EXHIBIT 4.2(d)
EXECUTION COPY
TELEX COMMUNICATIONS HOLDINGS, INC.,
TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC
TELEX COMMUNICATIONS INTERNATIONAL, LTD.
AND
TELEX COMMUNICATIONS, INC.,
(referred to herein individually as "PLEDGOR" and collectively as "PLEDGORS")
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS AGENT
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PLEDGE AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions............................................................................................ 3
1.1 Definition of Terms Used Herein Generally..................................................... 3
1.2 Definition of Certain Terms Used Herein....................................................... 3
1.3 Rules of Interpretation....................................................................... 4
2. Pledge................................................................................................. 5
2.1 Grant of Security Interest.................................................................... 5
2.2 Description of Pledged Collateral............................................................. 5
2.3 Delivery of Certificates, Instruments, Etc.................................................... 6
2.4 Registration.................................................................................. 6
2.5 Authorization to File Financing Statements.................................................... 6
3. Representations and Warranties of Pledgors............................................................. 7
3.1 Pledgor's Legal Status........................................................................ 7
3.2 Pledgor's Legal Name.......................................................................... 7
3.3 Pledgor's Locations........................................................................... 7
3.4 Authority; Binding Obligation; No Conflict.................................................... 7
3.5 Title to Collateral........................................................................... 7
3.6 Pledged Collateral............................................................................ 8
3.7 Percentage Ownership.......................................................................... 8
3.8 All of Pledgor's Interests.................................................................... 8
3.9 Due Authorization, Etc., of Stock; Not Margin Stock........................................... 8
3.10 Required Consents............................................................................. 8
3.11 Nature of Security Interest................................................................... 8
3.12 Partnership Interests......................................................................... 9
3.13 Limited Liability Company Interests........................................................... 9
3.14 Membership Interests of Parent................................................................ 9
4. Covenants of Pledgors.................................................................................. 9
4.1 Pledgor's Legal Status........................................................................ 9
4.2 Pledgor's Name................................................................................ 10
4.3 Pledgor's Organizational Number............................................................... 10
4.4 Locations..................................................................................... 10
4.5 Title to Collateral........................................................................... 10
4.6 Taxes......................................................................................... 10
4.7 Further Assurances............................................................................ 10
(i)
5. Voting Rights and Certain Payments Prior to Event of Default........................................... 11
5.1 Voting Rights and Ordinary Payments Prior to an Event of Default.............................. 11
5.2 Extraordinary Payments and Distributions...................................................... 11
5.3 Voting Rights and Ordinary Payments After an Event of Default................................. 12
6. All Payments in Trust.................................................................................. 12
7. Expenses............................................................................................... 12
8. Remedies............................................................................................... 12
8.1 Disposition Upon Default and Related Provisions............................................... 12
8.2 Agent Appointed Attorney-in-Fact.............................................................. 15
8.3 Agent's Duties of Reasonable Care............................................................. 16
8.4 Indemnification............................................................................... 16
8.5 Prior Recourse................................................................................ 17
8.6 Agent May Perform............................................................................. 17
9. Suretyship Waivers by Pledgor; Obligations Absolute.................................................... 17
10. Marshalling............................................................................................ 17
11. Proceeds of Dispositions............................................................................... 18
12. Reinstatement.......................................................................................... 18
13. Miscellaneous.......................................................................................... 18
13.1 Notices....................................................................................... 18
13.2 GOVERNING LAW; CONSENT TO JURISDICTION........................................................ 19
13.3 WAIVER OF JURY TRIAL, ETC..................................................................... 20
13.4 Counterparts; Effectiveness................................................................... 21
13.5 Headings...................................................................................... 21
13.6 No Strict Construction........................................................................ 21
13.7 Severability.................................................................................. 21
13.8 Survival of Agreement......................................................................... 21
13.9 Binding Effect; Several Agreement............................................................. 21
13.10 No Waiver; Cumulative Remedies................................................................ 22
13.11 Limitation by Law............................................................................. 22
13.12 Termination of this Agreement................................................................. 22
13.13 Advice of Counsel............................................................................. 22
13.14 Intercreditor Agreements...................................................................... 23
(ii)
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of November 19, 2003,
by and among TELEX COMMUNICATIONS, INC., a Delaware corporation ("Borrower"),
TELEX COMMUNICATIONS HOLDINGS, INC., a Delaware corporation ("Holdings"), TELEX
COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC, a Delaware limited liability company
("Parent"), TELEX COMMUNICATIONS INTERNATIONAL, LTD., a Delaware corporation
("TCI" and together with Borrower, Holdings and Parent, each referred to herein
individually as "Pledgor" and collectively as "Pledgors"), and GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation, in its capacity as Agent (in such
capacity, "Agent") for itself and for the Lenders from time to time party to the
Credit Agreement defined below ("Lenders").
WHEREAS:
A. Borrower, Holdings and Parent have entered into a Credit Agreement
dated as of the date hereof (including all annexes, exhibits and
schedules thereto, and as from time to time amended, restated,
supplemented or otherwise modified and in effect from time to time, the
"Credit Agreement") with the other persons designated as "Credit
Parties" on the signature pages thereof, the financial institutions
party thereto from time to time as Lenders, and General Electric
Capital Corporation as initial L/C Issuer, Lender and Agent, pursuant
to which, among other things, Lenders have agreed to make a certain
revolving credit facility available to Borrower upon the terms and
subject to the conditions specified in the Credit Agreement;
B. Borrower wishes to borrow certain Loans and cause certain Letters of
Credit to be issued (as such terms are defined in the Credit
Agreement);
C. Parent is a wholly-owned subsidiary of Holdings, Borrower is a wholly
owned subsidiary of Parent, TCI is a wholly-owned subsidiary of
Borrower, Pledgors engage in business transactions with one another and
Holdings and Parent will benefit from the Loans and other financial
accommodations made under the Credit Agreement;
D. Holdings, Parent and TCI have entered into a Guaranty dated as of the
date hereof (as amended, supplemented, restated or otherwise modified
and in effect from time to time), in favor of Agent, pursuant to which,
among other things, Holdings, Parent and TCI have guaranteed all
obligations of Borrower pursuant to the Credit Agreement; and
C. in order to secure all Secured Obligations (as defined below), each
Pledgor has agreed to execute and deliver to Agent a pledge agreement
in substantially the form hereof.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS
1.1 Definition of Terms Used Herein Generally
All terms used herein and defined in the NYUCC shall have the same
definitions herein as specified therein; provided, however, that if a
term is defined in Article 9 of the NYUCC differently than in another
Article of the NYUCC, the term has the meaning specified in Article 9
of the NYUCC.
1.2 Definition of Certain Terms Used Herein
As used herein, the following terms shall have the following meanings:
"Control Letter" shall have the meaning assigned to such term in
Section 2.3(a)(iii).
"event" shall have the meaning assigned to such term in Section 8.3(a).
"Extraordinary Payments" shall have the meaning assigned to such term
in Section 5.1(b).
"Indemnified Party" shall have the meaning assigned to such term in
Section 8.4.
