEDGE AGREEMENT (as amended, modified or
supplemented from time to time, this "AGREEMENT"), dated as of March 26, 2002
and amended and restated as of August 18, 2003, made by each of the undersigned
pledgors (each a "PLEDGOR" and, together with any other entity that becomes a
pledgor hereunder pursuant to Section 25 hereof, the "PLEDGORS") to DEUTSCHE
BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust Company), as
collateral agent (together with any successor collateral agent, the "PLEDGEE"),
for the benefit of the Secured Creditors (as defined below) and acknowledged and
agreed to by U.S. BANK NATIONAL ASSOCIATION, as trustee (together with any
successor trustee, the "SENIOR SECURED NOTES TRUSTEE") for the benefit of the
holders from time to time of the Senior Secured Notes (as defined below). Except
as otherwise defined herein, all capitalized terms used herein and defined in
the Credit Agreement (as defined below) shall be used herein as therein defined
(or, at any time on or after the first date when all Credit Document Obligations
(as defined below) shall have been repaid in full, all Letters of Credit have
been terminated or cash collateralized in a manner satisfactory to the
Administrative Agent and the Total Commitment under the Credit Agreement has
been terminated and thereafter for so long as no Credit Agreement is in effect,
the Credit Agreement as in effect on such date immediately prior to such
repayment and termination, provided that all determinations required to be made
to the satisfaction of the Administrative Agent and all matters required to be
acceptable to the Administrative Agent in each case as provided in any such
definition shall, after such date, instead be required to be made to the
satisfaction of the Collateral Agent or be required to be acceptable to the
Collateral Agent, as the case may be).
W I T N E S S E T H :
---------------------
WHEREAS, Scotsman Holdings, Inc. ("HOLDINGS"), Xxxxxxxx Scotsman, Inc.
(the "BORROWER"), the financial institutions from time to time party thereto
(the "LENDERS"), Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company), as Administrative Agent (together with any successor
Administrative Agent, the "ADMINISTRATIVE AGENT"), Fleet Capital Corporation and
Congress Financial Corporation, as Co-Syndication Agents, Bank of America, N.A.
and GMAC Business Credit, LLC, as Co-Documentation Agents and Deutsche Banc
Alex. Xxxxx Inc., as Sole Lead Arranger and Sole Book Manager, have entered into
a Credit Agreement, dated as of March 26, 2002 (as amended, modified, extended,
renewed, replaced, restated, supplemented or refinanced from time to time, and
including any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) all
or any portion of, the indebtedness under such agreement or any successor
agreement, whether or not with the same agent, trustee, representative, lenders
or holders, the "CREDIT AGREEMENT"), providing for the making of Loans and the
issuance of, and participation in, Letters of Credit for the account of the
Borrower as contemplated therein (the Lenders, each Issuing Lender, the
Administrative Agent and its affiliates (including without limitation Deutsche
Banc Alex. Xxxxx Inc., as Sole Lead Arranger and Sole Book Manager), the
Collateral
Agent and each other Agent (as defined in the Credit Agreement) are herein
called the "BANK CREDITORS");
WHEREAS, the Borrower may from time to time be party to one or more
interest rate agreements (including, without limitation, interest rate swaps,
caps, floors, collars, and similar agreements) (collectively, the "INTEREST RATE
AGREEMENTS") with DBTCA in its individual capacity, any Lender or an affiliate
thereof or a syndicate of financial institutions organized by DBTCA or an
affiliate of DBTCA (even if DBTCA or any such Lender ceases to be a Lender under
the Credit Agreement for any reason), and any institution that participates, and
in each case their subsequent assigns, in such Interest Rate Agreement
(collectively, the "INTEREST RATE CREDITORS", and the Interest Rate Creditors
together with the Bank Creditors, collectively, the "FIRST LIEN CREDITORS");
WHEREAS, the Pledgors (other than Holdings) and the Senior Secured
Notes Trustee have entered into an Indenture, dated as of August 18, 2003 (as
amended, modified or supplemented from time to time, the "SENIOR SECURED NOTES
INDENTURE"), providing for (i) the issuance by the Borrower of its 10% Senior
Second Secured Notes due 2008 and all Senior Secured Notes issued upon any
exchange offer as contemplated in the Senior Secured Notes Indenture (the
"SENIOR SECURED NOTES") to the holders thereof from time to time (the "SENIOR
SECURED NOTEHOLDERS" and, together with the Senior Secured Notes Trustee, the
"SECOND LIEN CREDITORS" and, together with the First Lien Creditors, the
"SECURED CREDITORS") and (ii) the guaranty by each Guarantor (as defined in the
Senior Secured Notes Indenture) and the Subordinated Guarantor (as defined in
the Senior Secured Notes Indenture) of the Borrower's obligations under the
Senior Secured Notes Indenture and the Senior Secured Notes (each such guaranty,
together with the Senior Secured Notes Indenture and the Senior Secured Notes,
are herein called the "SENIOR SECURED NOTES DOCUMENTS");
WHEREAS, pursuant to the Holdings Secured Guaranty, Holdings has
guaranteed to the First Lien Creditors the payment when due of all First Lien
Obligations of the Borrower as described therein;
WHEREAS, pursuant to the U.S. Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the First Lien Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, each Pledgor and the Collateral Agent have entered into the
U.S. Pledge Agreement, dated as of March 26, 2002 (as amended, modified or
supplemented through, but not including, the date hereof, the "ORIGINAL U.S.
