NOTES PLEDGE AGREEMENT
Exhibit 10.11
NOTES PLEDGE AGREEMENT, dated as of October 13, 2010 (this “Agreement”), among
ASSOCIATED MATERIALS, LLC, a Delaware limited liability company (the “Company”), and each
of the subsidiaries of the Company listed on Schedule 1 hereto (each such subsidiary, individually,
a “Subsidiary Pledgor” and, collectively, the “Subsidiary Pledgors”; and, together
with the Company, collectively, the “Pledgors”), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as collateral agent for the Secured Parties (as defined below) (in such capacity,
together with its successors in such capacity, the “Notes Collateral Agent”).
W I T N E S S E T H:
WHEREAS, Xxxxx Acquisition Corp. (“Merger Sub”), a Delaware corporation, which is to
be merged with and into the Company, Xxxxx New Finance, Inc., a Delaware corporation (the
“Co-Issuer” and, together with Merger Sub and the Company, the “Issuers”), have
entered into that certain Indenture dated as of the date hereof by and among the Issuers, the
Guarantors from time to time signatory thereto, the Notes Collateral Agent and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, in its capacity as Trustee on behalf of the holders of the Notes (as defined
below) (the “Holders”) (as from time to time amended, restated, supplemented or otherwise
modified, the “Indenture”), pursuant to which Issuer is issuing $730,000,000 aggregate
principal amount of 9.125% Senior Secured Notes due 2017 (together with any Additional Notes issued
under the Indenture, and any Exchange Notes, the “Notes”);
WHEREAS, pursuant to the terms of the Indenture, each of the Pledgors (other than the Issuers
in respect of their own obligations) have agreed to guarantee to the Notes Collateral Agent, for
the benefit of the Secured Parties, the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the Notes Obligations;
WHEREAS, following the date hereof, if not prohibited by the Indenture, the Pledgors may incur
Other Pari Passu Lien Obligations which are secured equally and ratably with the Pledgors’
obligations in respect of the Notes in accordance with Section 28 of this Agreement;
WHEREAS, each Pledgor will receive substantial benefits from the execution, delivery and
performance of the obligations under the Indenture, the Notes and any Other Pari Passu Lien
Obligations Agreement and each is, therefore, willing to enter into this Agreement;
WHEREAS, the Notes Collateral Agent has been appointed to serve as Notes Collateral Agent
under the Indenture and, in such capacity, to enter into this Agreement; and
WHEREAS, each Subsidiary Pledgor is a Domestic Subsidiary of the Company or other Subsidiary
Pledgor;
WHEREAS, each Pledgor acknowledges that it will derive substantial direct and indirect
benefits from the issuance of the Notes and has agreed to secure their obligations with respect
thereto pursuant to this Agreement;
WHEREAS, this Agreement is made by the Pledgors in favor of the Notes Collateral Agent for the
benefit of the Secured Parties to secure payment and performance in full when due on the Secured
Obligations; and
WHEREAS, (1) the Pledgors are the legal and beneficial owners of the Capital Stock described
in Schedule 2 and issued by the entities named therein (such Capital Stock, together with all other
Capital Stock (other than any Excluded Capital Stock) of each Subsidiary owned by any Issuer or
any Guarantor (or Person required to become a Guarantor pursuant to Section 4.15 of the Indenture),
in each case, formed or otherwise purchased or acquired after the Closing Date (such other Capital
Stock, the “After-acquired Shares”), are referred to collectively herein as the
“Pledged Shares”), and (2) each of the Pledgors is the legal and beneficial owner of the
promissory notes, chattel paper and instruments evidencing Indebtedness owed to it described in
Schedule 2 and issued by the entities named therein (such notes, chattel paper and instruments,
together with any other Indebtedness owed to any Pledgor hereafter and, except with respect to
intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount
in excess of the US dollar equivalent (as determined on the date of acquisition of such
Indebtedness) of $5,000,000 (individually) that is owing to any Issuer or any Guarantor (or Person
required to become a Guarantor pursuant to Section 4.15 of the Indenture) (the “After-acquired
Debt”), are referred to collectively herein as the “Pledged Debt”), in each case as
such Schedule 2 may be amended pursuant hereto or Sections 4.19 and 11.01 of the Indenture.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and to induce the Notes
Collateral Agent to enter into the Indenture and to induce the Holders to purchase the Notes, the
Pledgors hereby agree with the Notes Collateral Agent, for the benefit of the Secured Parties, as
follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in Section 1.01 of the Indenture and used
herein (including terms used in the preamble and the recitals) shall have the meanings given to
them in the Indenture and all terms defined in the Uniform Commercial Code from time to time in
effect in the State of New York (the “NY UCC”) and not defined herein or in the Indenture
shall have the meanings specified therein (and if defined in more than one article of the NY UCC,
shall have the meaning specified in Article 9 thereof).
(b) The rules of construction and other interpretive provisions specified in the Indenture
shall apply to this Agreement, including terms defined in the preamble and recitals hereto.
(c) The following terms shall have the following meanings:
“After-acquired Debt” shall have the meaning assigned to such term in the recitals
hereto.
“After-acquired Shares” shall have the meaning assigned to such term in the recitals
hereto.
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“Agreement” shall have the meaning assigned to such term in the preamble hereto.
“Applicable Authorized Representative” shall mean the Trustee (if the Notes constitute
a Series of Indebtedness with the greatest outstanding aggregate principal amount) or the
Authorized Representative representing the Series of Indebtedness with the greatest outstanding
aggregate principal amount (or accreted value).
“Authorized Representative” means any duly authorized representative of any holder of
Other Pari Passu Lien Obligations under any Other Pari Passu Lien Obligations Agreement designated
as “Authorized Representative” for such holder in an Other Pari Passu Lien Secured Party Consent
delivered to the Notes Collateral Agent.
“Collateral” shall have the meaning assigned to such term in Section 2 hereto.
“Company” shall have the meaning assigned to such term in the preamble hereto.
“Event of Default” shall mean an “Event of Default” under and as defined in the
Indenture or any Other Pari Passu Lien Obligations Agreement.
“Governmental Authority” shall mean the government of the United States, Canada or any
foreign country or any multinational authority, or any state, provincial, territorial or political
subdivision thereof, and any entity, body or authority exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, including the PBGC and other
quasi-governmental entities established to perform such functions.
“Notes Collateral Agent” shall have the meaning assigned to such term in the recitals
hereto.
“Notes Documents” has meaning assigned to such term in the Notes Security Agreement.
“Notes Obligations” means the collective reference to (i) any principal, interest
(including any interest accruing subsequent to the filing of a petition in bankruptcy,
reorganization or similar proceeding at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable state, federal or
foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement
obligations with respect to letters of credit and bankers’ acceptances), damages and other
liabilities, and guarantees of payment of such principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities owing to the Notes Collateral
Agent, the Trustee and the Holders under the Notes, the Indenture and the other Notes Documents and
the due performance and compliance by the Pledgors with all of the terms, conditions and agreements
contained in the Notes, the Indenture and the other Notes Documents; (ii) any and all sums advanced
or incurred by the Notes Collateral Agent in accordance with the Indenture or any of the other
Notes Documents in order to preserve the Collateral, preserve its security interest in the
Collateral, or in the performance of its duties or obligations under any Notes Document (including
reasonable attorneys’ fees and expenses); and (iii) in the event of any proceedings for the
collection or enforcement of any indebtedness, obligations or liabilities of the Pledgors referred
to in clause (i) above, 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 Notes
Collateral Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs.
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“Notes Priority Collateral” shall have the meaning assigned to such term in the
Intercreditor Agreement.
“Other Pari Passu Lien Obligations Agreement” shall have the meaning assigned to such
term in the Intercreditor Agreement.
“Other Pari Passu Lien Obligations” shall have the meaning assigned to such term in
the Intercreditor Agreement.
“Other Pari Passu Lien Secured Party Consent” means a consent in the form of Annex B
to this Agreement executed by the Authorized Representative of any holders of Other Pari Passu Lien
Obligations pursuant to Section 28 hereof.
“Permitted Liens” shall mean any Lien on the Collateral expressly permitted to be
granted pursuant to (i) the Indenture, including, without exception, pursuant to the definition of
“Permitted Liens” therein and Section 4.12 thereof and (ii) each Other Pari Passu Lien Obligations
Agreement.
“Pledged Debt” shall have the meaning assigned to such term in the recitals hereto.
“Pledged Shares” shall have the meaning assigned to such term in the recitals hereto.
“Pledgors” shall have the meaning assigned to such term in the preamble hereto.
“Revolving Collateral Agent” shall have the meaning assigned to such term in the
Intercreditor Agreement.
“Revolving Loan Documents” shall have the meaning assigned to such term in the
Intercreditor Agreement.
“Revolving Priority Collateral” shall have the meaning assigned to such term in the
Intercreditor Agreement.
“Secured Obligations” means the collective reference to the Notes Obligations and
Other Pari Passu Lien Obligations.
“Secured Parties” means (a) the Holders, (b) the Trustee, (c) the Notes Collateral
Agent, (d) the holders of any Other Pari Passu Lien Obligations, (e) any Authorized Representative,
(f) the beneficiaries of each indemnification obligation under any Notes Document and (g) the
successors and assigns of each of the foregoing.
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“Series of Indebtedness” means any Indebtedness (including Indebtedness under the
Notes) that constitute Secured Obligations and is represented by a common Authorized Representative
or (in the case of Indebtedness under the Notes) by the Trustee.