"Lien" shall mean any security interest, mortgage, lien, encumbrance or
adverse claim, and any financing statement or similar document filed in
respect of same.
"Pledged Borrower Stock" shall mean Pledged Collateral constituting
equity interests in Borrower pledged hereunder, rights described in
Section 2.2(a)(iii) relating thereto and proceeds thereof.
"Pledged Collateral" shall have the meaning assigned to such term in
Section 2.1.
"Pledged Securities" shall have the meaning assigned to such term in
Section 2.2(b).
"Pledged Subsidiaries" shall have the meaning assigned to such term in
Section 2.2(a)(i).
"NYUCC" shall mean the Uniform Commercial Code as in effect in the
State of New York from time to time.
"Second Lien" means (i) except in the case of Pledged Borrower Stock,
the Lien on the Pledged Collateral granted by Pledgors under the
"Security Agreement" (as such term is defined in the Senior Notes
Indenture) and (ii) in the case of Pledged Borrower Stock, the Lien on
the Pledged Borrower Stock granted by Parent under the "Pledge
Agreement" (as such term is defined in the Senior Subordinated Notes
Indenture).
"Secured Obligations" means the Obligations and all liabilities,
obligations, covenants, duties, and indebtedness owing by Pledgors to
Agent under this Pledge Agreement. The term includes, without
limitation, interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding.
"Securities Act" shall have the meaning assigned to such term in
Section 8.1(d).
"Security Interests" shall have the meaning assigned to such term in
Section 7.
"UCC" means the Uniform Commercial Code as in effect in any
jurisdiction (except as otherwise contemplated in Section 3.3).
References to particular sections of Article 9 of the UCC shall be,
unless otherwise indicated, references to Revised Article 9 of the UCC
adopted and effective in certain jurisdictions on or after July 1,
2001.
1.3 Rules of Interpretation
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Unless otherwise defined herein, terms defined in the Credit Agreement
and in Annex A thereto are used herein as therein defined, and the
rules of interpretation specified in Annex A of the Credit Agreement
shall be applicable to this Pledge Agreement. References to "Sections,"
"Exhibits" and "Schedules" shall be to Sections, Exhibits and
Schedules, respectively, of this Pledge Agreement unless otherwise
specifically provided. Any of the terms defined in this Pledge
Agreement may, unless the context otherwise requires, be used in the
singular or the plural depending on the reference. All references to
statutes and related regulations shall include (unless otherwise
specifically provided herein) any amendments of same and any successor
statutes and regulations.
2. PLEDGE
2.1 Grant of Security Interest
To secure the payment or performance, as the case may be, in full of
the Secured Obligations, whether at stated maturity, by acceleration or
otherwise, each Pledgor hereby pledges to Agent, and grants to Agent a
first priority Security Interest in, all right, title and interest of
such Pledgor in, to and under the collateral described in Section 2.2
(collectively, the "Pledged Collateral").
2.2 Description of Pledged Collateral
(a) The Pledged Collateral is described as follows and on any
separate schedules at any time furnished by Pledgors to Agent
(which schedules are hereby deemed part of this Pledge
Agreement):
(i) all right, title and interest of Pledgors as holders
(whether now or in the future) in (x) shares or other
equity interests in any corporations, limited
liability companies or limited partnerships organized
under the laws of any state or district of the United
States (including, without limitation, those
corporations and limited liability companies
described on Schedule 1 hereto, but excluding the
membership interests in DRF 12000 Portland, LLC held
by Borrower and the 2,197 shares of Prudential
Financial, Inc. beneficially held by Borrower,
provided that Borrower will not enter into any other
agreement for the pledge of such shares or equity
interests or otherwise grant a Security Interest in
such shares or equity interests), or any warrants to
purchase or depositary shares or other rights in
respect of any such interests, and (y) all shares of
stock, certificates, instruments or other documents
evidencing or representing the same;
(ii) all right, title and interest of Borrower or
Borrower's Domestic Subsidiaries as holders (whether
now or in the future) in (x) shares or other equity
interests in any entity directly owned by Borrower or
a Domestic Subsidiary of Borrower that is organized
under the laws of a jurisdiction outside the United
States and described on Schedule 1 hereto (excluding
the equity interests in EVI Audio (Aust) PTY,
Limited, Saguaro Electronica, S.A. de C.V. and Telex
Communications, S.A. de C.V. held by TCI, provided
that TCI will not enter into any other agreement for
the pledge of such equity interests or otherwise
grant a Security Interest in such equity interests)
which represent (x) 65% of the Voting Stock of such
entity and (y) 100% of the Non-Voting Stock of such
entity, or any warrants to purchase or depositary
shares or other rights in respect of any such
interests, and (y) all shares of stock, certificates,
instruments or other documents evidencing or
representing the same;
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(iii) all right, title and interest of each of the Pledgors
in and to all present and future payments, proceeds,
dividends, distributions, instruments, compensation,
property, assets, interests and rights in connection
with or related to the collateral listed in clauses
(i) and (ii) above, and all monies due or to become
due and payable to each of the Pledgors in connection
with or related to such collateral or otherwise paid,
issued or distributed from time to time in respect of
or in exchange therefor, and any certificate,
instrument or other document evidencing or
representing the same (including, without limitation,
all proceeds of dissolution or liquidation); and
(iv) all proceeds of all of the foregoing, of every kind,
and all proceeds of such proceeds.
(b) The shares of stock, certificates, instruments or other
documents evidencing or representing the foregoing shall be
collectively referred to herein as the "Pledged Securities".
2.3 Delivery of Certificates, Instruments, Etc.
(a) Each Pledgor shall deliver to Agent:
(i) all original shares of stock, certificates,
instruments and other documents evidencing or
representing the Pledged Collateral owned by such
Pledgor as of the date hereof concurrently with the
execution and delivery of this Pledge Agreement,
(ii) the original shares of stock, certificates,
instruments or other documents evidencing or
representing all Pledged Collateral (other than
Pledged Collateral that this Pledge Agreement
specifically permits Pledgors to retain) within ten
(10) days after Pledgor's receipt thereof;
(iii) for each uncertificated security existing on the date
hereof and included in the Pledged Collateral, an
agreement in form and substance reasonably
satisfactory to Agent (a "Control Letter") of the
issuer thereof in which the issuer agrees, among
other things, that it will comply with instructions
originated by Agent with respect to the
uncertificated securities; and
(iv) for each uncertificated security created after the
date hereof, within 10 days following the issuance
thereof, a Control Letter.
(b) All Pledged Securities that are certificated securities shall
be in bearer form or, if in registered form, shall be issued
in the name of Agent or endorsed to Agent or in blank.
2.4 Registration
At any time and from time to time, Agent may (with written notice to
the Pledgor of such Pledged Securities promptly following such transfer
or registration) cause all or any of the Pledged Securities to be
transferred to or registered in its name or the name of its nominee or
nominees.