PLEDGE AGREEMENT"), pursuant to which the Pledgors granted a security interest
in the Collateral for the benefit of the Secured Creditors under, and as defined
in, the Original U.S. Pledge Agreement;
WHEREAS, it was a condition precedent to the making of Loans to, and
the issuance of, and participation in, Letters of Credit for the account of the
Borrower under the Credit Agreement that each Pledgor shall have executed and
delivered to the Collateral Agent the Original U.S. Pledge Agreement;
-2-
WHEREAS, it is a condition precedent to the issuance of the Senior
Secured Notes by the Borrower under the Senior Secured Notes Indenture that each
Pledgor (other than Holdings) shall have executed and delivered this Agreement;
WHEREAS, pursuant to the Second Amendment to the Credit Agreement,
dated as of August 11, 2003, the Bank Creditors have authorized the Collateral
Agent to enter into an amendment and restatement of the Original U.S. Pledge
Agreement in the form of this Agreement to, INTER ALIA, also secure the
obligations in respect of the Senior Secured Notes Documents on the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree that the Original U.S. Pledge
Agreement shall be and hereby is amended and restated in its entirety 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, 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), reimbursement obligations under Letters of Credit, fees, costs
and indemnities) of each Pledgor to the Bank Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with, the Credit Agreement and the other Credit 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 respective 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 Credit Documents (all such obligations, liabilities and indebtedness
under this clause (i), except to the extent consisting of obligations or
indebtedness with respect to Interest Rate Agreements, being herein
collectively called the "CREDIT DOCUMENT OBLIGATIONS");
(ii) the full and prompt payment when due (whether at 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 Interest Rate Creditors under, or
with respect to each Interest Rate Agreement, whether such Interest Rate
Agreement is now in existence or hereafter arising, and the due performance
and compliance with the terms, conditions and agreements of each such
Interest Rate Agreement by such Pledgor including, in the case of Pledgors
other than the Borrower, all obligations, liabilities and indebtedness
under the Holdings Secured Guaranty and Subsidiaries Guaranty (as
applicable), in each case, in respect of the Interest Rate Agreements, and
the due
-3-
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 "INTEREST RATE OBLIGATIONS");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, indebtedness
and liabilities (including, without limitation, principal, premium and
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
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 Second Lien Creditors, whether now existing or
hereafter incurred under, arising out of, or in connection with the Senior
Secured Notes and the other Senior Secured Notes Documents to which such
Pledgor is a party (including all such obligations, indebtedness and
liabilities of such Pledgor under any guaranty constituting a Senior
Secured Notes Document) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the
Senior Secured Notes and in such other Senior Secured Notes Documents (all
such obligations, indebtedness and liabilities under this clause (iii)
being herein collectively called the "SECOND LIEN OBLIGATIONS");
(iv) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) and/or preserve its security
interest therein;
(v) 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) through (iii) above, after an Event of
Default 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;
(vi) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 11 of this Agreement; and
(vii) all amounts owing to any Agent pursuant to any of the Credit
Documents in its capacity as such;
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vii) of this Section 1 being 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) Reference to singular terms shall include the
plural and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
-4-
"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 preamble hereof.
"BANK CREDITORS" has the meaning set forth in the recitals hereto.
"BORROWER" has the meaning set forth in the recitals hereto.
"CANADIAN CORPORATION" has the meaning set forth in the definition of
"Stock".
"CERTIFICATED SECURITY" has the meaning given such term in Section
8-102(a)(4) of the UCC.
"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.
"CREDIT DOCUMENT OBLIGATIONS" has the meaning set forth in Section 1(i)
hereof.
"DBTCA" means Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company), and shall include any successor thereto. "DOMESTIC
CORPORATION" has the meaning set forth in the definition of "STOCK."
"EVENT OF DEFAULT" shall mean any Event of Default (or similar term)
under, and as defined in, the Credit Agreement or any Interest Rate Agreement
entered into with an Interest Rate Creditor and shall in any event include,
without limitation, (i) any payment default under the Credit Agreement, any
Interest Rate Agreement or any Senior Secured Notes Document (in each case after
the expiration of any applicable grace period) and (ii) at any time after the
First Lien Obligations have been paid in full, all Letters of Credit have been
terminated or cash collateralized in a manner satisfactory to the Administrative
Agent and all Commitments have been terminated, any "Event of Default" (or
similar term) under, and as defined in, the Senior Secured Notes Indenture.
"FINANCIAL ASSET" has the meaning given such term in Section
8-102(a)(9) of the UCC.
"FIRST LIEN CREDITORS" has the meaning set forth in the recitals to
this Agreement.
-5-
"FIRST LIEN OBLIGATIONS" shall mean all Credit Document Obligations and
all Interest Rate Obligations.
"HOLDINGS" has the meaning set forth in the recitals hereto.
"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.
"INTEREST RATE AGREEMENTS" has the meaning set forth in the recitals
hereto.
"INTEREST RATE OBLIGATIONS" has the meaning set forth in Section 1(ii)
hereof.
"INVESTMENT PROPERTY" has the meaning given such term in Section
9-102(a)(49) of the UCC.