“Subsidiary Pledgors” shall have the meaning assigned to such term in the preamble
hereto.
(d) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Pledgor, shall refer to such Pledgor’s Collateral or the relevant part
thereof.
2. Grant of Security. As security for the prompt and complete payment when due
(whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations, each
Pledgor hereby transfers, assigns and pledges to the Notes Collateral Agent, for the benefit of the
Secured Parties, and hereby grants to the Notes Collateral Agent, for the benefit of the Secured
Parties, a security interest in and continuing lien on all of such Pledgor’s right, title and
interest in and to all of the following, whether now owned or anytime hereafter acquired or
existing (collectively, the “Collateral”):
(a) the Pledged Shares held by such Pledgor and the certificates, if any, representing
such Pledged Shares and any interest of such Pledgor, including all interests documented in
the entries on the books of the issuer of the Pledged Shares or any financial intermediary
pertaining to the Pledged Shares and all dividends, cash, warrants, rights, instruments and
other property or proceeds from time to time received, receivable or otherwise distributed
in respect of, or in exchange for, any or all of the Pledged Shares; provided that
the Pledged Shares under this Agreement shall not include any Excluded Capital Stock and in
no event shall the Secured Obligations be secured or purported to be secured by Pledged
Shares of any Capital Stock of any Foreign Subsidiary or of any Domestic Subsidiary treated
as a disregarded entity for US federal income tax purposes if substantially all of its
assets consist of Capital Stock of one or more Foreign Subsidiaries that are controlled
foreign corporations within the meaning of Section 957 of the Code, that is Voting Stock of
such Subsidiary in excess of 65% of the outstanding Capital Stock of such class;
(b) the Pledged Debt and the instruments evidencing the Pledged Debt owed to such
Pledgor, and all payments of principal or interest, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Pledged Debt;
(c) all other property that may be delivered to and held by the Notes Collateral Agent
pursuant to the terms of this Section 2;
(d) subject to Section 8, all rights and privileges of such Pledgor with respect to the
securities and other property referred to in clauses (a), (b) and (c) above; and
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(e) to the extent not covered by clauses (a), (b), (c) and (d) above, respectively, all
proceeds of any or all of the foregoing Collateral. For purposes of this Agreement, the
term “proceeds” includes whatever is receivable or received when Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes proceeds of any indemnity or guarantee
payable to any Pledgor or the Notes Collateral Agent from time to time with respect to any
of the Collateral;
provided, however, that notwithstanding any other provision of this Agreement, the
Collateral shall not include any Excluded Assets.
TO HAVE AND TO HOLD the Collateral, together with all right, title, interest, powers,
privileges and preferences pertaining or incidental thereto, unto the Notes Collateral Agent, for
the benefit of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
Notwithstanding anything to the contrary in this Agreement or, any other Notes Documents, the
Capital Stock and other securities of any direct or indirect Subsidiary of AMLLC that are owned by
AMLLC or any Guarantor will constitute Collateral only to the extent that such Capital Stock and
other securities can secure the Notes and/or the Guarantees without Rule 3-10 or Rule 3-16 of
Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate
financial statements of such Subsidiary to be filed with the SEC (or any other governmental
agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act
requires or is amended, modified or interpreted by the SEC to require (or is replaced with another
rule or regulation, or any other law, rule or regulation is adopted, which would require) the
filing with the SEC (or any other governmental agency) of separate financial statements of any
Subsidiary of the Company due to the fact that such Subsidiary’s Capital Stock and other securities
secure the Notes and/or the Guarantees, then the Capital Stock and other securities of such
Subsidiary shall automatically be deemed not to be part of the Notes Collateral (but only to the
extent necessary to not be subject to such requirement). In such event, the Security Documents may
be amended or modified, without the consent of the Trustee, the Notes Collateral Agent, any Holder
of Notes or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the
first-priority security interests in the shares of Capital Stock and other securities that are so
deemed to no longer constitute part of the Notes Collateral.
In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is
amended, modified or interpreted by the SEC to permit (or is replaced with another rule or
regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s
Capital Stock and other securities to secure the Notes and/or the Guarantees in excess of the
amount then pledged without the filing with the SEC (or any other governmental agency) of separate
financial statements of such Subsidiary, then the Capital Stock and other securities of such
Subsidiary shall automatically be deemed to be a part of the Notes Collateral (but only to the
extent necessary to not be subject to any such financial statement requirement). In such event, the
Security Documents may be amended or modified, without the consent of the Trustee, the Notes
Collateral Agent, any Holder of Notes or any holder of Other Pari Passu Lien Obligations, to the
extent necessary to subject to the Liens under the Security Documents such additional Capital Stock
and other securities.
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3. Security for the Secured Obligations. This Agreement secures the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of, and the
performance of, all the Secured Obligations; provided that in no event shall the
Secured Obligations be secured or purported to be secured by Pledged Shares of any Capital Stock of
any Foreign Subsidiary or of any Domestic Subsidiary treated as a disregarded entity for US federal
income tax purposes if substantially all of its assets consist of Capital Stock of one or more
Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of
the Code, that is Voting Stock of such Subsidiary in excess of 65% of the outstanding Capital Stock
of such class. Without limiting the generality of the foregoing, this Agreement secures the
payment of all amounts that constitute part of the Secured Obligations and would be owed to the
Notes Collateral Agent or the Secured Parties under the Notes Documents or Other Pari Passu Lien
Obligations Agreement, as applicable but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding involving any Pledgor;
provided that in no event shall the Secured Obligations be secured or purported to be
secured by Pledged Shares of any Capital Stock of any Foreign Subsidiary or of any Domestic
Subsidiary treated as a disregarded entity for US federal income tax purposes if substantially all
of its assets consist of Capital Stock of one or more Foreign Subsidiaries that are controlled
foreign corporations within the meaning of Section 957 of the Code, that is Voting Stock of such
Subsidiary in excess of 65% of the outstanding Capital Stock of such class.
4. Delivery of the Collateral and Filing.
(a) Each Pledgor represents and warrants that all certificates or instruments, if any,
representing or evidencing the Collateral in existence on the date hereof have been delivered to
the Notes Collateral Agent (or its non-fiduciary agent or designee) in suitable form for transfer
by delivery or accompanied by duly executed instruments of transfer or assignment in blank;
provided that in no event shall any certificates, instruments or transfer of stock powers
be required with respect to the pledge of any Capital Stock of any Foreign Subsidiary. All
certificates or instruments, if any, representing or evidencing the Collateral acquired or created
after the date hereof shall be promptly (but in any event within thirty days after acquisition or
creation thereof) delivered to and held by or on behalf of the Notes Collateral Agent (or its
non-fiduciary agent or designee) pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank.
Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent shall have the
right, at any time after the occurrence and during the continuation of an Event of Default and
without notice to any Pledgor (except as otherwise expressly provided herein), to transfer to or to
register in the name of the Notes Collateral Agent or any of its nominees any or all of the Pledged
Shares. After the occurrence and during the continuance of an Event of Default, each Pledgor will
promptly give to the Notes Collateral Agent copies of any notices or other communications received
by it with respect to Pledged Shares registered in the name of such Pledgor. Subject to the terms
of the Intercreditor Agreement, after the occurrence and during the continuance of an Event of
Default, the Notes Collateral Agent shall have the right to exchange the certificates representing
Pledged Shares for certificates of smaller or larger denominations for any purpose consistent with
this Agreement. Each delivery of Collateral (including any After-acquired Shares and
After-acquired Debt) shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which shall be attached hereto as part of Schedule 2 and made a part
hereof; provided that the failure to attach any such schedule hereto shall not affect the
validity of such pledge of such securities. Each schedule so delivered shall supersede any prior
schedules so delivered.
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(b) Each Pledgor hereby irrevocably authorizes the Notes Collateral Agent at any time and from
time to time to file in any relevant jurisdiction any initial financing statements with respect to
the Collateral or any part thereof and amendments thereto and continuations thereof that contain
the information required by Article 9 of the Uniform Commercial Code of each applicable
jurisdiction for the filing of any financing statement or amendment or continuation, including
whether such Pledgor is an organization, the type of organization and any organizational
identification number issued to such Pledgor. Such financing statements may describe the
Collateral in the same manner as described herein or may contain an indication or description of
collateral that describes such property in any other manner such as “all assets” or “all personal
property, whether now owned or hereafter acquired” of such Pledgor or words of similar effect as
being of an equal or lesser scope or with greater detail. Each Pledgor agrees to provide such
information to the Notes Collateral Agent promptly after any such request. Each Pledgor agrees to
furnish the Notes Collateral Agent with written notice as required by Section 4.2 of the Notes
Pledge Agreement.
5. Representations and Warranties. Each Pledgor represents and warrants to the Notes
Collateral Agent and each other Secured Party that:
(a) Schedule 2 hereto (i) correctly represents as of the date hereof (A) the issuer,
the issuer’s jurisdiction of formation, the certificate number, if any, the Pledgor and the
record and beneficial owner, the number and class and the percentage of the issued and
outstanding Capital Stock of such class of all Pledged Shares and (B) the issuer, the
issuer’s jurisdiction, the initial principal amount, the Pledgor and holder, date of
issuance and maturity date of all Pledged Debt and (ii) together with the comparable
schedule to each supplement hereto, includes, all Capital Stock, debt securities and
promissory notes required to be pledged pursuant to Sections 4.19 and 11.01 of the Indenture
and Section 9(b) hereof. Except as set forth on Schedule 2 and except for Excluded Capital
Stock, the Pledged Shares represent all of the issued and outstanding Capital Stock of each
class of Capital Stock in the issuer on the date hereof.