2.5 Authorization to File Financing Statements
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Each Pledgor hereby irrevocably authorizes Agent at any time and from
time to time to file in any jurisdiction in which the UCC has been
adopted any initial financing statements and amendments thereto that
(a) describe the Pledged Collateral, and (b) contain any other
information required by part 5 of Article 9 of the UCC for the
sufficiency or filing office acceptance of any initial financing
statement or amendment, including (i) whether such Pledgor is an
organization, the type of organization and any organizational
identification number issued to such Pledgor. Each Pledgor agrees to
furnish any such information to Agent promptly upon reasonable request.
Each Pledgor also ratifies its authorization for Agent to have filed in
any UCC jurisdiction any like initial financing statements or
amendments thereto if filed prior to the date hereof.
3. REPRESENTATIONS AND WARRANTIES OF PLEDGORS
Each Pledgor hereby represents and warrants to Agent that:
3.1 Pledgor's Legal Status
(a) Such Pledgor is an organization, as set forth in Schedule 1 hereto;
(b) such organization is of the type, and is organized in the
jurisdiction, set forth in Schedule 1 hereto; and (c) Schedule 1 hereto
sets forth such Pledgor's organizational identification number (if
any).
3.2 Pledgor's Legal Name
Such Pledgor's name as set forth in its organizational documents is
that set forth in Schedule 1 hereto and on the signature page hereof.
3.3 Pledgor's Locations
Schedule 1 hereto sets forth such Pledgor's place of business, and that
such Pledgor's place of business is located in a jurisdiction that has
adopted the UCC or whose laws generally require that the information
concerning the existence of nonpossessory security interests be made
generally available in a filing, recording or registration system as a
condition or result of the security interest obtaining priority over
the rights of a lien creditor with respect to the collateral.
3.4 Authority; Binding Obligation; No Conflict
Such Pledgor has full power and authority to execute, deliver and
perform its obligations in accordance with the terms of this Pledge
Agreement and to grant to Agent the Security Interests in the Pledged
Collateral pursuant hereto, without the consent or approval of any
other person or entity other than any consent or approval which has
been obtained and is in full force and effect. This Pledge Agreement
has been duly authorized, executed and delivered by Pledgor and is the
legally valid and binding obligation of such Pledgor, enforceable
against such Pledgor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws or equitable principles relating to or
limiting creditor's rights generally. The granting to Agent of the
Security Interest in the Pledged Collateral hereunder, the execution by
Pledgor of this Pledge Agreement and the performance by such Pledgor of
its obligations hereunder do not and will not (a) result in the
existence or imposition of any Lien nor obligate such Pledgor to create
any Lien (other than such Security Interest and the Second Lien (which
Second Lien is and shall be subject and subordinate to the Lien created
hereunder (x) as provided in the Intercreditor Agreement referred to in
clause (i) of the definition of "Intercreditor Agreements" and 12.02 of
the Senior Notes Indenture with respect
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to the Collateral, other than the Pledged Borrower Stock, subject to
the "Security Agreement" (as such term is defined in the Senior Notes
Indenture) and (y) as provided in the Intercreditor Agreement referred
to in clause (ii) of the definition of "Intercreditor Agreements" and
Section 12.2 of the Senior Subordinated Notes Indenture with respect to
the Pledged Borrower Stock subject to the "Pledge Agreement" (as such
term is defined in the Senior Subordinated Notes Indenture)) in favor
of any person or entity over all or any of its assets; (b) conflict
with any agreement, mortgage, bond or other instrument to which such
Pledgor is a party or which is binding upon such Pledgor or any of its
assets except for those conflicts that could not be reasonably expected
to have a Material Adverse Effect; (c) conflict with such Pledgor's
certificate of incorporation, operating agreement, partnership
agreement, by-laws, or other organizational or charter documents except
for those conflicts that could not be reasonably expected to have a
Material Adverse Effect; or (d) conflict with any law, regulation or
judicial order binding on such Pledgor or any of the Pledged Collateral
of such Pledgor except for those conflicts that could not be reasonably
expected to have a Material Adverse Effect.
3.5 Title to Collateral
The Pledged Collateral is owned by such Pledgor free and clear of any
Lien, except for Permitted Encumbrances. Such Pledgor has not filed or
consented to the filing of (a) any financing statement or analogous
document under the UCC or any other applicable laws covering any
Pledged Collateral or (b) any assignment in which such Pledgor assigns
any Pledged Collateral or any security agreement or similar instrument
covering any Pledged Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous
document, assignment, security agreement or similar instrument is still
in effect, except, in each case, for Permitted Encumbrances (including
pursuant to the Credit Agreement).
3.6 Pledged Collateral
Set forth on Schedule 1 hereto is a complete and accurate list and
description of all the Pledged Collateral of such Pledgor as of the
date hereof.
3.7 Percentage Ownership
The Pledged Securities of each issuer specifically identified on
Schedule 1 hereto constitute, and until this Pledge Agreement
terminates shall continue to constitute, the percentage of the
outstanding equity of each such issuer as indicated on Schedule 1
hereto.
3.8 All of Pledgor's Interests
As of the date hereof, the Pledged Collateral set forth on Schedule 1
hereto constitutes all of the equity interests of such Pledgor in such
corporations, limited liability companies, partnerships and other
entities.
3.9 Due Authorization, Etc., of Stock; Not Margin Stock
The Pledged Securities listed on Schedule 1 hereto have been duly
authorized and validly issued and are fully paid and non-assessable and
are not subject to any options to purchase or similar rights of any
person, and none of the Pledged Securities constitutes Margin Stock, as
such term is defined in Regulation U of the Board of Governors of the
Federal Reserve System.
3.10 Required Consents
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Except as may be required in connection with any disposition of any
portion of the Pledged Securities by laws affecting the offering and
sale of securities generally, no consent of any person (including,
without limitation, partners, members, shareholders or creditors of
Pledgors or of any subsidiary of Pledgors or of any issuer of Pledged
Securities) and no license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental instrumentality is required in
connection with (i) the execution, delivery, performance, validity or
enforceability of this Pledge Agreement by such Pledgor, (ii) the
perfection or maintenance of the Security Interest created hereby
(including the first priority nature of such Security Interest), or
(iii) the exercise by Agent of the rights provided for in this Pledge
Agreement.
3.11 Nature of Security Interest
Upon the delivery of the Pledged Securities or, in the case of
uncertificated securities included as Pledged Securities, a Control
Letter signed by the issuer thereof, to Agent, the pledge of the
Pledged Collateral pursuant to this Pledge Agreement creates a valid
and perfected first priority Security Interest in the Pledged
Collateral, securing the prompt and complete payment, performance and
observance of the Secured Obligations.
3.12 Partnership Interests
With respect to the grants of security interests in general partner
interests in limited partnerships contained herein, and limited partner
interests in limited partnerships contained herein, neither such grant
nor the exercise by Agent of any right or remedy contained herein
violates any provision of the limited partnership agreement of such
limited partnership and each general partner and limited partner party
thereto consents to such grants and to the exercise, during the
continuation of an Event of Default, of all rights and remedies granted
to Agent herein and the exercise by Agent or any nominee thereof of all
powers of the general partner granting such general partnership
interest, and of the limited partner granting such limited partnership
interest, and to the admission of Agent or its nominee or transferee
(at the election of Agent or such nominee or transferee) upon
foreclosure of any such general partner interest or limited partner
interest of such partnership. Borrower shall not amend or permit to be
amended the limited partnership agreement of any issuer of Pledged
Collateral that is a limited partnership other than as permitted by the
Credit Agreement, Borrower shall not permit any such limited
partnership agreement to terminate and Borrower shall perform, observe
and enforce all terms and provisions of each such limited partnership
agreement.