"LENDERS" shall have 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.
"NON-CANADIAN FOREIGN CORPORATION" has the meaning set forth in the
definition of "Stock".
"NOTES" means all promissory notes from time to time issued to, or held
by, each Pledgor.
"OBLIGATIONS" has the meaning set forth in Section 1 hereof.
"ORIGINAL U.S. PLEDGE AGREEMENT" has the meaning set forth in the
recitals hereto.
"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.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
-6-
"PLEDGED NOTES" has the meaning set forth in Section 3.5 hereof.
"PLEDGEE" has the meaning set forth in the preamble hereof.
"PLEDGOR" has the meaning set forth in the preamble hereof.
"PROCEEDS" has the meaning given such term in Section 9-102(a)(64) of
the UCC.
"REQUIRED SECURED CREDITORS" has the meaning set forth in the U.S.
Security Agreement.
"SECOND LIEN CREDITORS" has the meaning set forth in the recitals
hereto.
"SECOND LIEN EXCLUDED COLLATERAL" has the meaning set forth in the U.S.
Security Agreement.
"SECOND LIEN OBLIGATIONS" has the meaning provided in Section 1(iii)
hereof.
"SECURED CREDITORS" has the meaning set forth in the recitals hereto.
"SECURED DEBT AGREEMENTS" has the meaning set forth in Section 5
hereof.
"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.
"SECURITY ENTITLEMENT" has the meaning given such term in Section
8-102(a)(17) of the UCC.
"SENIOR SECURED NOTEHOLDERS" has the meaning provided in the recitals
hereto.
"SENIOR SECURED NOTES" shall have the meaning set forth in the recitals
hereto.
"SENIOR SECURED NOTES DOCUMENTS" has the meaning set forth in the
recitals hereto.
"SENIOR SECURED NOTES INDENTURE" has the meaning set forth in the
recitals hereto.
"SENIOR SECURED NOTES TRUSTEE" has the meaning set forth in the
preamble hereto.
"STOCK" means (x) with respect to corporations incorporated under the
laws of the United States or any State or territory thereof (each a "DOMESTIC
CORPORATION"), all of the issued and outstanding shares of capital stock at any
time owned by any Pledgor of any Domestic Corporation, (y) with respect to
corporations incorporated or organized under the laws of Canada or any province
thereof (each a "CANADIAN CORPORATION") all of the issued outstanding shares of
capital stock at any time owned by any Pledgor of any Canadian Corporation and
(z) with respect to any Corporation which is not a Domestic Corporation or a
Canadian Corporation (each a
-7-
"NON-CANADIAN FOREIGN CORPORATION"), all of the issued outstanding shares of
capital stock at any time owned by any Pledgor of any such Non-Canadian Foreign
Corporation; provided that if, at any time, the granting of a pledge of more
than 66-2/3% of the voting capital stock of any Non-Canadian Foreign Subsidiary
(as defined in the Credit Agreement) would give rise to "deemed dividend" tax
consequences under Section 956 of the Code, then not more than 65% of the
outstanding voting capital stock) (plus 100% of the non-voting capital stock) of
such Non-Canadian Foreign Subsidiary shall be required to be pledged pursuant to
this Agreement.
"SUBSIDIARY" means, as to any Person, (i) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"TERMINATION DATE" has the meaning set forth in Section 19 hereof.
"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.
"U.S. SECURITY AGREEMENT" means the Amended and Restated U.S. Security
Agreement, dated as of March 26, 2002 and amended and restated as of August 18,
2003, by and among the Pledgee, the Pledgors and the Senior Secured Notes
Trustee, as same may be amended, modified, supplemented, amended and restated or
replaced from time to time in accordance with the terms thereof.
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 Secured Creditors, and does hereby create
(and, to the extent the following constitutes "Collateral" under, and as defined
in, the Original Pledge Agreement, does hereby reconfirm (without interruption)
its creation, grant, pledge and assignment to the Pledgee under the Original
U.S. Pledge Agreement of) 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 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 U.S. Security Agreement),
including any and all assets of
-8-
whatever type or kind deposited by such Pledgor in such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets, Investment Property, moneys,
checks, drafts, Instruments, Securities or interests therein of any type or
nature deposited or required by the Credit Agreement or 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 owned by 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 owned by 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, to the fullest extent
permitted under the terms and provisions of the documents and agreements
governing such Limited Liability Company Interests and applicable law:
(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;
(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 moneys 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 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
-9-
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 (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;
(d) all Partnership Interests owned by 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, to the fullest extent permitted under the terms and
provisions of the documents and agreements governing such Partnership Interests
and applicable law:
(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;
(D) all present and future claims, if any, of such
Pledgor against any such partnership for moneys 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 of such Pledgor in respect
of such Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Partnership Asset, to enforce or execute any
-10-
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 owned by such Pledgor from time to
time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned by such
Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained above or elsewhere
in this Agreement, (v) with respect to each Non-Canadian Foreign Subsidiary, if,
at any time, the pledge and assignment as otherwise contemplated herein of more
than 66-2/3% of the voting capital stock of such Non-Canadian Foreign Subsidiary
would give rise to "deemed dividend" tax consequences under Section 956 of the
Code, then not more 65% of the outstanding voting capital stock (plus 100% of
the non-voting capital stock) of such Non-Canadian Foreign Subsidiary shall be
required to be pledged pursuant to this Agreement, (w) the Second Lien Creditors
shall not have a security interest in, and the grant of security interests
pursuant to this Agreement for the benefit of the Second Lien Creditors shall
not extend to, any Second Lien Excluded Collateral, and with respect to the
Second Lien Creditors the term "Collateral" shall not include the Second Lien
Excluded Collateral, (x) the term "Collateral" with respect to the Second Lien
Obligations shall not include any Collateral owned by Holdings or in which
Holdings has any direct right, title or interest, and the grant or pledge of
security interests hereunder by Holdings shall be solely for the benefit of the
First Lien Creditors and shall not secure any of the Second Lien Obligations and
Holdings shall not be a Pledgor with respect to the Second Lien Obligations for
any purpose whatsoever, (y) to the extent that the granting or perfecting of any
assets or property of the Pledgors acquired after August 18, 2003 requires the
consent of a third party that has not been obtained after the Pledgors (other
than Holdings) have used commercially reasonable efforts to obtain such consent,
the Secured Lien Creditors shall not have a security interest in, and the grant
of security interest pursuant to this Agreement for the benefit of the Second
Lien Creditors shall not extend to, any such property or assets and (z) to the
extent that a security interest in favor of the Second Lien Creditors cannot be
granted or perfected in certain assets or property of the Pledgors under
applicable law, the Second Lien Creditors shall not have a security interest in,
and the grant or pledge of security interest pursuant to this Agreement for the
benefit of the Second Lien Creditors that not extend to, any such assets or
property.