(b) Such Pledgor is the legal and beneficial owner of the Collateral pledged or
assigned by such Pledgor hereunder free and clear of any Lien, except for the Liens created
by this Agreement, the Revolving Loan Documents and the Notes Documents.
(c) (c) As of the date of this Agreement, the Pledged Shares pledged by such Pledgor
hereunder have been duly authorized and validly issued and, in the case of Pledged Shares
issued by a corporation, are fully paid and non-assessable.
(d) Except for restrictions and limitations imposed by the Intercreditor Agreement, the
Notes Documents or any documentation governing Other Pari Passu Lien Obligations, the
Revolving Loan Documents or securities laws generally and except as described in the
perfection certificate delivered on the date hereof, the Collateral is freely transferable
and assignable, and none of the Collateral is subject to any option, right of first refusal,
shareholders agreement, charter or by-law provisions or contractual restriction of any
nature that might prohibit, impair, delay or otherwise affect the pledge of such Collateral
hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Notes
Collateral Agent of rights and remedies hereunder.
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(e) No consent or approval of any Governmental Authority, any securities exchange or
any other Person was or is necessary to the validity of the pledge effected hereby (other
than such as have been obtained and are in full force and effect).
(f) The execution and delivery by such Pledgor of this Agreement and the pledge of the
Collateral pledged by such Pledgor hereunder pursuant hereto create a valid and enforceable
security interest in such Collateral (in the case of the Capital Stock of Foreign
Subsidiaries, to the extent the creation of such security interest in the Capital Stock of
Foreign Subsidiaries is governed by the NY UCC) and (i) in the case of certificates or
instruments representing or evidencing the Collateral, upon the earlier of (x) delivery of
such Collateral and any necessary indorsements to the extent necessary to the Notes
Collateral Agent (or its non-fiduciary agent or designee) in accordance with this Agreement
and (y) the filing of financing statements naming each Pledgor as “debtor” and the Notes
Collateral Agent as “secured party” and describing the Collateral in the applicable filing
offices, and (ii) in the case of all other Collateral which is capable of being perfected by
the filing of financing statements upon the filing of financing statements naming each
Pledgor as “debtor” and the Notes Collateral Agent as “secured party” and describing the
Collateral in the applicable filing offices, shall create a perfected security interest in
such Collateral (in the case of the Capital Stock of Foreign Subsidiaries, to the extent the
creation of such security interest in the Capital Stock of Foreign Subsidiaries is governed
by the NY UCC), securing the payment of the Secured Obligations, in favor of the Notes
Collateral Agent, for the benefit of the Secured Parties, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors’ rights generally and general principles of equity
(whether considered in a proceeding in equity or law).
(g) The pledge effected hereby is effective to vest in the Notes Collateral Agent, for
the benefit of the Secured Parties, the rights of the Notes Collateral Agent in the
Collateral as set forth herein.
(h) Such Pledgor has full power, authority and legal right to pledge all the Collateral
pledged by such Pledgor pursuant to this Agreement and this Agreement constitutes a legal,
valid and binding obligation of such Pledgor (in the case of the Capital Stock of Foreign
Subsidiaries, to the extent the creation of such security interest in the Capital Stock of
Foreign Subsidiaries is governed by the NY UCC), enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and
other similar laws relating to or affecting creditors’ rights generally and general
principles of equity (whether considered in a proceeding in equity or law).
(i) The issuers listed on Schedule 2 are the only Subsidiaries of such Pledgor as of
the Closing Date.
(j) The Pledged Debt constitutes all of the outstanding Indebtedness for money borrowed
owed to such Pledgor as of the Closing Date and required to be pledged hereunder or pursuant
to Sections 4.19 and 11.01 of the Indenture. Such Pledged Debt that constitutes
intercompany Indebtedness has been duly authorized, authenticated or issued
and delivered, is the legal, valid and binding obligation of the issuers thereof, is
evidenced by an intercompany note (which note has been delivered to the Notes Collateral
Agent (or is non-fiduciary agent or designee)) and, as of the date of this Agreement, is not
in default.
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6. Certification of Limited Liability Company Interests, Limited Partnership
Interests and Pledged Debt.
(a) Unless otherwise consented to by the Notes Collateral Agent, Capital Stock required to be
pledged hereunder in any Domestic Subsidiary that is organized as a limited liability company or
limited partnership and pledged hereunder shall either (i) be represented by a certificate, and in
the Organizational Documents of such Domestic Subsidiary the applicable Pledgor shall cause the
issuer of such interests to elect to treat such interests as a “security” within the meaning of
Article 8 of the Uniform Commercial Code of its jurisdiction of organization or formation, as
applicable, by including in its organizational documents language substantially similar to the
following and, accordingly, such interests shall be governed by Article 8 of the Uniform Commercial
Code:
“The [partnership/limited liability company] hereby irrevocably elects that all
[partnership/membership] interests in the [partnership/limited liability company] shall be
securities governed by Article 8 of the Uniform Commercial Code of [jurisdiction of
organization or formation, as applicable]. Each certificate evidencing
[partnership/membership] interests in the [partnership/limited liability company] shall bear
the following legend: “This certificate evidences an interest in [name of
[partnership/limited liability company]] and shall be a security for purposes of Article 8
of the Uniform Commercial Code.” No change to this provision shall be effective until all
outstanding certificates have been surrendered for cancellation and any new certificates
thereafter issued shall not bear the foregoing legend.”
or (ii) not have elected to be treated as a “security” within the meaning of Article 8 of the
Uniform Commercial Code and shall not be represented by a certificate.
(b) Subject to the limitations set forth herein and in Section 11.01 of the Indenture, each
Pledgor will cause any Indebtedness (i) for borrowed money (other than intercompany Indebtedness)
having an aggregate principal amount in excess of $5,000,000 (individually) owed to it to be
evidenced by a duly executed promissory note, which shall be accompanied by instruments of transfer
with respect thereto endorsed in blank, that is pledged and delivered to the Revolving Collateral
Agent (or its non-fiduciary agent or designee) pursuant to the terms hereof and (ii) of each
Borrower and each of their Restricted Subsidiaries that is owing to any Pledgor to be evidenced by
an intercompany note, which shall be accompanied by instruments of transfer with respect thereto
endorsed in blank, that is pledged and delivered to the Revolving Collateral Agent (or its
non-fiduciary agent or designee) pursuant to the terms hereof.
7. Further Assurances. Subject to any limitations set forth in the Indenture, each
Pledgor agrees that at any time and from time to time, at the expense of such Pledgor, it will
execute or otherwise authorize the filing of any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the filing and recording
of financing statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Notes Collateral Agent may reasonably
request, in order (x) to perfect and protect any pledge, assignment or security interest granted or
purported to be granted hereby (including the priority thereof) or (y) to enable the Notes
Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
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8. Voting Rights; Dividends and Distributions; Etc.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral or any part thereof for any purpose not prohibited by
the terms of this Agreement, the other Notes Documents or any Other Pari Passu Lien
Obligations Agreement; provided that such voting and other rights shall not be
exercised in any manner that could materially and adversely affect the rights inuring to a
holder of any Pledged Shares or the rights and remedies of any of the Notes Collateral Agent
or the other Secured Parties under this Agreement, the Indenture or any other Notes Document
or the ability of the Secured Parties to exercise the same.
(ii) The Notes Collateral Agent shall execute and deliver (or cause to be executed and
delivered) to each Pledgor all such proxies and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to exercise the voting and other
rights that it is entitled to exercise pursuant to paragraph (i) above.
(b) Subject to paragraph (c) below, each Pledgor shall be entitled to receive and retain and
use, free and clear of the Lien of this Agreement, any and all dividends, distributions,
redemptions, principal and interest made or paid in respect of the Collateral to the extent not
prohibited by any Security Document; provided, however, that any and all noncash
dividends, interest, principal or other distributions that would constitute Pledged Shares or
Pledged Debt, whether resulting from a subdivision, combination or reclassification of the
outstanding Capital Stock of the issuer of any Pledged Shares or received in exchange for Pledged
Shares or Pledged Debt or any part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be, and shall be forthwith delivered to the Notes Collateral Agent to hold as,
Collateral and shall, if received by such Pledgor, be received in trust for the benefit of the
Notes Collateral Agent, be segregated from the other property or funds of such Pledgor and be
forthwith delivered to the Notes Collateral Agent as Collateral in the same form as so received
(with any necessary indorsement).