3.13 Limited Liability Company Interests
With respect to the grants of security interests in any membership
interest in any limited liability company contained herein, neither
such grant nor the exercise by Agent of any right or remedy contained
herein violates any provision of the limited liability company or
operating agreement of such limited liability company and Holdings or
any sole member thereof consents to such grants and to the exercise,
during the continuation of an Event of Default, of all rights and
remedies granted to Agent herein and the exercise by Agent or any
nominee thereof of all powers of the sole member granting such security
interest, and to the admission of Agent or its nominee or transferee
(at the election of Agent or such nominee or transferee) as a member of
such limited liability company upon foreclosure of any such interest.
Holdings shall not amend or permit to be amended the limited liability
company or operating agreement of any issuer of Pledged Collateral that
is a limited liability company other than as permitted by the Credit
Agreement, Holdings shall not permit any such limited liability or
company agreement to terminate and Holdings shall,
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and shall cause its Subsidiaries to, perform, observe and enforce all
terms and provisions of each such limited liability or company
agreement.
3.14 Membership Interests of Parent
The limited liability company interests of Parent are securities
governed by Article 8 of the Delaware Uniform Commercial Code.
4. COVENANTS OF PLEDGORS
4.1 Pledgor's Legal Status
Without the prior written consent of the Agent, except as permitted by
the Credit Agreement, no Pledgor shall change its type of organization,
jurisdiction of organization or other legal structure. No Pledgor shall
enter into, or consent to the entering into of, any amendment of any
limited partnership agreement or limited liability operating agreement
of any issuer of any Pledged Securities that could reasonably be
expected to have an adverse effect on the Security Interest therein or
the rights and remedies of Agent hereunder. Each Pledgor, as a limited
partner, general partner, member, manager or managing member of any
issuer of Pledged Securities hereby consents to the execution and
delivery of this Pledge Agreement, the performance by the applicable
Pledgor of its obligations hereunder and the exercise by Agent of its
rights and remedies hereunder. Except for the Liens granted hereunder
to Agent (and the Second Lien), no Pledgor shall suffer or permit any
issuer of Pledged Securities to enter into a Control Letter in favor of
any Person.
4.2 Pledgor's Name
Without providing at least thirty (30) days' prior written notice to
Agent, no Pledgor shall change its name.
4.3 Pledgor's Organizational Number
Without providing at least thirty (30) days' prior written notice to
Agent, no Pledgor shall change its organizational identification
number, if it has one. If any Pledgor does not have an organizational
identification number and later obtains one, such Pledgor shall
promptly notify Agent of such organizational identification number.
4.4 Locations
Without providing at least thirty (30) days' prior written notice to
Agent, no Pledgor shall change its principal residence, its place of
business or (if it has more than one place of business) its chief
executive office or its mailing address.
4.5 Title to Collateral
(a) Except for the Security Interests herein granted and Permitted
Encumbrances, each Pledgor shall be the owner of the Pledged Collateral
pledged by it free from any Lien, and such Pledgor, at its sole cost
and expense, shall defend the same against all claims and demands of
all persons at any time claiming the same or any interests therein
adverse to Agent; and (b) no Pledgor shall sell or otherwise dispose
of, or pledge, mortgage or create, or suffer to exist a Lien on, the
Pledged Collateral in favor of any person other than Agent except, in
each case, for Permitted
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Encumbrances and the inclusion of "proceeds" of the Pledged Collateral
under the Security Interest granted herein shall not be deemed a
consent by Agent to any sale or other disposition of any Pledged
Collateral.
4.6 Taxes
Each Pledgor shall pay promptly when due all taxes, assessments,
governmental charges and levies upon the Pledged Collateral or incurred
in connection with the Pledged Collateral or incurred in connection
with this Pledge Agreement, provided that Pledgor may contest any such
taxes in good faith so long as it maintains adequate reserves therefor.
4.7 Further Assurances
Each Pledgor will, from time to time, at its expense, promptly execute
and deliver all further instruments and documents and take all further
action that may be necessary, or that Agent may reasonably request, in
order to perfect and protect any Security Interest granted or purported
to be granted hereby or to enable Agent to exercise and enforce its
rights and remedies hereunder with respect to any Pledged Collateral.
5. VOTING RIGHTS AND CERTAIN PAYMENTS PRIOR TO EVENT OF DEFAULT
5.1 Voting Rights and Ordinary Payments Prior to an Event of Default
So long as no Event of Default shall have occurred and be continuing,
each Pledgor shall be entitled:
(a) to exercise, as it shall think fit, but in a manner consistent
with the terms hereof, the voting and consent power and other
incidental rights of ownership with respect to the Pledged
Collateral of such Pledgor, and for that purpose Agent shall
(if any Pledged Securities shall be registered in the name of
Agent or its nominee) execute or cause to be executed from
time to time, at the expense of such Pledgor, such proxies or
other instruments in favor of such Pledgor or its nominee, in
such form and for such purposes as shall be reasonably
required by such Pledgor and shall be specified in a written
request therefor, to enable it to exercise such voting power
with respect to the Pledged Securities; and
(b) except as otherwise provided in Sections 5.2 and 5.3 hereof,
to receive and retain for its own account any and all
payments, proceeds, dividends, distributions, monies,
compensation, property, assets, instruments or rights to the
extent such are permitted pursuant to the terms of the Credit
Agreement, other than (i) stock or liquidating dividends or
(ii) extraordinary dividends and dividends or other amounts
payable under or in connection with any recapitalization,
restructuring, or other non-ordinary course event (the
dividends and amounts in this clause (ii) being "Extraordinary
Payments"), paid, issued or distributed from time to time in
respect of the Pledged Collateral pledged by such Pledgor.
5.2 Extraordinary Payments and Distributions
(a) In case, upon the dissolution or liquidation (in whole or in
part) of any issuer of any Pledged Collateral pledged by any
Pledgor, any sum shall be paid or payable as a liquidating
dividend or otherwise upon or with respect to any of the
Pledged Securities
11
pledged by such Pledgor or, in the event any other
Extraordinary Payment is paid or payable, then and in any such
event, such sum shall be paid by such Pledgor over to Agent
promptly, and in any event within ten (10) days after receipt
thereof, to be held by Agent as additional collateral
hereunder.