-11-
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 provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the 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 deliver such Certificated Security to the Pledgee,
indorsed to the Pledgee or indorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
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 reasonable efforts to cause such issuer) to duly
authorize and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the Secured Creditors substantially in the form
of Annex H 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 originated by any other Person other than a court
of competent jurisdiction;
(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 promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply with the applicable rules
of such Clearing Corporation and (ii) to perfect the security interest of
the Pledgee under applicable law (including, in any event, under Sections
9-314(a) and (c), 9-106 and 8-106(d) of the UCC). The Pledgor further
agrees to take such actions as the Pledgee deems 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
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate or 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;
(v) with respect to any Note, physical delivery of such Note to
the Pledgee, indorsed to the Pledgee or indorsed in blank; and
(vi) with respect to cash proceeds from any of the Collateral
described in Section 3.1 hereof (except as may otherwise be provided in the
Credit Agreement or U.S.
-12-
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), each Pledgor shall take the following additional
actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of New York), 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 Form UCC-1 or other appropriate form) under the
Uniform Commercial Code as in effect in the various relevant States,
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), 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 of the UCC).
3.3. SUBSEQUENTLY ACQUIRED COLLATERAL. If any Pledgor shall acquire
(by purchase, stock dividend or similar distribution 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 respective Pledgor will
promptly thereafter take (or cause to be taken) all action with respect to such
Collateral in accordance with the procedures set forth in Section 3.2 hereof,
and will promptly thereafter deliver to the Pledgee (i) a certificate executed
by a principal executive officer of such Pledgor describing such Collateral and
certifying that the same has been duly pledged in favor of the Pledgee (for the
benefit of the Secured Creditors) hereunder and (ii) such supplements to Annexes
A through G hereto as are necessary to cause such annexes to be complete and
accurate at such time.
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".
-13-
3.6. CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE
COLLATERAL. Each Pledgor represents and warrants that on the date hereof: (i)
the jurisdiction of organization of such Pledgor, and such Pledgor's
organizational identification number (if any), is listed on Annex A hereto; (ii)
each Subsidiary of such Pledgor, and the direct ownership thereof, is listed in
Annex B hereto; (iii) the Stock (and any warrants or options to purchase Stock)
held by such Pledgor consists of the number and type of shares of the stock (or
warrants or options to purchase any stock) of the corporations as described in
Annex C hereto; (iv) such Stock constitutes that percentage of the issued and
outstanding capital stock of the issuing corporation as is set forth in Annex C
hereto; (v) the Notes held by such Pledgor consist of the promissory notes
described in Annex D hereto where such Pledgor is listed as the lender; (vi) 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; (vii) each
such Limited Liability Company Interest constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (viii) the Partnership Interests held by such Pledgor consist of
the number and type of interests of the Persons described in Annex F hereto;
(ix) each such Partnership Interest constitutes that percentage or portion of
the entire partnership interest of the Partnership as set forth in Annex F
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 B through F hereto; and (xi) on the date hereof, such Pledgor owns no
other Securities, Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent deemed necessary or desirable by the Pledgee to enable it 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 (or a Default
under Section 9.1(e) of the Credit Agreement (or, after all First Lien
Obligations have been paid in full in cash in accordance with the terms thereof,
all Commitments under the Credit Agreement have been terminated and all Letters
of Credit have been terminated or cash collateralized in a manner satisfactory
to the Administrative Agent, Section 6.01(7) or 6.01(8) of the Senior Secured
Notes Indenture)), each Pledgor shall be entitled to exercise all voting rights
attaching to any and all Collateral owned by it, and to give consents, waivers
or ratifications in respect thereof, PROVIDED that no vote shall be cast or any
consent, waiver or ratification given or any action taken which would violate,
result in breach of any covenant contained in, or be inconsistent with, any of
the terms of this Agreement, the Credit Agreement, any other Credit Document,
any Interest Rate Agreement or any Senior Secured Notes Document (collectively,
the "SECURED DEBT AGREEMENTS"), or which would have the effect of impairing the
value of the Collateral or any part thereof or the position or interests of the
Pledgee or any Secured Creditor therein. All such rights of a Pledgor to vote
and to give consents, waivers and ratifications shall cease in case an Event of
Default (or a Default under Section 9.1(e) of the Credit Agreement (or, after