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(c) Subject to the terms of the Intercreditor Agreement, upon written notice to the Pledgors
by the Notes Collateral Agent following the occurrence and during the continuation of an Event of
Default:
(i) all rights of such Pledgor to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise pursuant to Section
8(a)(i) shall cease, and all such rights shall thereupon become vested in the Notes
Collateral Agent, which shall thereupon have the sole right to exercise or refrain from
exercising such voting and other consensual rights during the continuation of such Event of
Default; provided that, unless otherwise directed by the Applicable Authorized
Representative to the extent permitted by the Indenture and any applicable Other Pari Passu
Lien Obligations Agreement, the Notes Collateral Agent shall have the right from time to
time following the occurrence and during the continuation of an Event of Default to permit
the Pledgors to exercise such rights. After all Events of Default have been cured or waived
or otherwise cease to be continuing and the Company has delivered to the Notes Collateral
Agent a certificate to that effect, each Pledgor will have the right to exercise the voting
and consensual rights that such Pledgor would otherwise be entitled to exercise pursuant to
the terms of Section 8(a)(i) (and the obligations of the Notes Collateral Agent under
Section 8(a)(ii) shall be reinstated);
(ii) all rights of such Pledgor to receive the dividends, distributions and principal
and interest payments that such Pledgor would otherwise be authorized to receive and retain
pursuant to Section 8(b) shall cease, and all such rights shall thereupon become vested in
the Notes Collateral Agent, which shall thereupon have the sole right to receive and hold as
Collateral such dividends, distributions and principal and interest payments during the
continuation of such Event of Default. After all Events of Default have been cured or
waived or otherwise cease to be continuing and the Company has delivered to the Notes
Collateral Agent a certificate to that effect, the Notes Collateral Agent shall repay to
each Pledgor (without interest) and each Pledgor shall be entitled to receive, retain and
use all dividends, distributions and principal and interest payments that such Pledgor would
otherwise be permitted to receive, retain and use pursuant to the terms of Section 8(b);
(iii) all dividends, distributions and principal and interest payments that are
received by such Pledgor contrary to the provisions of Section 8(b) shall be received in
trust for the benefit of the Notes Collateral Agent, shall be segregated from other property
or funds of such Pledgor and shall forthwith be delivered to the Notes Collateral Agent as
Collateral in the same form as so received (with any necessary indorsements); and
(iv) in order to permit the Notes Collateral Agent to receive all dividends,
distributions and principal and interest payments to which it may be entitled under Section
8(b) above, to exercise the voting and other consensual rights that it may be entitled to
exercise pursuant to Section 8(c)(i), and to receive all dividends, distributions and
principal and interest payments that it may be entitled to under Sections 8(c)(ii) and
(c)(iii), such Pledgor shall from time to time execute and deliver to the Notes Collateral
Agent, appropriate proxies, dividend payment orders and other instruments as the Notes
Collateral Agent may reasonably request.
(d) Any notice given by the Notes Collateral Agent to the Pledgors suspending their rights
under paragraph (c) of this Section 8 (i) may be given by telephone if promptly confirmed in
writing, (ii) may be given to one or more of the Pledgors at the same or different times and (iii)
may suspend the rights of the Pledgors under paragraph (a)(i) or paragraph (b) of this Section 8 in
part without suspending all such rights (as specified by the Notes Collateral Agent in its sole and
absolute discretion) and without waiving or otherwise affecting the Notes
Collateral Agent’s rights to give additional notices from time to time suspending other rights
so long as an Event of Default has occurred and is continuing.
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9. Transfers and Other Liens; Additional Collateral; Etc. Each Pledgor shall:
(a) not (i) except as expressly permitted by the Indenture or Other Pari Passu Lien
Obligations Agreement (including pursuant to waivers and consents thereunder), sell or
otherwise Dispose of, or grant any option or warrant with respect to, any of the Collateral
or (ii) create or suffer to exist any consensual Lien upon or with respect to any of the
Collateral, except for the Lien created by this Agreement and the other Security Documents
and the Permitted Liens; provided that in the event such Pledgor sells or otherwise
disposes of assets as permitted by the Indenture (including pursuant to waivers and consents
thereunder) and such assets are or include any of the Collateral, the Notes Collateral Agent
shall release such Collateral to such Pledgor free and clear of the Lien created by this
Agreement concurrently with the consummation of such sale in accordance with Section 11.03
of the Indenture and with Section 14 hereof;
(b) pledge and, if applicable, cause each Domestic Subsidiary required to become a
party hereto to pledge, to the Notes Collateral Agent for the benefit of the Secured
Parties, immediately upon acquisition thereof, all After-acquired Shares and After-acquired
Debt required to be pledged pursuant to Sections 4.19 and 11.01 of the Indenture, in each
case pursuant to a supplement to this Agreement substantially in the form of Annex A hereto
or such other form reasonably satisfactory to the Notes Collateral Agent (it being
understood that the execution and delivery of such a supplement shall not require the
consent of any Pledgor hereunder and that the rights and obligations of each Pledgor
hereunder shall remain in full force and effect notwithstanding the addition of any new
Subsidiary Pledgor as a party to this Agreement); and
(c) defend its and the Notes Collateral Agent’s title or interest in and to all the
Collateral (and in the Proceeds thereof) against any and all Liens (other than the Lien
created by this Agreement and the Permitted Liens), however arising, and any and all Persons
whomsoever and, subject to Section 11.03 of the Indenture and Section 14 hereof, to maintain
and preserve the Lien and security interest created by this Agreement until the Termination
Date.
10. Notes Collateral Agent Appointed Attorney-in-Fact. Each Pledgor hereby appoints,
which appointment is irrevocable and coupled with an interest, the Notes Collateral Agent as 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, to take any action and to execute any instrument, in each case
after the occurrence and during the continuation of an Event of Default, that the Notes Collateral
Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement,
including to receive, indorse and collect all instruments made pay-able to such Pledgor
representing any dividend, distribution or principal or interest payment in respect of the
Collateral or any part thereof and to give full discharge for the same.
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11. The Notes Collateral Agent’s Duties. The powers conferred on the Notes Collateral
Agent hereunder are solely to protect its interest in the Collateral and shall not impose
any duty upon it to exercise any such powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys actually received by it hereunder, the Notes
Collateral Agent shall have no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Shares, whether or not the Notes Collateral Agent or any other Secured Party has or is
deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve
rights against any parties or any other rights pertaining to any Collateral. The Notes Collateral
Agent shall be deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment substantially equal to that
which the Notes Collateral Agent accords its own property.
12. Remedies. Subject to the terms of the Intercreditor Agreement, if any Event of
Default shall have occurred and be continuing and:
(a) The Notes Collateral Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under the NY UCC (whether or not the NY
UCC applies to the affected Collateral) and also may without notice, except as specified
below, sell the Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange broker’s board or at any of the Notes Collateral Agent’s offices or
elsewhere, for cash, on credit or for future delivery, at such price or prices and upon such
other terms as the Notes Collateral Agent may deem commercially reasonable irrespective of
the impact of any such sales on the market price of the Collateral. The Notes Collateral
Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict
the prospective bidders or purchasers of Collateral to Persons who will represent and agree
that they are purchasing the Collateral for their own account for investment and not with a
view to the distribution or sale thereof, and, upon consummation of any such sale, the Notes
Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of any Pledgor, and each
Pledgor hereby waives (to the extent permitted by applicable law) all rights of redemption,
stay and/or appraisal that it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. The Notes Collateral Agent or any
other Secured Party shall have the right upon any such public sale, and, to the extent
permitted by applicable law, upon any such private sale, to purchase all or any part of the
Collateral so sold, and the Notes Collateral Agent or such other Secured Party may, subject
to (x) the satisfaction in full of all payments due pursuant to Section 12(b)(i) and (y) the
satisfaction of the Secured Obligations in accordance with the priorities set forth in
Section 12(b), pay the purchase price by crediting the amount thereof against the Secured
Obligations. Each Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten days’ notice to such Pledgor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute reasonable
notification. The Notes Collateral Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Notes Collateral Agent may
adjourn any public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without
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further notice, be made at the time and place to
which it was so adjourned. To the extent permitted
by applicable law, each Pledgor hereby waives any claim against the Notes Collateral
Agent arising by reason of the fact that the price at which any Collateral may have been
sold at such a private sale was less than the price that might have been obtained at a
public sale, even if the Notes Collateral Agent accepts the first offer received and does
not offer such Collateral to more than one offeree. As an alternative to exercising the
power of sale herein conferred upon it, the Notes Collateral Agent may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court appointed receiver. Any sale pursuant
to the provisions of this Section 12 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9 610(b) of the New York UCC or its equivalent
in other jurisdictions.
(b) Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent
shall apply the proceeds of any collection or sale of the Collateral at any time after
receipt in accordance with the priority set forth in Section 5.4 of the Security Agreement.
Upon any sale of the Collateral by the Notes Collateral Agent (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt of the Notes
Collateral Agent or of 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
Notes Collateral Agent or such officer or be answerable in any way for the misapplication
thereof.
(c) The Notes Collateral Agent may exercise any and all rights and remedies of each
Pledgor in respect of the Collateral.
(d) All payments received by any Pledgor after the occurrence and during the
continuation of an Event of Default in respect of the Collateral shall be received in trust
for the benefit of the Notes Collateral Agent, shall be segregated from other property or
funds of such Pledgor and shall, subject to the terms of the Intercreditor Agreement, be
forthwith delivered to the Notes Collateral Agent (or its non-fiduciary agent or designee)
as Collateral in the same form as so received (with any necessary indorsement).
(e) If the Notes Collateral Agent shall determine to exercise its right to sell all or
any of the Pledged Shares pursuant to this Section 12, each Pledgor recognizes that the
Notes Collateral Agent may be unable to effect a public sale of any or all of the Pledged
Shares, by reason of certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise, and may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers which 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 acknowledges and agrees that any
such private sale may result in prices and other terms less favorable than if such sale were
a public sale and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The Notes Collateral
Agent shall be under no obligation to delay a sale of any of the Pledged
Shares for the period of time necessary to permit the issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state securities
laws, even if such issuer would agree to do so.