(b) In case any dividend or distribution payable in Stock shall be
declared with respect to any of the Pledged Collateral pledged
by any Pledgor, or any shares of Stock or fractions thereof
shall be issued pursuant to any stock split involving any of
the Pledged Collateral pledged by such Pledgor, or any
distribution of capital shall be made on any of the Pledged
Collateral pledged by such Pledgor, or any shares, obligations
or other property shall be distributed upon or with respect to
the Pledged Collateral pledged by such Pledgor, in each case
pursuant to a recapitalization or reclassification of the
capital of the issuer thereof, or pursuant to the dissolution,
liquidation (in whole or in part), bankruptcy or
reorganization of such issuer, or to the merger or
consolidation of such issuer with or into another corporation,
the shares, partnership interests, membership interests,
obligations or other property so distributed shall be
delivered by such Pledgor to Agent promptly, and in any event
within ten (10) days after receipt thereof, to be held by
Agent as additional collateral hereunder subject to the terms
of this Pledge Agreement, and all of the same shall constitute
Pledged Collateral for all purposes hereof.
5.3 Voting Rights and Ordinary Payments After an Event of Default
Upon the occurrence and during the continuance of any Event of Default,
all rights of each Pledgor to exercise or refrain from exercising the
voting and consent rights and other incidental rights of ownership that
it would otherwise be entitled to exercise pursuant to Section 5.1(a)
hereof and to receive the payments, proceeds, dividends, distributions,
monies, compensation, property, assets, instruments or rights that such
Pledgor would otherwise be authorized to receive and retain pursuant to
Section 5.1(b) hereof shall cease, and thereupon Agent shall be
entitled to exercise all voting power and consent and other incidental
rights of ownership with respect to the Pledged Securities and to
receive and retain, as additional collateral hereunder, any and all
payments, proceeds, dividends, distributions, monies, compensation,
property, assets, instruments or rights at any time declared or paid
upon any of the Pledged Collateral during such an Event of Default and
otherwise to act with respect to the Pledged Collateral as outright
owner thereof.
6. ALL PAYMENTS IN TRUST
All payments, proceeds, dividends, distributions, monies, compensation,
property, assets, instruments or rights that are received by any Pledgor
contrary to the provisions of Section 5 hereof shall be received and held in
trust for the benefit of Agent, shall be segregated by such Pledgor from other
funds of such Pledgor and shall be forthwith paid over to Agent as Pledged
Collateral in the same form as so received (with any necessary endorsement).
7. EXPENSES
Each Pledgor shall, jointly and severally, pay all reasonable expenses incurred
by Agent in connection with the negotiation, execution, delivery, amendment,
waiver, renegotiation, enforcement or collection of this Pledge Agreement or the
exercise of remedies hereunder, including, without limitation, reasonable
attorney's fees, advertising costs, fees and expenses of advisors and investment
bankers and other experts. If any Pledgor fails promptly to pay any portion of
the above expenses when due or to perform any other obligation of such Pledgor
under this Pledge Agreement, Agent may, at its option, but shall not be
12
required to, pay or perform the same and charge such Pledgor for all costs and
expenses incurred therefor, and such Pledgor agrees to reimburse Agent therefor
on demand. All sums so paid or incurred by Agent for any of the foregoing, any
and all other sums for which any Pledgor may become liable hereunder and all
such costs and expenses incurred by Agent in enforcing or protecting the
Security Interests created under this Pledge Agreement (the "Security
Interests") or any of its rights or remedies under this Pledge Agreement shall
be payable by such Pledgor on demand, shall constitute Secured Obligations and
shall bear interest at the same rate of interest applicable to Revolving Credit
Advances, interest on which is based on the Index Rate at such time.
8. REMEDIES
8.1 Disposition Upon Default and Related Provisions
(a) Upon the occurrence and during the continuance of any Event of
Default, Agent or its nominee may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all rights
of voting, consent, exercise, conversion and other incidental
rights of ownership with respect to the Pledged Collateral,
including, without limitation, all rights and powers of any
Pledgor as limited or general partner of any partnership and
as sole member or managing member of any limited liability
company, in each case, that is an issuer of Pledged Securities
pledged by such Pledgor, and all of the rights and remedies of
an Agent on default under the NYUCC at that time (whether or
not applicable to the affected Pledged Collateral) and may
also, without obligation to resort to other security, at any
time and from time to time sell, resell, assign and deliver,
in its sole discretion, all or any of the Pledged Collateral,
in one or more parcels at the same or different times, and all
right, title and interest, claim and demand therein and right
of redemption thereof, on any securities exchange on which any
Pledged Collateral may be listed, or at public or private
sale, for cash, upon credit or for future delivery, and in
connection therewith Agent may grant options.
(b) If any of the Pledged Collateral is sold by Agent upon credit
or for future delivery, Agent shall not be liable for the
failure of the purchaser to purchase or pay for the same and,
in the event of any such failure, Agent may resell such
Pledged Collateral. In no event shall any Pledgor be credited
with any part of the proceeds of sale of any Pledged
Collateral until cash payment therefor has actually been
received by Agent.
(c) Agent may purchase any Pledged Collateral at any public sale
and, if any Pledged Collateral is of a type customarily sold
in a recognized market or is of the type that is the subject
of widely distributed standard price quotations, Agent may
purchase such Pledged Collateral at private sale, and in each
case may make payment therefor by any means, including,
without limitation, by release or discharge of Secured
Obligations in lieu of cash payment.
(d) Each Pledgor recognizes that Agent may be unable to effect a
public sale of all or part of the Pledged Collateral
consisting of securities by reason of certain prohibitions
contained in the Securities Act of 1933, as amended (the
"Securities Act"), or in applicable Blue Sky or other state
securities laws, as now or hereafter in effect, but may be
compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree,
among other things, to acquire such securities for their own
account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that any
such Pledged Collateral sold at any such private sale may be
sold at a price and upon other terms less favorable to the
seller than if sold at public sale. Each Pledgor
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agrees that any such private sale shall be a commercially
reasonable manner in which to dispose of all or any part of
the Pledged Collateral. Agent shall have no obligation to
delay the sale of any such securities for the period of time
necessary to permit the issuer of such securities, even if
such issuer would agree, to register such securities for
public sale under the Securities Act.
(e) No demand, advertisement or notice, all of which are hereby
expressly waived, shall be required in connection with any
sale or other disposition of any part of the Pledged
Collateral that threatens to decline speedily in value or that
is of a type customarily sold on a recognized market;
otherwise Agent shall give the applicable Pledgor at least ten
(10) days' prior notice of the time and place of any public
sale and of the time after which any private sale or other
disposition is to be made, which notice each Pledgor agrees is
commercially reasonable.
(f) Agent shall not be obligated to make any sale of Pledged
Collateral if it shall determine not to do so, regardless of
the fact that notice of sale may have been given. Agent may,
without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and
place to which the same was so adjourned.
(g) The remedies provided herein in favor of Agent shall not be
deemed exclusive, but shall be cumulative, and shall be in
addition to all other remedies in favor of Agent existing at
law or in equity.