all First Lien Obligations have been paid in full in cash in accordance with the
terms thereof, all Commitments under the Credit Agreement have been terminated
and all Letters of Credit have been terminated
-14-
or cash collateralized in a manner satisfactory to the Administrative Agent,
Section 6.01(7) or 6.01(8) of the Senior Secured Notes Indenture)) shall occur
and be continuing and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until an Event
of Default (or a Default under Section 9.1(e) of the Credit Agreement (or, after
all First Lien Obligations have been paid in full in cash in accordance with the
terms thereof, all Commitments under the Credit Agreement have been terminated
and all Letters of Credit have been terminated or cash collateralized in a
manner satisfactory to the Administrative Agent, Section 6.01(7) or 6.01(8) of
the Senior Secured Notes Indenture) shall have occurred and be continuing, all
cash dividends, cash distributions, cash Proceeds and other cash amounts payable
in respect of the Collateral shall be paid to the respective Pledgor. Subject to
Section 3.2 hereof, 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 the proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. Furthermore, so long as no Default
or Event of Default has occurred and is continuing the provisions of the second
sentence of this Section 6 shall not apply to dividends or distributions (except
to the extent in the form of items which would constitute Collateral pursuant to
clauses (a) through (f), inclusive, of Section 3.1) made in connection with any
dissolution of a Subsidiary of the Borrower contemplated by Section 8.1(c) of
the Credit Agreement to the extent permitted thereby and distributions (except
to the extent in the form of items which would constitute Collateral pursuant to
clauses (a) through (f), inclusive, of Section 3.1) to the Unit Subsidiary
contemplated by Section 7.18(a) of the Credit Agreement, PROVIDED that such
transactions are consummated in accordance with the applicable terms and
conditions set forth in the Credit Agreement. All dividends, distributions or
other payments which are received by the respective Pledgor contrary to the
provisions of this Section 6 or Section 7 shall be received in trust 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).
-15-
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR CERTAIN DEFAULTS.
In case an Event of Default shall have occurred and be continuing, the Pledgee
shall be entitled to exercise all of the rights, powers and remedies (whether
vested in it by this Agreement or by any other Secured Debt Agreement or by law)
for the protection and enforcement of its rights in respect of the Collateral,
including, without limitation, all the rights and remedies of a secured party
upon default under the Uniform Commercial Code of the State of New York, and the
Pledgee shall be entitled, without limitation, to exercise any or all of 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 to such 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 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 or from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; PROVIDED that at least 10 days' notice
of the time and place of any such sale shall be given to such Pledgor. The
Pledgee shall not be obligated to make 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, 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 all Secured Creditors (or certain of them) may bid for and
purchase (by bidding in Obligations or otherwise) all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any Secured Creditor shall be liable for failure to
collect or realize upon any or all of
-16-
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;
PROVIDED THAT, upon the occurrence of a Default under Section 9.1(e) of the
Credit Agreement (or, after all First Lien Obligations have been paid in full in
cash in accordance with the terms thereof, all Commitments under the Credit
Agreement have been terminated and all Letters of Credit have been terminated or
cash collateralized in a manner satisfactory to the Administrative Agent,
Section 6.01(7) or 6.01(8) of the Senior Secured Notes Indenture), the Pledgee
may exercise the rights specified in clause (i) above.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of
the Pledgee provided for in this Agreement or 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
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 Secured Creditor of all
such other rights, powers or remedies, and no failure or delay on the part of
the Pledgee or any Secured Creditor to exercise any such right, power or remedy
shall operate as a waiver thereof. Unless otherwise required by the respective
Secured Debt Agreements, no notice to or demand on any Pledgor in any case shall
entitle such Pledgor to any other or further notice or demand in similar other
circumstances or constitute a waiver of any of the rights of the Pledgee or any
Secured Creditor to any other or further action in any circumstances without
demand or notice. 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 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 or 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.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement (which for the avoidance of doubt, also shall include,
without limitation, any payment or distribution of Collateral of any Pledgor
upon any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshalling of assets of any Pledgor
in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to any Pledgor or its assets, whether voluntary or
involuntary), together with all other moneys received by the Pledgee hereunder,
shall be applied to the payment of the Obligations in the manner provided in
Section 7.4 of the U.S. Security Agreement.