-15-
(f) If the Notes Collateral Agent determines to exercise its right to sell any or all
of the Collateral, upon written request, each Pledgor shall, from time to time, furnish to
the Notes Collateral Agent all such information as the Notes Collateral Agent may reasonably
request in order to determine the number of shares and other instruments included in the
Collateral which may be sold by the Notes Collateral Agent as exempt transactions under the
Securities Act and rules of the SEC, as the same are from time to time in effect.
(g) Subject to the Notes Collateral Agent’s rights under Sections 10 and 12 of this
Agreement and the Notes Documents and whether or not a Default has occurred under the
Indenture or under an Other Pari Passu Lien Obligations Agreement or both, and subject to
the terms of the Indenture and any applicable Other Pari Passu Lien Obligations Agreement
the Applicable Authorized Representative may direct the Notes Collateral Agent in exercising
any right or remedy available to the Notes Collateral Agent under this Agreement or any
other Notes Document. No Secured Party (other than the Notes Collateral Agent) shall have
any individual right to pursue any remedies under this Agreement or the other Notes
Documents against any Pledgor.
13. Amendments, etc. with Respect to the Secured Obligations; Waiver of Rights.
Except for the termination of a Pledgor’s Secured Obligations hereunder as expressly provided in
Section 14, each Pledgor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Pledgor and without notice to or further assent by any Pledgor,
(a) any demand for payment of any of the Secured Obligations made by the Notes Collateral Agent or
any other Secured Party may be rescinded by such party and any of the Secured Obligations
continued, (b) the Secured Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset with respect thereto,
may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Notes Collateral Agent or any other Secured
Party, (c) the Notes Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in part, in accordance
with the terms of the applicable Notes Document or Other Pari Passu Lien Obligations Agreement, and
(d) any collateral security, guarantee or right of offset at any time held by the Notes Collateral
Agent or any other Secured Party for the payment of the Secured Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Notes Collateral Agent nor any other Secured Party
shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as
security for the Secured Obligations or for this Agreement or any property subject thereto. When
making any demand hereunder against any Pledgor, the Notes Collateral Agent or any other Secured
Party may, but shall be under no obligation to, make a similar demand on the Pledgors (to the
extent such demand is in respect of any Secured Obligations owing by the Pledgors) and any failure
by the Notes Collateral Agent or any other Secured Party to make any such demand or to collect any
payments from the Pledgors any release of the Pledgors shall not relieve any Pledgor in respect of
which a demand or collection is not made or any Pledgor not so released of its several obligations
or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a matter of law,
of the Notes Collateral Agent or any other Secured Party against any Pledgor. For the purposes
hereof “demand” shall include the commencement and continuation of any legal proceedings.
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14. Continuing Security Interest; Assignments Under the Security Documents; Release.
(a) A Subsidiary Pledgor shall automatically be released from its obligations hereunder and
the pledge of such Subsidiary Pledgor shall be automatically released upon the consummation of any
transaction permitted by the Indenture and any Other Pari Passu Lien Obligations Agreement as a
result of which such Subsidiary Pledgor ceases to be a Restricted Subsidiary of the Company or
otherwise becomes an Excluded Subsidiary; provided that the Applicable Authorized
Representative shall have consented to such transaction (to the extent such consent is required by
the Indenture and Other Pari Passu Lien Obligations Agreement) and the terms of such consent did
not provide otherwise.
(b) The obligations created hereby securing the Notes Obligations of any Pledgor with respect
to such Collateral shall be automatically released and such Collateral transferred free and clear
of the Lien and security interests created hereby (i) upon any disposition by such Pledgor of any
Collateral (other than to an Issuer or a Guarantor) to the extent not prohibited under the
Indenture or (ii) (automatically or otherwise) as otherwise provided in the Indenture. The Security
Interest in Collateral created hereby securing Other Pari Passu Lien Obligations shall be released
on the terms set forth in the Other Pari Passu Lien Obligations Agreement.
(c) In connection with any termination or release pursuant to this Section 14, the Notes
Collateral Agent shall execute and deliver to any Pledgor or authorize the filing of, at such
Pledgor’s expense, all documents that such Pledgor shall reasonably request to evidence such
termination or release; provided, however, that with respect to the release of any
item of Collateral pursuant to this Section 14 in connection with any request of evidence of
termination or release made of the Notes Collateral Agent, the Notes Collateral Agent may request
that the Pledgor deliver a certificate of an Authorized Officer to the effect that the sale or
transfer transaction is in compliance with the Notes Documents. Any execution and delivery of
documents pursuant to this Section 14 shall be without recourse to or warranty by the Notes
Collateral Agent.
15. Reinstatement. This Agreement shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any of the Secured Obligations
is rescinded or must otherwise be restored or returned by the Notes Collateral Agent or any other
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Issuers or any other Pledgor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Issuers or any other Pledgor or any
substantial part of its property, or otherwise, all as though such payments had not been made.
16. Notices. All notices, requests and demands pursuant hereto shall be made in
accordance with Section 13.02 of the Indenture. All communications and notices hereunder to any
Subsidiary Pledgor shall be given to it in care of the Company at the Company’s address set forth
in Section 13.02 of the Indenture.
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17. Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by facsimile or other electronic
transmission (i.e., a “pdf” or “tif”)), and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Notes Collateral Agent and the Company.
18. Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
19. Integration. This Agreement represents the agreement of each of the Pledgors with
respect to the subject matter hereof and there are no promises, undertakings, representations or
warranties by the Notes Collateral Agent or any other Secured Party relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Notes Documents.
20. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the affected Pledgor(s) and the Notes
Collateral Agent in accordance with Article 9 of the Indenture and the relevant provisions of each
Other Pari Passu Lien Obligations Agreement.
(b) Neither the Notes Collateral Agent nor any other Secured Party shall by any act (except by
a written instrument pursuant to Section 20(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event
of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Notes Collateral Agent or any other Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the Notes Collateral
Agent or any other Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that the Notes Collateral Agent or such other Secured
Party would otherwise have on any future occasion.
(c) The rights, remedies, powers and privileges herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.
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21. Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
22. Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, except
that no Pledgor may assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Notes Collateral Agent, except pursuant to a
transaction expressly permitted by the Indenture.
23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. Submission to Jurisdiction; Waivers. Each of the Pledgors hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement, and the other Notes Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding shall be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Pledgor at its address referred to in Section 16 or at such
other address of which the Notes Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right of the Notes Collateral Agent or
any other Secured Party to effect service of process in any other manner permitted by
applicable law or shall limit the right of the Notes Collateral Agent or any other Secured
Party to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section 24 any special,
exemplary, punitive or consequential damages.
25. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
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26. Intercreditor Agreement and Indenture Govern. Notwithstanding anything herein to
the contrary, the Liens and security interests granted to the Notes Collateral Agent, for the
benefit of the Secured Parties, pursuant to this Agreement and the exercise of any right or
remedy by the Notes Collateral Agent and the other Secured Parties hereunder, in each case,
with respect to the Revolving Priority Collateral and the “Revolving Liens” (as such term is
defined in the Intercreditors Agreement) are subject to the provisions of the Intercreditor
Agreement. In the event of any conflict or inconsistency between the provisions of the
Intercreditor Agreement and this Agreement with respect to the Revolving Priority Collateral and
the Revolving Liens, the provisions of the Intercreditor Agreement shall control. Subject to the
preceding sentence, in the event of any conflict between the terms of this Agreement and the
Indenture, as among the Grantors, the Notes Collateral Agent, the Trustee and the Holders of the
Notes, the Indenture shall prevail.
27. Obligations of Pledgors. Notwithstanding anything herein to the contrary, prior
to the Discharge of Revolving Obligations (as defined in the Intercreditor Agreement), so long as
the Revolving Collateral Agent pursuant to the Senior Credit Agreement is acting as bailee and
non-fiduciary agent for perfection on behalf of the Notes Collateral Agent pursuant to the terms of
the Intercreditor Agreement, any obligation of any Pledgor in this Agreement that requires (or any
representation or warranty hereunder to the extent that it would have the effect of requiring) (i)
delivery of Collateral to, or the possession or control of Collateral with, the Notes Collateral
Agent shall be deemed complied with and satisfied (or, in the case of any representation or
warranty hereunder, shall be deemed to be true) if such delivery of Collateral is made to, or such
possession or control of Collateral is with, the Revolving Collateral Agent pursuant to the
Revolving Loan Documents or (ii) other than with respect to any releases of Liens on any
Collateral, the consent of the Notes Collateral Agent regarding Revolving Priority Collateral shall
not be unreasonably withheld or delayed to the extent the Revolving Collateral Agent has given such
consent.
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28. Other Pari Passu Lien Obligations. On or after the date hereof and so long as
expressly permitted by the Indenture and any Other Pari Passu Lien Obligations Agreement then
outstanding, the Company may from time to time designate Indebtedness at the time of incurrence to
be secured on a pari passu basis with the Notes Obligations as Other Pari Passu Lien Obligations
hereunder by delivering to the Notes Collateral Agent and each Authorized Representative (a) a
certificate signed by an Officer of the Company (i) identifying the obligations so designated and
the initial aggregate principal amount or face amount thereof, (ii) stating that such obligations
are designated as Other Pari Passu Lien Obligations for purposes hereof, (iii) representing that
such designation of such obligations as Other Pari Passu Lien Obligations complies with the terms
of the Indenture and any Other Pari Passu Lien Obligations Agreement then outstanding and (iv)
specifying the name and address of the Authorized Representative for such obligations and (b) a
fully executed Other Pari Passu Lien Secured Party Consent (in the form attached as Annex
4). Each Authorized Representative agrees that upon the satisfaction of all conditions set
forth in the preceding sentence, the Notes Collateral Agent shall act as agent under this Agreement
for the Authorized Representative and the holders of such Other Pari Passu Lien Obligations and as
collateral agent for the benefit of all Secured Parties, including without limitation, any Secured
Parties that hold any such Other Pari Passu Lien Obligations, and each Authorized Representative
agrees to the appointment, and acceptance of the appointment, of the Notes Collateral Agent for the
Authorized Representative and the holders of such Other Pari Passu Lien Obligations as set forth in
each Other Pari Passu Lien Secured Party Consent and agrees, on behalf of itself and each Secured
Party it represents, to be bound by this Agreement, the Other Pari Passu Lien Secured Party
Consent, and the Intercreditor Agreement.