(h) To the extent that applicable law imposes duties on Agent to
exercise remedies in a commercially reasonable manner, each
Pledgor acknowledges and agrees that it is not commercially
unreasonable for Agent (i) to advertise dispositions of
Pledged Collateral through publications or media of general
circulation; (ii) to contact other persons, whether or not in
the same business as such Pledgor, for expressions of interest
in acquiring all or any portion of the Pledged Collateral;
(iii) to hire one or more professional auctioneers to assist
in the disposition of Pledged Collateral; (iv) to dispose of
Pledged Collateral by utilizing Internet sites that provide
for the auction of assets of the types included in the Pledged
Collateral or that have the reasonable capability of doing so,
or that match buyers and sellers of assets; (v) to disclaim
disposition warranties, or (vi) to the extent deemed
appropriate by Agent, to obtain the services of brokers,
investment bankers, consultants and other professionals to
assist Agent in the disposition of any of the Pledged
Collateral. Each Pledgor acknowledges that the purpose of this
clause (h) is to provide non-exhaustive indications of what
actions or omissions by Agent would be commercially reasonable
in Agent's exercise of remedies against the Pledged Collateral
and that other actions or omissions by Agent shall not be
deemed commercially unreasonable solely on account of not
being indicated in this clause (h). Without limiting the
foregoing, nothing contained in this clause (h) shall be
construed to grant any rights to any Pledgor or to impose any
duties on Agent that would not have been granted or imposed by
this Pledge Agreement or by applicable law in the absence of
this clause (h).
(i) It is expressly agreed by each Pledgor that, anything herein
or in any other Loan Document to the contrary notwithstanding,
each Pledgor shall remain liable under each of its respective
Contractual Obligations, including the partnership agreement
or operating agreement of any issuer of Pledged Securities, to
observe and perform all the conditions
14
and obligations to be observed and performed by it thereunder.
None of Agent, any nominee thereof and any Lender shall have
any obligation or liability under any Contractual Obligation
by reason of or arising out of this Pledge Agreement or any
other Loan Document or the granting herein of a Lien thereon
or the receipt by Agent, any nominee thereof or any Lender of
any payment relating to any Contractual Obligation pursuant
hereto, nor any exercise by Agent, any nominee thereof or any
Lender of any rights of any Pledgor. None of Agent, any
nominee thereof and any Lender shall be required or obligated
in any manner to perform or fulfill any of the obligations of
any Pledgor under or pursuant to any Contractual Obligation,
or to make any payment, or to make any inquiry as to the
nature or the sufficiency of any payment received by it or the
sufficiency of any performance by any party under any
Contractual Obligation, or to present or file any claims, or
to take any action to collect or enforce any performance or
the payment of any amounts which may have been assigned to it
or to which it may be entitled at any time or times.
8.2 Agent Appointed Attorney-in-Fact
(a) To effectuate the terms and provisions hereof, each Pledgor
hereby appoints Agent as such Pledgor's attorney-in-fact for
the purpose, from and after the occurrence and during the
continuance of an Event of Default, of carrying out the
provisions of this Pledge Agreement and taking any action and
executing any instrument that Agent from time to time in
Agent's reasonable discretion may deem necessary or advisable
to accomplish the purposes of this Pledge Agreement. Without
limiting the generality of the foregoing, Agent shall, from
and after the occurrence and during the continuance of an
Event of Default, have the right and power to:
(i) receive, endorse and collect all checks and other
orders for the payment of money made payable to such
Pledgor representing any interest or dividend or
other distribution or amount payable in respect of
the Pledged Collateral or any part thereof and to
give full discharge for the same;
(ii) execute endorsements, assignments or other
instruments of conveyance or transfer with respect to
all or any of the Pledged Collateral;
(iii) exercise all rights of such Pledgor as owner of the
Pledged Collateral including, without limitation, the
right to sign any and all amendments, instruments,
certificates, proxies, and other writings necessary
or advisable to exercise all rights and privileges of
(or on behalf of) the owner of the Pledged
Collateral, including, without limitation, all
voting, consent and other incidental rights of
ownership rights with respect to the Pledged
Securities;
(iv) ask, demand, collect, xxx for, recover, compound,
receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of
the Pledged Collateral;
(v) file any claims or take any action or institute any
proceedings that Agent may deem necessary or
desirable for the collection of any of the Pledged
Collateral or otherwise to enforce the rights of
Agent with respect to any of the Pledged Collateral;
and
15
(vi) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any
of the Pledged Collateral as fully and completely as
though Agent were the absolute owner thereof for all
purposes, and to do, at Agent's option and such
Pledgor's expense, at any time or from time to time,
all acts and things that Agent deems reasonably
necessary to protect, preserve or realize upon the
Pledged Collateral.
(b) Each Pledgor hereby ratifies and approves all acts of Agent
made or taken pursuant to this Section 8.2 (provided, that no
Pledgor by virtue of such ratification, releases any claim
that Pledgor may otherwise have against Agent for any such
acts made or taken by Agent through gross negligence or
willful misconduct). Neither Agent nor any person designated
by Agent shall be liable for any acts or omissions or for any
error of judgment or mistake of fact or law, except such as
may result from Agent's gross negligence or willful
misconduct. This power, being coupled with an interest, is
irrevocable so long as this Pledge Agreement shall remain in
force.
8.3 Agent's Duties of Reasonable Care
(a) Agent shall have the duty to exercise reasonable care in the
custody and preservation of any Pledged Collateral in its
possession, which duty shall be fully satisfied if such
Pledged Collateral is accorded treatment substantially equal
to that which Agent accords its own property and, with respect
to any calls, conversions, exchanges, redemptions, offers,
tenders or similar matters relating to any such Pledged
Collateral (herein called "events"),
(i) Agent exercises reasonable care to ascertain the
occurrence and to give reasonable notice to Pledgors
of any events applicable to any Pledged Securities
that are registered and held in the name of Agent or
its nominee,
(ii) Agent gives the applicable Pledgor reasonable notice
of the occurrence of any events of which Agent has
received actual knowledge, which events are
applicable to any securities that are in bearer form
or are not registered and held in the name of Agent
or its nominee (each Pledgor agreeing to give Agent
reasonable notice of the occurrence of any events of
which such Pledgor has knowledge, which events are
applicable to any securities in the possession of
Agent), and
(iii) Agent endeavors to take such action with respect to
any of the events as any Pledgor may reasonably and
specifically request in writing in sufficient time
for such action to be evaluated and taken or, if
Agent reasonably believes that the action requested
would adversely affect the value of the Pledged
Collateral as collateral or the collection of the
Secured Obligations, or would otherwise prejudice the
interests of Agent, Agent gives reasonable notice to
such Pledgor that any such requested action will not
be taken and, if Agent makes such determination or if
such Pledgor fails to make such timely request, Agent
takes such other action as it deems advisable in the
circumstances.
(iv) Except as hereinabove specifically set forth, Agent
shall have no further obligation to ascertain the
occurrence of, or to notify any Pledgor with respect
to, any events and shall not be deemed to assume any
such further obligation as a result of the
establishment by Agent of any internal procedures
with respect to
16
any securities in its possession, nor shall Agent be
deemed to assume any other responsibility for, or
obligation or duty with respect to, any Pledged
Collateral or its use of any nature or kind, or any
matter or proceedings arising out of or relating
thereto, including, without limitation, any
obligation or duty to take any action to collect,
preserve or protect its or any Pledgor's rights in
the Pledged Collateral or against any prior parties
thereto, but the same shall be at each Pledgor's sole
risk and responsibility at all times.