-17-
(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 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 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 and hold harmless the Pledgee, each Secured Creditor that is an
indemnitee under Section 6 of Annex N to the U.S. Security Agreement and their
respective successors, assigns, employees, agents and servants (individually an
"Indemnitee", and collectively, the "INDEMNITEES") from and against any and all
claims, demands, losses, judgments and liabilities (including liabilities for
penalties) of whatsoever kind or nature, and (ii) to reimburse each Indemnitee
for all reasonable costs and expenses, including reasonable attorneys' fees, in
each case arising out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any other
Secured Debt Agreement (but excluding any claims, demands, losses, judgments and
liabilities (including liabilities for penalties) or expenses of whatsoever kind
or nature to the extent incurred or arising by reason of gross negligence or
willful misconduct of such Indemnitee). In no event shall any Indemnitee
hereunder be liable, in the absence of gross negligence or willful misconduct on
its part, for any matter or thing in connection with this Agreement other than
to account for monies or other property actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, each 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 the Notes issued under the Credit
Agreement, the termination of all Interest Rate Agreements and Letters of
Credit, the full repayment of all the outstanding Senior Secured Notes and the
payment of all other Obligations and notwithstanding the discharge thereof.
12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and refile under the UCC such financing statements, continuation
statements and other documents in such offices as the Pledgee (acting on its own
or on the instructions of the Required Lenders) may reasonably deem necessary or
appropriate and wherever required or permitted by law in order to perfect and
preserve the Pledgee's security interest in the Collateral hereunder and hereby
authorizes the Pledgee to file financing statements and amendments thereto
relative to all or any part of the Collateral without the signature of such
Pledgor where permitted by law, and agrees to do such further acts and things
and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may reasonably require or
deem advisable to carry into effect the purposes of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder or
thereunder.
-18-
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's discretion
to take any action and to execute any instrument which the Pledgee may deem
necessary or advisable to accomplish the purposes of this Agreement.
13. 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 (i) 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 the U.S. Security Agreement
(including Annex N to the U.S. Security Agreement) and (ii) to all of the other
provisions of Annex N to the U.S. Security Agreement. The Pledgee shall act
hereunder on the terms and conditions set forth herein and in the U.S. Security
Agreement (including Annex N to the U.S. Security Agreement). A successor
Pledgee, as Collateral Agent, may be appointed as, and to the extent, provided
in Section 8 of Annex N to the U.S. Security Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except in accordance
with the terms of this Agreement and the other Secured Debt Agreements).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all Collateral consisting of one or more
Securities, Partnership Interests and Limited Liability Company Interests
and that it has sufficient interest in all Collateral in which a security
interest is purported to be created hereunder for such security interest to
attach (subject, in each case, to no pledge, lien, mortgage, hypothecation,
security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement);
(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 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);
(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
-19-
Pledgor or any of their Subsidiaries) and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is
required to be obtained by such Pledgor in connection with (a) the
execution, delivery or performance of this Agreement, (b) the validity or
enforceability of this Agreement, (c) the perfection or enforceability of
the Pledgee's security 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 or articles of incorporation, certificate of formation,
operating agreement, limited liability company agreement, partnership
agreement or by-laws of such Pledgor, as applicable, 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
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;
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued, is fully paid and non-assessable and is subject to no
options to purchase or similar rights;
(vii) each of the Pledged Notes constitutes, or when executed by the
obligor thereof will constitute, the legal, valid and binding obligation of
such obligor, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law);
(viii) the pledge and collateral assignment to, and possession by,
the Pledgee of the Collateral consisting of Certificated Securities and
Pledged Notes pursuant to this Agreement creates a valid and perfected
first priority security interest in such Certificated Securities and
Pledged Notes, and the proceeds thereof for the benefit of the First Lien
Creditors, and a second priority security interest thereon for the benefit
of the Second Lien Creditors, in each case subject to no prior Lien or
encumbrance, except, with respect to the Second Lien Creditors, the first
priority Liens in favor of the First Lien Creditors granted pursuant to
this Agreement, 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 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
-20-
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which such "control"
may be obtained pursuant to Section 8-106 of the UCC.
(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 Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
16. JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE; RECORDS.
The jurisdiction of organization of each Pledgor is specified in Annex A hereto.
The chief executive office of each Pledgor is located at the address specified
in Annex G hereto. Each Pledgor will not change the jurisdiction of its
organization except to such new jurisdiction or location as such Pledgor may
establish in accordance with the last sentence of this Section 16. No Pledgor
shall establish a new jurisdiction of organization until (i) it shall have given
to the Collateral Agent not less than 15 days' prior written notice of its
intention so to do, clearly identifying such new jurisdiction of organization
and providing such other information in connection therewith as the Collateral
Agent may reasonably request, and (ii) with respect to such new jurisdiction of
organization, it shall have taken all action, satisfactory to the Collateral
Agent, to maintain the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect. Promptly after establishing a new jurisdiction of
organization in accordance with the immediately preceding sentence, the
respective Pledgor shall deliver to the Pledgee a supplement to Annex A hereto
so as to cause such Annex A to be complete and accurate.
17. 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 19 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 or this
Agreement (other than a waiver, consent or extension with respect to this
Agreement in accordance with its terms);
-21-
(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.