[Signature Pages Follow]
-21-
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
| ASSOCIATED MATERIALS, LLC, as a Pledgor |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President — Chief Financial Officer, Treasurer and Secretary | |||
| GENTEK HOLDINGS, LLC, as a Pledgor |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President — Chief Financial Officer, Treasurer and Secretary | |||
| GENTEK BUILDING PRODUCTS, INC., as a Pledgor |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President — Chief Financial Officer, Treasurer and Secretary | |||
[Signature Page to Notes Pledge Agreement]
| XXXXX NEW FINANCE, INC., as a Pledgor |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President, Treasurer and Secretary | |||
[Signature Page to Notes Pledge Agreement]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Notes Collateral Agent |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Notes Pledge Agreement]
SCHEDULE 1
TO THE NOTES
PLEDGE AGREEMENT
TO THE NOTES
PLEDGE AGREEMENT
SUBSIDIARY PLEDGORS
GENTEK HOLDINGS, LLC
GENTEK BUILDING PRODUCTS, INC.
XXXXX NEW FINANCE, INC.
GENTEK BUILDING PRODUCTS, INC.
XXXXX NEW FINANCE, INC.
Schedule 1-1
SCHEDULE 2
TO THE NOTES
PLEDGE AGREEMENT
TO THE NOTES
PLEDGE AGREEMENT
PLEDGED SHARES AND PLEDGED DEBT
Pledged Shares1
| Percentage of | ||||||||||||||||||
| Issuer’s | Issued and | |||||||||||||||||
| jurisdiction of | Class of Equity | Certificate | Number of | Outstanding | ||||||||||||||
| Pledgor | Issuer | formation | Interest | No(s) | Units | Units | ||||||||||||
Associated Materials LLC |
Gentek Holdings, LLC | Delaware, United States | Limited Liability Company Interest | N/A | 100 | % | ||||||||||||
Associated Materials LLC |
Xxxxx New Finance, Inc. | Delaware, United States | Common stock | N/A | 1000 | 100 | % | |||||||||||
Gentek Holdings, LLC |
Gentek Building Products, Inc. | Delaware, United States | Common stock | 3 | 100 | 100 | % | |||||||||||
Pledged Debt
Any and all intercompany Indebtedness hereinafter issued to any Pledgor under the US Intercompany
Note (as defined in the Revolving Loan Documents).
| 1 | The Pledged Shares included in this Schedule 2 represent share certificates outstanding as of the date hereof. However, immediately after the Closing Date these outstanding share certificates will cancelled and subsequently reissued within the time period required by Schedule 9.17 to the Credit Agreement (as defined in the Revolving Loan Documents). |
Schedule 2-1
ANNEX A
TO THE NOTES
PLEDGE AGREEMENT
TO THE NOTES
PLEDGE AGREEMENT
SUPPLEMENT NO. [___], dated as of [_________] (this “Supplement”), to the Notes
Pledge Agreement dated as of October 13, 2010 (the “Notes Pledge Agreement”), among)
ASSOCIATED MATERIALS, LLC, a Delaware limited liability company (the “Company”), and each
of the subsidiaries of the Company listed on Schedule 1 thereto (each such subsidiary,
individually, a “Subsidiary Pledgor” and, collectively, the “Subsidiary Pledgors”;
and, together with the Company, collectively, the “Pledgors”), and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as notes collateral agent for the Secured Parties (in such capacity, together
with its successors in such capacity, the “Notes Collateral Agent”).
A. Reference is made to the Indenture dated as of October 13, 2010 (the “Indenture”)
by and among Xxxxx Acquisition Corp. (“Merger Sub”), a Delaware corporation, which is to be
merged with and into the Company, Xxxxx New Finance, Inc., a Delaware corporation (the
“Co-Issuer” and, together with Merger Sub and the Company, the “Issuers”), the
Guarantors from time to time signatory thereto, the Notes Collateral Agent and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, in its capacity as Trustee on behalf of the holders of the Notes (as defined
below) (the “Holders”) (as from time to time amended, restated, supplemented or otherwise
modified, the “Indenture”), pursuant to which Issuer is issuing $730,000,000 aggregate
principal amount of 9.125% Senior Secured Notes due 2017 (together with any Additional Notes issued
under the Indenture, the “Notes”).
B. Capitalized terms used herein and not otherwise defined herein (including in the preamble
and the recitals hereto) shall have the meanings assigned to such terms in the Notes Pledge
Agreement. The rules of construction and the interpretive provisions specified in Section 1(b) of
the Notes Pledge Agreement shall apply to this Supplement, including terms defined in the preamble
and recitals hereto.
C. The Pledgors have entered into the Notes Pledge Agreement in order to induce the Notes
Collateral Agent to enter into the Indenture, and to induce the Holders to purchase the Notes.
D. The undersigned Pledgor (each, an “Additional Pledgor”) is (a) the legal and
beneficial owner of the Capital Stock described under Schedule 1 hereto and issued by the entities
named therein (such pledged Capital Stock, together with all other Capital Stock required to be
pledged under the Notes Pledge Agreement (the “After-acquired Additional Pledged Shares”),
referred to collectively herein as the “Additional Pledged Shares”) and (b) the legal and
beneficial owner of the promissory notes and instruments evidencing Indebtedness owed to it (the
“Additional Pledged Debt”) described under Schedule 1 hereto.
E. Section Sections 4.19 and 11.01 of the Indenture and Section 9(b) of the Notes Pledge
Agreement provides that additional Subsidiaries of the Company may become Subsidiary Pledgors under
the Notes Pledge Agreement by execution and delivery of an instrument in the form of this
Supplement. Each undersigned Additional Pledgor is executing this Supplement in accordance with
the requirements of Section 9(b) of the Notes Pledge Agreement
to pledge to the Notes Collateral Agent, for the benefit of the Secured Parties, the
Additional Pledged Shares and the Additional Pledged Debt [and to become a Subsidiary Pledgor under
the Notes Pledge Agreement] in order to induce the Notes Collateral Agent to enter into the
Indenture, and to induce the Holders to purchase the Notes.
Annex A-1
Accordingly, the Notes Collateral Agent and each undersigned Additional Pledgor agree as
follows:
SECTION 1. In accordance with Section 9(b) of the Notes Pledge Agreement, each Additional
Pledgor by its signature below hereby transfers, assigns and pledges to the Notes Collateral Agent,
for the benefit of the Secured Parties, and hereby grants to the Notes Collateral Agent, for the
benefit of the Secured Parties, a security interest in and to all of such Additional Pledgor’s
right, title and interest in the following, whether now owned or anytime hereafter acquired or
existing (collectively, the “Additional Collateral”):
(a) the Additional Pledged Shares held by such Additional Pledgor and the certificates,
if any, representing such Additional Pledged Shares and any interest of such Additional
Pledgor, including all interests documented in the entries on the books of the issuer of the
Additional Pledged Shares or any financial intermediary pertaining to the Additional Pledged
Shares and all dividends, cash, warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Additional Pledged Shares; provided that the Additional
Pledged Shares under this Supplement shall not include any Excluded Capital Stock and in no
event shall the Secured Obligations be secured or purported to be secured by Pledged Shares
of any Capital Stock of any Foreign Subsidiary or of any Domestic Subsidiary treated as a
disregarded entity for US federal income tax purposes if substantially all of its assets
consist of Capital Stock of one or more Foreign Subsidiaries that are controlled foreign
corporations within the meaning of Section 957 of the Code, that is Voting Stock of such
Subsidiary in excess of 65% of the outstanding Capital Stock of such class;
(b) the Additional Pledged Debt and the instruments evidencing the Additional Pledged
Debt owed to such Additional Pledgor, and all payments of principal or interest, cash,
instruments and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such Additional Pledged
Debt;
(c) all other property that may be delivered to and held by the Notes Collateral Agent
pursuant to the terms of this Section 1;
(d) subject to Section 8 of the Notes Pledge Agreement, all rights and privileges of
such Pledgor with respect to the securities and other property referred to in clauses (a),
(b) and (c) above; and
(e) to the extent not covered by clauses (a), (b), (c) and (d) above, respectively, all
proceeds of any or all of the foregoing Additional Collateral. For purposes of this
Supplement, the term “proceeds” includes whatever is receivable or received when
Additional Collateral or proceeds are sold, exchanged, collected or otherwise disposed
of, whether such disposition is voluntary or involuntary, and includes proceeds of any
indemnity or guarantee payable to any Additional Pledgor or the Notes Collateral Agent from
time to time with respect to any of the Additional Collateral;
Annex A-2
provided, however, that notwithstanding any other provision of this Agreement, the
Collateral shall not include any Excluded Assets.