(v) Each Pledgor waives any restriction or obligation
imposed on Agent under Sections 9-207(c)(1) and
9-207(c)(2) of the NYUCC.
8.4 Indemnification
Each Pledgor hereby indemnifies and holds harmless Agent, each Lender
and the respective officers, shareholders, directors, employees and
agents of each thereof (each, an "Indemnified Party") from any claims,
causes of action and demands at any time arising out of or with respect
to this Pledge Agreement, the Secured Obligations, the Pledged
Collateral and its use and/or any actions taken or omitted to be taken
by such Indemnified Party with respect thereto (except such claims,
causes of action and demands arising from the bad faith, gross
negligence or willful misconduct of such Indemnified Party) and each
Pledgor hereby agrees, jointly and severally, to hold each Indemnified
Party harmless from and with respect to any and all such claims, causes
of action and demands (except such claims, causes of action and demands
arising from the gross negligence or willful misconduct of such
Indemnified Party).
8.5 Prior Recourse
Agent's prior recourse to any Pledged Collateral shall not constitute a
condition of any demand, suit or proceeding for payment or collection
of the Secured Obligations.
8.6 Agent May Perform
If any Pledgor fails to perform any agreement contained herein, Agent
may itself perform or cause performance of such agreement, and the
expenses of Agent incurred in connection therewith shall be treated as
provided in Section 7 hereof. Agent shall use reasonable efforts to
notify Pledgor of any such performance by Agent, provided that failure
to do so shall not affect Agent's rights hereunder, including rights of
reimbursement relating to such performance.
9. SURETYSHIP WAIVERS BY PLEDGOR; OBLIGATIONS ABSOLUTE
(a) Each Pledgor waives demand, notice, protest, notice of
acceptance of this Pledge Agreement, notice of loans made,
credit extended, collateral received or delivered or other
action taken in reliance hereon and all other demands and
notices of any description thereof, all in such manner and at
such time or times as Agent may deem advisable. Agent shall
have no duty as to the collection or protection of the Pledged
Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of
any rights pertaining thereto beyond the safe custody thereof
as set forth in Section 8.3.
(b) All rights of Agent hereunder, the Security Interests and all
obligations of each Pledgor hereunder shall be absolute and
unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan
Document, any agreement with
17
respect to any of the Secured Obligations or any other
agreement or instrument relating to any of the foregoing, (b)
any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any
departure from the Credit Agreement, any other Loan Document,
or any other agreement or instrument, (c) any exchange,
release or non-perfection of any Lien on other collateral, or
any release or amendment or waiver of or consent under or
departure from or any acceptance of partial payment thereon
and or settlement, compromise or adjustment of any Secured
Obligation or of any guarantee, securing or guaranteeing all
or any of the Secured Obligations, or (d) any other
circumstance that might otherwise constitute a defense
available to, or a discharge of, such Pledgor in respect of
the Secured Obligations or this Pledge Agreement other than
the defense of payment.
10. MARSHALLING
Agent shall not be required to marshal any present or future collateral
security (including but not limited to this Pledge Agreement and the
Pledged Collateral) for, or other assurances of payment of, the Secured
Obligations or any of them or to resort to such collateral security or
other assurances of payment in any particular order, and all of its
rights hereunder and in respect of such collateral security and other
assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that it lawfully
may, each Pledgor hereby agrees that it shall not invoke any law
relating to the marshalling of collateral which might cause delay in or
impede the enforcement of Agent's rights under this Pledge Agreement or
under any other instrument creating or evidencing any of the Secured
Obligations or under which any of the Secured Obligations is
outstanding or by which any of the Secured Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it
lawfully may, Pledgor hereby irrevocably waives the benefits of all
such laws.
11. PROCEEDS OF DISPOSITIONS
After deducting all expenses payable to Agent, including, without
limitation, pursuant to Section 7, the residue of any proceeds of
collection or sale of the Secured Obligations or Collateral shall, to
the extent actually received in cash, be applied to the payment of the
remaining Secured Obligations in such order or preference as is
provided in the Credit Agreement (or, if not provided therein, as
determined by Agent), proper allowance and provision being made for any
Secured Obligations not then due or held as additional Collateral. Upon
the final payment and satisfaction in full of all of the Secured
Obligations and the termination of all commitments under the Credit
Agreement and after making any payments required by Sections
9-608(a)(1)(C) or 9-615(a)(3) of the NYUCC, any excess of any Pledged
Collateral of any Pledgor shall be returned to such Pledgor, and in any
event each Pledgor shall remain liable for any deficiency in the
payment of the Secured Obligations. Upon the Termination Date and a
release of all claims against Agent and Lenders, and so long as no
suits, actions, proceedings, or claims are pending or threatened
against any Indemnitee asserting any damages, losses or liabilities
that are indemnified liabilities hereunder, Agent shall deliver to
Pledgors termination statements and other documents necessary or
appropriate to evidence the termination of the Liens securing payment
of the Obligations.
12. REINSTATEMENT
This Pledge Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against any
Pledgor for liquidation or reorganization, should any
18
Pledgor become insolvent or make an assignment for the benefit of any
creditor or creditors or should a receiver or trustee be appointed for
all or any significant part of any Pledgor's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Secured Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the
Secured Obligations, whether as a "voidable preference," "fraudulent
conveyance," or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof,
is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.
13. MISCELLANEOUS
13.1 Notices
Any notice or other communication required shall be in writing
addressed to the respective party as set forth below and may be
personally served, telecopied, sent by overnight courier service or
U.S. mail and shall be deemed to have been given: (a) if delivered in
person, when delivered; (b) if delivered by fax, on the date of
transmission if transmitted on a Business Day before 4:00 p.m. New York
Time; (c) if delivered by overnight courier, one (1) Business Day after
delivery to the courier properly addressed; or (d) if delivered by U.S.
mail, four (4) Business Days after deposit with postage prepaid and
properly addressed.
Notices shall be addressed as follows:
(a) If to any Pledgor:
c/o TELEX COMMUNICATIONS, INC.
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: President and CEO
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to Agent:
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Telex Account Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
GENERAL ELECTRIC CAPITAL CORPORATION
Capital Funding, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Counsel
19
Corporate Financial Services - Global Sponsor Finance
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and:
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Counsel
Corporate Financial Services - Global Sponsor Finance
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
13.2 GOVERNING LAW; CONSENT TO JURISDICTION
(a) THIS PLEDGE AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES WHICH SHALL BE
DEEMED NOT TO INCLUDE SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(b) EACH PLEDGOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN NEW YORK COUNTY, STATE OF NEW
YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT'S ELECTION,
ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
PLEDGE AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE
LITIGATED IN SUCH COURTS. EACH PLEDGOR EXPRESSLY SUBMITS AND
CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH PLEDGOR
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON
PLEDGOR BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, ADDRESSED TO SUCH PLEDGOR, AT THE ADDRESS SET FORTH
IN THIS PLEDGE AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE
TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED. IN ANY
LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION
PROCEEDING RELATING TO THIS PLEDGE AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS, ALL THEN CURRENT DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF PLEDGORS OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING
AGENTS OF PLEDGORS FOR PURPOSES OF ALL APPLICABLE LAW OR COURT
RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR
TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE).