18. REGISTRATION, ETC. (a) If an Event of Default shall have
occurred and be continuing and any Pledgor shall have received from the Pledgee
a written request or requests that such Pledgor cause any registration,
qualification or compliance under any Federal or state securities law or laws to
be effected with respect to all or any part of the Collateral consisting of
Securities, Limited Liability Company Interests or Partnership Interests, such
Pledgor as soon as practicable and at its expense will use its best efforts to
cause such registration to be effected (and be kept effective) and will use its
best efforts to cause such qualification and compliance to be effected (and be
kept effective) as may be so requested and as would permit or facilitate the
sale and distribution of such Collateral consisting of Securities, Limited
Liability Company Interests or Partnership Interests, including, without
limitation, registration under the Securities Act of 1933, as then in effect (or
any similar statute then in effect), appropriate qualifications under applicable
blue sky or other state securities laws and appropriate compliance with any
other governmental requirements; PROVIDED, that the Pledgee shall furnish to
such Pledgor such information regarding the Pledgee as such Pledgor may request
in writing and as shall be required in connection with any such registration,
qualification or compliance. Each Pledgor will cause the Pledgee to be kept
reasonably advised in writing as to the progress of each such registration,
qualification or compliance and as to the completion thereof, will furnish to
the Pledgee such number of prospectuses, offering circulars and other documents
incident thereto as the Pledgee from time to time may reasonably request, and
will indemnify, to the extent permitted by law, the Pledgee and all other
Secured Creditors participating in the distribution of such Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests against all claims, losses, damages and liabilities caused by any
untrue statement (or alleged untrue statement) of a material fact contained
therein (or in any related registration statement, notification or the like) or
by any omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same may have been caused by an untrue statement or
omission based upon information furnished in writing to such Pledgor by the
Pledgee expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise
its right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests pursuant to Section
7, and such Collateral or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Securities Act of 1933, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral or part thereof
-22-
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 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,
may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the sale were
deferred until the registration as aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date, this
Agreement and the security interests created hereby shall automatically
terminate (provided that all indemnities set forth herein including, without
limitation, in Section 11 hereof and Section 6 of Annex N to the U.S. Security
Agreement shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement (including, without limitation, UCC termination statements and
instruments of satisfaction, discharge and/or reconveyance), and will duly
assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement, together with
any monies 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 Total Commitment under the Credit Agreement has been terminated
and all Interest Rate Agreements entered into with any Interest Rate Creditor
have been terminated (or cash collateralized to the reasonable satisfaction of
the Pledgee), no Note under the Credit Agreement is outstanding and all Loans
thereunder have been repaid in full in cash in accordance with the terms
thereof, all Letters of Credit issued under the Credit Agreement have been
terminated (or cash collateralized in a manner satisfactory to the
Administrative Agent), all Second Lien Obligations have been paid in full in
cash (or defeased or discharged) in accordance with the terms thereof and all
other Obligations then due and payable have been paid in full in accordance with
the terms thereof; PROVIDED, HOWEVER, at such time as (x) all First Lien
Obligations have been paid in full in cash in accordance with the terms thereof
and all Commitments under the Credit Agreement have been terminated and all
Letters of Credit have been terminated or cash collateralized in a manner
satisfactory to the Administrative Agent or (y) the First Lien Creditors have
released their Liens on all of the Collateral then, in either case, this
Agreement and the security interests created hereby shall terminate (provided
that all indemnities set forth herein (including, without limitation, in Section
11 hereof) and in Section 6 of Annex N to the U.S. Security Agreement shall
survive such termination) unless, in the case of preceding clause (x), any Event
of Default under the Senior
-23-
Secured Notes Indenture exists as of the date on which the First Lien
Obligations are repaid in full and terminated as described in such clause (x),
in which case the security interests created under this Agreement in favor of
the Second Lien Creditors will not be released except to the extent the
Collateral or any portion thereof was disposed of in order to repay the First
Lien Obligations (although the security interests created in favor of the Second
Lien Creditors will be released when such Event of Default and all other Events
of Default under the Senior Secured Notes Indenture cease to exist).
(b) In the event that any part of the Collateral is sold or
otherwise disposed of in connection with a sale or disposition permitted by the
Secured Debt Agreements (other than a sale or other disposition to any Pledgor
or any Subsidiary thereof) or is otherwise released with the consent of the
Required Secured Creditors and the proceeds of such sale or sales or from such
release are applied in accordance with the provisions of the respective Secured
Debt Agreements, to the extent required to be so applied, the Pledgee, at the
request and expense of the respective Pledgor, will duly assign, transfer and
deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral (and releases therefor) as is then being (or
has been) so sold or released and has not theretofore been released pursuant to
this Agreement. Furthermore, upon the release of any Guarantor from its Guaranty
in accordance with the provisions thereof, such Pledgor and the Collateral (at
such time pledged by the respective Pledgor pursuant hereto) shall be released
from this Agreement.
(c) To the extent not otherwise provided in preceding clauses (a)
and (b), the Pledgee shall without the consent of any Secured Creditor, release
all or any portion of the Collateral securing the Second Lien Obligations to the
extent provided in the Senior Secured Note Indenture.
(d) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
19(a), (b) or (c) hereof, the Pledgor shall deliver to the Pledgee a certificate
signed by a principal executive officer of such Pledgor stating that the release
of the respective Collateral is permitted pursuant to such Section 19(a), (b) or
(c).
(e) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with, or which it in good faith believes is in accordance with, this Section 19.
(f) Without limiting the foregoing provisions of this Section 19,
to the extent applicable following the qualification of the Senior Secured Notes
Indenture under the Trust Indenture Act (but only insofar as this Agreement
applies to the Second Lien Creditors), the parties hereto agree that if any
amendments to this Agreement or any other Security Document are required in
order to comply with the applicable provisions of the Trust Indenture Act, such
parties shall cooperate and act in good faith to effect such amendments as
promptly as practicable.