TO HAVE AND TO HOLD the Additional Collateral, together with all right, title, interest,
powers, privileges and preferences pertaining or incidental thereto, unto the Notes Collateral
Agent, for the benefit of the Secured Parties, forever; subject, however, to the terms, covenants
and conditions hereinafter set forth.
For purposes of the Notes Pledge Agreement, (x) the Collateral shall be deemed to include the
Additional Collateral and (y) the After-acquired Pledged Shares shall be deemed to include the
Additional After-acquired Pledged Shares.
[SECTION 2. Each Additional Pledgor by its signature below becomes a Pledgor under the Notes
Pledge Agreement with the same force and effect as if originally named therein as a Pledgor and
each Additional Pledgor hereby agrees to all the terms and provisions of the Notes Pledge Agreement
applicable to it as a Pledgor thereunder. Each reference to a “Subsidiary Pledgor” or a “Pledgor”
in the Notes Pledge Agreement shall be deemed to include each Additional Pledgor. The Notes Pledge
Agreement is hereby incorporated herein by reference.]2
SECTION [2][3]. Each Additional Pledgor represents and warrants as follows:
(a) Schedule 1 hereto (i) correctly represents as of the date hereof (A) the issuer,
the certificate number, if any, the Additional Pledgor and the record and beneficial owner,
the number and class and the percentage of the issued and outstanding Capital Stock of such
class of all Additional Pledged Shares and (B) the issuer, the initial principal amount, the
Additional Pledgor and holder, date of issuance and maturity date of all Additional Pledged
Debt and (ii) together with Schedule 2 to the Notes Pledge Agreement and the comparable
schedules to each other Supplement to the Notes Pledge Agreement, includes all Capital
Stock, debt securities and promissory notes required to be pledged pursuant to Sections 4.19
and 11.01 of the Indenture and Section 9(b) of the Notes Pledge Agreement. Except as set
forth on Schedule 1 and except for Excluded Capital Stock, the Additional Pledged Shares
represent all of the issued and outstanding Capital Stock of each class of Capital Stock in
the issuer on the date hereof.
(b) Such Additional Pledgor is the legal and beneficial owner of the Additional
Collateral pledged or assigned by such Additional Pledgor hereunder free and clear
of any Lien, except for the Liens created by this Supplement to the Notes Pledge
Agreement and Liens created by the Notes Pledge Agreement.
| 2 | Include only for Additional Pledgors that are not already signatories to the Notes Pledge Agreement. |
Annex A-3
(c) As of the date of this Supplement, the Additional Pledged Shares pledged by such
Additional Pledgor hereunder have been duly authorized and validly issued and, in the case
of Additional Pledged Shares issued by a corporation, are fully paid and non-assessable.
(d) Except for restrictions and limitations imposed by the Intercreditor Agreement, the
Notes Documents or any documentation governing Other Pari Passu Lien Obligations, the
Revolving Loan Documents or securities laws generally, and except as disclosed on Schedule
1, the Additional Collateral is freely transferable and assignable, and none of the
Additional Collateral is subject to any option, right of first refusal, shareholders
agreement, charter or by-law provisions or contractual restriction of any nature that might
prohibit, impair, delay or otherwise affect the pledge of such Additional Collateral
hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Notes
Collateral Agent of rights and remedies hereunder.
(e) No consent or approval of any governmental authority, any securities exchange or
any other Person was or is necessary to the validity of the pledge effected hereby (other
than such as have been obtained and are in full force and effect).
(f) The execution and delivery by such Additional Pledgor of this Supplement and the
pledge of the Additional Collateral pledged by such Additional Pledgor hereunder pursuant
hereto create a valid and enforceable security interest in such Collateral (in the case of
the Capital Stock of Foreign Subsidiaries, to the extent the creation of such security
interest in the Capital Stock of Foreign Subsidiaries is governed by the NY UCC) and (i) in
the case of certificates or instruments representing or evidencing the Additional
Collateral, upon the earlier of (x) delivery of such Additional Collateral and any necessary
indorsements to the extent necessary to the Notes Collateral Agent (or its non-fiduciary
agent or designee) in accordance with this Supplement and the Notes Pledge Agreement and (y)
the filing of financing statements naming each Additional Pledgor as “debtor” and the Notes
Collateral Agent as “secured party” and describing the Additional Collateral in the
applicable filing offices, and (ii) in the case of all other Additional Collateral which is
capable of being perfected by the filing of financing statements, upon the filing of
financing statements naming each Additional Pledgor as “debtor” and the Notes Collateral
Agent as “secured party” and describing the Additional Collateral in the applicable filing
offices, shall create a perfected first priority security interest in such Additional
Collateral (in the case of the Capital Stock of Foreign Subsidiaries, to the extent the
creation of such security interest in the Capital Stock of Foreign Subsidiaries is governed
by the NY UCC), securing the payment of the Secured Obligations, in favor of the Notes
Collateral Agent, for the benefit of the Secured Parties, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors’ rights generally and general principles of equity
(whether considered in a proceeding in equity or law).
Annex A-4
(g) The pledge effected hereby is effective to vest in the Notes Collateral Agent, for
the benefit of the Secured Parties, the rights of the Notes Collateral Agent in the
Additional Collateral as set forth herein.
(h) Such Additional Pledgor has full power, authority and legal right to pledge all the
Additional Collateral pledged by such Additional Pledgor pursuant to this Supplement and
this Supplement constitutes a legal, valid and binding obligation of each Additional Pledgor
(in the case of the Capital Stock of Foreign Subsidiaries, to the extent the creation of
such security interest in the Capital Stock of Foreign Subsidiaries is governed by the NY
UCC), enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar laws relating to or
affecting creditors rights generally and general principles of equity (whether considered in
a proceeding in equity or law).
SECTION [3][4]. This Supplement may be executed by one or more of the parties to this
Supplement on any number of separate counterparts (including by facsimile or other electronic
transmission (i.e., a “pdf” or “tif”)), and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of the copies of this Supplement signed by all
the parties shall be lodged with the Notes Collateral Agent and the Company. This Supplement shall
become effective as to each Additional Pledgor when the Notes Collateral Agent shall have received
counterparts of this Supplement that, when taken together, bear the signatures of such Additional
Pledgor and the Notes Collateral Agent.
SECTION [4][5]. Except as expressly supplemented hereby, the Notes Pledge Agreement shall
remain in full force and effect.
SECTION [5][6]. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION [6][7]. Any provision of this Supplement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and in the Notes Pledge
Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION [7][8]. All notices, requests and demands pursuant hereto shall be made in accordance
with Section 16 of the Notes Pledge Agreement. All communications and notices hereunder to each
Additional Pledgor shall be given to it in care of the Company at the Company’s address set forth
in Section 13.02 of the Indenture.
SECTION [8][9]. Subject to Section 7.07 of the Indenture, each Additional Pledgor agrees to
reimburse the Notes Collateral Agent for its reasonable and documented
out-of-pocket expenses in connection with this Supplement, including the reasonable and documented
fees, other charges and disbursements of counsel for the Notes Collateral Agent.
Annex A-5
IN WITNESS WHEREOF, each Additional Pledgor and the Notes Collateral Agent have duly executed
this Supplement to the Notes Pledge Agreement as of the day and year first above written.
| [NAME OF ADDITIONAL PLEDGOR(S)], |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE 1
TO SUPPLEMENT NO. [__]
TO THE NOTES
U.S. PLEDGE AGREEMENT
TO SUPPLEMENT NO. [__]
TO THE NOTES
U.S. PLEDGE AGREEMENT
PLEDGED SHARES AND PLEDGED DEBT
Pledged Shares
| Issuer’s | Percentage of | |||||||||||||||||||||||||||||
| jurisdiction | Issued and | |||||||||||||||||||||||||||||
| of | Class of Equity | Certificate | Number | Outstanding | ||||||||||||||||||||||||||
| Pledgor | Issuer | formation | Interest | No(s), if any | of Units | Units | ||||||||||||||||||||||||
Pledged Debt
| Issuer’s | Initial | ||||||||||||||||||||||||
| jurisdiction of | Principal | ||||||||||||||||||||||||
| Pledgor | Issuer | formation | Amount | Date of Issuance | Maturity Date | ||||||||||||||||||||
Schedule 1-1
ANNEX B
TO
PLEDGE AGREEMENT
TO
PLEDGE AGREEMENT
FORM OF OTHER PARI PASSU LIEN SECURED PARTY CONSENT
[Name of Other Pari Passu Lien Secured Party]
[Address of Other Pari Passu Lien Secured Party]
[Address of Other Pari Passu Lien Secured Party]
[Date]
The undersigned is the Authorized Representative for [list new secured parties] who have
evidenced in writing their intent to become Secured Parties (the “New Secured Parties”)
under the Notes Pledge Agreement dated as of October 13, 2010 (the “ Notes Pledge
Agreement”) by and among Associated Materials, LLC, a Delaware limited liability company (the
“Company”), the subsidiaries of the Company party thereto and Xxxxx Fargo Bank, National
Association, as Notes Collateral Agent. Terms used herein but not defined herein have the meanings
assigned to such terms in the Notes Pledge Agreement.