PLEDGORS AGREE THAT AGENT'S OR ANY LENDER'S COUNSEL IN ANY
SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY OF THESE
INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY
DISCOVERY DEPOSITION OF ANY OF THEM MAY BE USED IN THAT
PROCEEDING AS IF IT WERE AN EVIDENCE DEPOSITION. PLEDGORS IN
ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO
20
PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME
AND IN THE MANNER REQUESTED BY AGENT OR ANY LENDER, ALL
PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC OR OTHER
FORM) OR OTHER THINGS UNDER THEIR CONTROL AND RELATING TO THE
DISPUTE.
13.3 WAIVER OF JURY TRIAL, ETC.
EACH PLEDGOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS PLEDGE AGREEMENT AND
THE OTHER LOAN DOCUMENTS. EACH PLEDGOR ACKNOWLEDGES THAT THIS WAIVER IS
A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT AGENT
HAS RELIED ON THE WAIVER IN ENTERING INTO THIS PLEDGE AGREEMENT AND THE
OTHER LOAN DOCUMENTS AND WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH PLEDGOR WARRANTS AND REPRESENTS THAT SUCH
PLEDGOR HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH
LEGAL COUNSEL, AND THAT SUCH PLEDGOR KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS.
13.4 Counterparts; Effectiveness
This Pledge Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one in the same instrument.
This Pledge Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
13.5 Headings
Section and subsection headings are included herein for convenience of
reference only and shall not constitute a part of this Pledge Agreement
for any other purposes or be given substantive effect.
13.6 No Strict Construction
The parties hereto have participated jointly in the negotiation and
drafting of this Pledge Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Pledge Agreement
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Pledge
Agreement.
13.7 Severability
The invalidity, illegality, or unenforceability in any jurisdiction of
any provision under the Pledge Agreement shall not affect or impair the
remaining provisions in the Pledge Agreement.
13.8 Survival of Agreement
All covenants, agreements, representations and warranties made by
Pledgors herein and in the certificates or other instruments prepared
or delivered in connection with or pursuant to this
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Pledge Agreement shall be considered to have been relied upon by Agent
and shall survive the execution and delivery of the Credit Agreement
and the advance of all extensions of credit contemplated thereby,
regardless of any investigation made by Agent, and shall continue in
full force and effect until this Pledge Agreement shall terminate (or
thereafter to the extent provided herein).
13.9 Binding Effect; Several Agreement
This Pledge Agreement and all obligations of each Pledgor hereunder
shall be binding upon the successors and permitted assigns of such
Pledgor (including any debtor-in-possession on behalf of such Pledgor)
and shall, together with the rights and remedies of Agent, for the
benefit of Agent and Lenders, hereunder, inure to the benefit of Agent
and Lenders, all future holders of any instrument evidencing any of the
Secured Obligations and their respective successors and permitted
assigns except that Pledgors may not assign any of their rights or
obligations hereunder without the written consent of all Lenders which
assignment without such consent shall be void. No sales of
participations, other sales, assignments, transfers or other
dispositions of any agreement governing or instrument evidencing the
Secured Obligations or any portion thereof or interest therein shall in
any manner impair the Lien granted to Agent, for the benefit of Agent
and Lenders, hereunder.
13.10 No Waiver; Cumulative Remedies
Neither Agent nor any Lender shall by any act, delay, omission or
otherwise be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid unless in writing, signed by
Agent and then only to the extent therein set forth. A waiver by Agent
of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which Agent would otherwise
have had on any future occasion. No failure to exercise nor any delay
in exercising on the part of Agent or any Lender, any right, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies hereunder
provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None
of the terms or provisions of this Pledge Agreement may be waived,
altered, modified or amended except by an instrument in writing, duly
executed by Agent and each Pledgor.
13.11 Limitation by Law
All rights, remedies and powers provided in this Pledge Agreement may
be exercised only to the extent that the exercise thereof does not
violate any applicable provision of law, and all the provisions of this
Pledge Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the
extent necessary so that they shall not render this Pledge Agreement
invalid, unenforceable, in whole or in part, or not entitled to be
recorded, registered or filed under the provisions of any applicable
law.
13.12 Termination of this Agreement
Subject to Section 12 hereof, this Pledge Agreement shall terminate
upon the Termination Date. Following the termination of this agreement,
Agent shall, upon reasonable request, and at the sole cost and expense
of Pledgors, execute such termination statements and other releases (in
form and substance reasonably satisfactory to Agent) with respect to
security granted hereunder, and Agent shall at such time transfer any
original shares of stock, certificates, instruments and other
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documents evidencing or representing the Pledged Collateral delivered
to the Agent hereunder to the Pledgors, without recourse and without
representation or warranty. In the event that all Obligations have been
completely discharged and all Commitments are terminated, Agent shall
(except to the extent otherwise required by applicable law) deliver (i)
all the Pledged Collateral (other than Pledged Borrower Stock) at the
time subject to the "Security Agreement" (as such term is defined in
the Senior Notes Indenture) to the Senior Notes Trustee, to be held
thereby as collateral subject to the Second Lien or applied to the
obligations secured thereby and (ii) all Pledged Borrower Stock at the
time subject to the "Pledge Agreement" (as such term is defined in the
Senior Subordinated Notes Indenture) to the Senior Subordinated Notes
Trustee to be held as collateral subject to the Second Lien or applied
to the obligations secured thereby.
13.13 Advice of Counsel
Each of the parties represents to each other party hereto that it has
discussed this Pledge Agreement and, specifically, the provisions of
Section 13.2 and Section 13.3, with its counsel.
13.14 Intercreditor Agreements
The security interest of Agent in favor of Lenders granted hereunder
and the rights of such parties in respect thereof shall be subject to
and entitled to the benefits of the terms of (i) the Intercreditor
Agreement referred to in clause (i) of the definition of "Intercreditor
Agreements" and Section 12.02 of the Senior Notes Indenture with
respect to the Collateral, other than the Pledged Borrower Stock,
subject to the "Security Agreement" (as such term is defined in the
Senior Notes Indenture) and (ii) the Intercreditor Agreement referred
to in clause (ii) of the definition of "Intercreditor Agreements" and
Section 12.2 of the Senior Subordinated Notes Indenture with respect to
the Pledged Borrower Stock subject to the "Pledge Agreement" (as such
term is defined in the Senior Subordinated Notes Indenture).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, intending to be legally bound, each Pledgor has caused this
Pledge Agreement to be duly executed as of the date first above written.
TELEX COMMUNICATIONS, INC.,
as Pledgor
By: ________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
TELEX COMMUNICATIONS HOLDINGS, INC.,
as Pledgor
By: ________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
TELEX COMMUNICATIONS
INTERMEDIATE HOLDINGS, LLC,
as Pledgor
By: ________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
TELEX COMMUNICATIONS INTERNATIONAL, LTD.,
as Pledgor
By: ________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: ________________________________________
Name:
Title: Authorized Signatory
SIGNATURE PAGE TO TELEX PLEDGE AGREEMENT