20. NOTICES, ETC. All notices and communications hereunder shall
be in writing and sent or delivered by mail, telegraph, telex, telecopy, cable
or overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed,
-24-
telecopied, or cabled or sent by overnight 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 Pledgee or such Pledgor, as the case may be. All such notices
and other communications shall be addressed as follows:
(a) if to any Pledgor, c/o:
Xxxxxxxx Scotsman, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) if to the Pledgee, at:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Credit Department
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Deutsche Bank Securities Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Bank Creditor other than the Pledgee, at such
address as such Bank Creditor shall have specified in the Credit Agreement;
(d) if to any Interest Rate Creditor, at such address as such
Interest Rate Creditor shall have specified in writing to each Pledgor and
the Collateral Agent;
-25-
(e) if to the Senior Secured Notes Trustee or any other Second
Lien Creditor, at:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
21. THE PLEDGEE. The Pledgee will hold, directly or indirectly in
accordance with this Agreement, all items of the Collateral at any time received
by it under this Agreement. It is expressly understood and agreed that the
obligations of the Pledgee with respect to the Collateral, interests therein and
the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in the UCC and this Agreement.
22. WAIVER; AMENDMENT. Except as contemplated in Section 25
hereof, none of the terms and conditions of this Agreement may be changed,
waived, discharged or terminated in any manner whatsoever except in accordance
with the terms of the U.S. Security Agreement.
23. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement except in accordance with the terms of the
Secured Debt Agreements. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
24. WAIVER OF JURY TRIAL. EACH PLEDGOR AND EACH SECURED CREDITOR
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the respective Secured
Debt Agreements, shall become a Pledgor hereunder by (x) executing a counterpart
of the Joinder Agreement substantially in the form of
-26-
Exhibit N to the Credit Agreement, and delivering same to the Pledgee, (y)
delivering supplements to Annexes A through G, inclusive, hereto as are
necessary to cause Annexes to be complete and accurate with respect to such
additional Pledgor on such date and (z) taking all actions 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 above to be taken to
the reasonable satisfaction of the Pledgee.
26. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
27. LIMITED OBLIGATIONS. It is the desire and intent of each
Pledgor and the Secured Creditors that this Agreement shall be enforced against
each Pledgor to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
Notwithstanding anything to the contrary contained herein, in furtherance of the
foregoing, it is noted that the obligations of each Pledgor that is a Subsidiary
of the Borrower and which has executed a guaranty of any of the Obligations
pursuant to a Secured Debt Agreement may have been limited as provided therein.
To the extent not otherwise provided in a guaranty given by a Pledgor in respect
of the Second Lien Obligations, each Pledgor, other than the Borrower
(collectively, the "second lien pledgors"), the Senior Secured Notes Trustee and
each other Second Lien Creditor hereby confirm that it is the intention of all
such Persons that the grant of the security interest hereunder by the second
lien pledgors with respect to the Second Lien Obligations and the Second Lien
Obligations of each such second lien pledgor hereunder not constitute a
fraudulent transfer or conveyance for purposes of any Bankruptcy Law (as defined
in the Senior Secured Notes Indenture), the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law
to the extent applicable to this Agreement and the Second Lien Obligations of
the second lien pledgors hereunder. To effectuate the foregoing intention, the
Senior Secured Notes Trustee, the other Second Lien Creditors and the second
lien pledgors hereby irrevocably agree that the Second Lien Obligations of the
second lien pledgors hereunder at any time shall be limited to the maximum
amount (after taking into account any guaranty of the First Lien Obligations by
the second lien pledgors) as will result in the Second Lien Obligations of the
second lien pledgors hereunder not constituting a fraudulent transfer or
conveyance.
28. 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 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.
-27-
(b) Except as provided in the last sentence of paragraph (a) of
this Section 28, 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, any
limited liability company, partnership and/or any other Person either before or
after an Event of Default shall have occurred. The Pledgee shall have only those
powers set forth herein and the Secured Creditors 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 28.
(c) The Pledgee and the other Secured Creditors 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 Creditor 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.
* * * *
-28-
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.
SCOTSMAN HOLDINGS, INC.,
as a Pledgor
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Treasurer
XXXXXXXX SCOTSMAN, INC.,
as a Pledgor
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
WILLSCOT EQUIPMENT, LLC,
as a Pledgor
By: XXXXXXXX SCOTSMAN, INC.,
as Member
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer,
Xxxxxxx Scotsman, Inc.,
Sole Member and
Chief Financial Executive,
Willscot Equipment, LLC
-23-
SPACE MASTER INTERNATIONAL, INC.,
as a Pledgor
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director and
Chief Financial Officer
and Treasurer
TRUCK & TRAILER SALES, INC.,
as a Pledgor
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director and
Chief Financial Officer
and Treasurer
EVERGREEN MOBILE COMPANY,
as a Pledgor
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director and
Chief Financial Officer
and Treasurer
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers
Trust Company), as Collateral Agent
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Director
U.S. BANK, NATIONAL ASSOCIATION,
as Senior Secured Notes Trustee for the Second
Lien Creditors
-24-
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
-25-