In consideration of the foregoing, the undersigned Authorized Representative hereby:
(i) represents that the Authorized Representative has been duly authorized by the New
Secured Parties to become a party to the Notes Pledge Agreement on behalf of the New Secured
Parties under that [DESCRIBE OPERATIVE AGREEMENT] (the “New Secured Obligations”)
and to act as the Authorized Representative for the New Secured Parties, including to
appoint the Collateral Agent as set forth below;
(ii) acknowledges that each of the New Secured Parties has received a copy of the Notes
Pledge Agreement, the Intercreditor Agreement and the Indenture, accepts and acknowledges
and agrees for itself and each new secured party to be bound in all respects by the terms of
the Notes Pledge Agreement, including the provisions of the Indenture incorporated therein
by reference;
(iii) appoints and authorizes the Notes Collateral Agent, as Collateral Agent for the
New Secured Parties under the Notes Pledge Agreement and the Intercreditor Agreement, to
take such action as agent on its behalf and on behalf of all other Secured Parties and to
exercise such powers under the Notes Pledge Agreement and the Intercreditor Agreement as are
delegated to the Notes Collateral Agent by the terms thereof;
(iv) accepts, acknowledges and agrees for itself and each new secured party to be bound
in all respects by the terms of the Intercreditor Agreement applicable to it and the New
Secured Parties and agrees to serve as Authorized Representative for the New Secured Parties
with respect to the New Secured Obligations and agrees on its own behalf and on behalf of
the New Secured Parties to be bound by the terms thereof applicable to holders of Other Pari
Passu Lien Obligations, with all the rights and obligations of a
Notes Claimholder (as defined in the Intercreditor Agreement) thereunder and bound by
all the provisions thereof (including, without limitation, Section 9.3 thereof) as fully as
if it had been a Notes Claimholder on the effective date of the Intercreditor Agreement and
agrees that its address for receiving notices pursuant to the Notes Pledge Agreement and the
other Security Documents shall be as follows:
[Address]
The New Secured Parties shall be the Authorized Representative and the holders of the New
Secured Obligations.
Annex B-1
The Authorized Representative for itself and each New Secured Party does hereby covenant and
agree in favor of Notes Collateral Agent that:
(a) The Notes Collateral Agent shall have no obligation whatsoever to the Authorized
Representatives or any of the Secured Parties to assure that the Collateral exists or is
owned by any Pledgor or is cared for, protected, or insured or has been encumbered, or that
the Notes Collateral Agent’s liens or security interests have been properly or sufficiently
or lawfully created, perfected, protected, maintained or enforced or are entitled to any
particular priority, or to determine whether all or any Pledgor’s property constituting
collateral intended to be subject to the lien and security interest of the Notes Pledge
Agreement has been properly and completely listed or delivered, as the case may be, or the
genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise
at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to
continue exercising, any of the rights, authorities, and powers granted or available to the
Notes Collateral Agent pursuant to the Notes Pledge Agreement, any Notes Document or the
Intercreditor Agreement other than pursuant to the instructions provided in the Notes Pledge
Agreement, it being understood and agreed that in respect of the Collateral, or any act,
omission, or event related thereto, the Notes Collateral Agent shall have no other duty or
liability whatsoever to the Authorized Representative or any Secured Party as to any of the
foregoing.
(b) No provision of the Notes Pledge Agreement or any Notes Document shall require the
Notes Collateral Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or thereunder or to take or omit
to take any action hereunder or thereunder or take any action at the request or direction of
Required Secured Parties unless the Notes Collateral Agent shall have received indemnity
satisfactory to the Notes Collateral Agent against potential costs and liabilities incurred
by the Notes Collateral Agent relating thereto. Notwithstanding anything to the contrary
contained in the Notes Pledge Agreement, the Intercreditor Agreement or the Notes Documents,
in the event the Notes Collateral Agent is entitled or required to commence an action to
foreclose or otherwise exercise its remedies to acquire control or possession of the
Collateral, the Notes Collateral Agent shall not be required to commence any such action or
exercise any remedy or to inspect or conduct any studies of any property under the
mortgages or take any such other action if the Notes Collateral Agent has determined that
the Notes Collateral Agent may incur personal liability as a result of the presence at, or
release on or from, the Collateral or such property, of any
hazardous substances unless the Notes Collateral Agent has received security or indemnity
from the Secured Parties in an amount and in a form all satisfactory to the Notes Collateral
Agent in its sole discretion, protecting the Notes Collateral Agent from all such liability.
The Notes Collateral Agent shall at any time be entitled to cease taking any action
described above if it no longer reasonably deems any indemnity, security or undertaking from
the Pledgors or the Secured Parties to be sufficient.
Annex B-2
(c) The Notes Collateral Agent (i) shall not be liable for any action taken or omitted
to be taken by it in connection with the Intercreditor Agreement or any Notes Documents or
instrument referred to herein or therein, except to the extent that any of the foregoing are
found by a final, non-appealable judgment of a court of competent jurisdiction to have
resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for
interest on any money received by it except as the Notes Collateral Agent may agree in
writing with the Issuers (and money held in trust by the Notes Collateral Agent need not be
segregated from other funds except to the extent required by law) and (iii) may consult with
counsel of its selection and the advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it in good faith and in accordance with the advice or
opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral
Agent shall not be construed to impose duties to act.
(d) In no event shall the Notes Collateral Agent be responsible or liable for any
special, indirect, punitive, incidental or consequential loss or damage or any kind
whatsoever (including, but not limited to, lost profits) irrespective of whether the Notes
Collateral Agent has been advised of the likelihood of such loss or damage and regardless of
the form of action.
(e) The Notes Collateral Agent does not assume any responsibility for any failure or
delay in performance or any breach by the Pledgors under the Notes Pledge Agreement, the
Intercreditor Agreement and the Notes Documents. The Notes Collateral Agent shall not be
responsible to the Secured Parties or any other Person for any recitals, statements,
information, representations or warranties contained in any Notes Documents or in any
certificate, report, statement, or other document referred to or provided for in, or
received by the Notes Collateral Agent under or in connection with, the Notes Pledge
Agreement, the Intercreditor Agreement or any Notes Document; the execution, validity,
genuineness, effectiveness or enforceability of the Notes Pledge Agreement, the
Intercreditor Agreement and any Notes Documents of any other party thereto; the genuineness,
enforceability, collectability, value, sufficiency, location or existence of any Collateral,
or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority
of any Lien therein; the validity, enforceability or collectability of any Notes
Obligations; the assets, liabilities, financial condition, results of operations, business,
creditworthiness or legal status of any obligor; or for any failure of any obligor to
perform its Notes Obligations under the Notes Pledge Agreement, the Intercreditor Agreement
and the Notes Documents. The Notes Collateral Agent shall have no obligation to any Secured
Party or any other Person to ascertain or inquire into the existence of any Default or Event
of Default, the observance or performance by any obligor of any terms of the Notes Pledge
Agreement, the Intercreditor Agreement and the Notes Pledge
Annex B-3
Documents, or the
satisfaction of any conditions precedent contained in the Notes Pledge Agreement, the
Intercreditor Agreement and any Notes Documents. The Notes Collateral Agent shall not be
required to initiate or conduct any litigation or collection or other proceeding under the
Notes Pledge Agreement, the Intercreditor Agreement and the Notes Documents unless expressly
set forth hereunder or thereunder. The Notes Collateral Agent shall have the right at any
time to seek instructions from the Required Secured Parties with respect to the
administration of the Notes Documents.
(f) The Secured Parties hereby agree and acknowledge that the Notes Collateral Agent
shall not assume, be responsible for or otherwise be obligated for any liabilities, claims,
causes of action, suits, losses, allegations, requests, demands, penalties, fines,
settlements, damages (including foreseeable and unforeseeable), judgments, expenses and
costs (including but not limited to, any remediation, corrective action, response, removal
or remedial action, or investigation, operations and maintenance or monitoring costs, for
personal injury or property damages, real or personal) of any kind whatsoever, pursuant to
any environmental law as a result of the Notes Pledge Agreement, the Intercreditor
Agreement, the Notes Documents or any actions taken pursuant hereto or thereto. Further,
the Secured Parties hereby agree and acknowledge that in the exercise of its rights under
the Notes Pledge Agreement, the Intercreditor Agreement and the Notes Documents, the Notes
Collateral Agent may hold or obtain indicia of ownership primarily to protect the security
interest of the Notes Collateral Agent in the Collateral, including without limitation the
properties under the real property that constitute Collateral, and that any such actions
taken by the Notes Collateral Agent shall not be construed as or otherwise constitute any
participation in the management of such Collateral, including without limitation the real
properties that constitute Collateral, as those terms are defined in Section 101(20)(E) of
the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601
et seq., as amended.
(g) The Authorized Representative for itself and on behalf of the New Secured Parties,
shall take such action as Notes Collateral Agent may reasonably request to carry out the
intent of the foregoing obligations of the Authorized Representative and the New Secured
Parties, an including executing, acknowledging, authorizing, delivering or recording or
filing additional instruments, agreements or documents.
The Notes Collateral Agent, by acknowledging and agreeing to this Other Pari Passu Lien
Secured Party Consent, and in consideration of the foregoing representations, warranties, covenants
and agreements of the Authorized Representative and each Other New Secured Party, accepts the
appointment set forth in clause (iii) above.
THIS OTHER PARI PASSU LIEN SECURED PARTY CONSENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Annex B-4
IN WITNESS WHEREOF, the undersigned has caused this Other Pari Passu Lien Secured Party
Consent to be duly executed by its authorized officer as of the ___ day of _______, 20__.
| [AUTHORIZED REPRESENTATIVE] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Acknowledged and Agreed XXXXX FARGO BANK, NATIONAL ASSOCIATION as Notes Collateral Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ASSOCIATED MATERIALS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
