EXHIBIT 10.7
[Execution Copy]
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement"), dated as of July 31, 2002, is
made and entered into by THE XXXXXXXX COMPANIES, INC., a Delaware corporation
(the "Company"), and each of the Subsidiaries which is a signatory hereto or
which subsequently becomes a party hereto in accordance with the terms hereof
(together, with the Company, the "Pledgors"), in favor of Citibank, N.A., as
collateral trustee ("Collateral Trustee") for the benefit of the holders of the
Secured Obligations (as defined in Section 2 below).
PRELIMINARY STATEMENTS
A. The Company and/or its Subsidiaries have entered into multiple
financing transactions with groups of lenders and financial institutions
(collectively, referred to herein as the "Financial Institutions"). Such
financing transactions are governed by the credit and security documents more
fully described in Schedule V hereto (such documents being collectively referred
to herein, as the same may be amended and modified from time to time, as the
"Credit Documents"). "Borrowers" as used herein shall mean the borrowers under
any one or more of the Credit Documents, and "Obligors" shall mean collectively,
the Borrowers and all other Persons who guarantee or otherwise are liable for
any portion of the Secured Obligations.
B. The Company, several of its Subsidiaries and Citibank, N.A., as
collateral trustee have entered into a Collateral Trust Agreement dated as of
July 31, 2002 (the "Collateral Trust Agreement"), which provides for collateral
to be held by Citibank, N.A., as collateral trustee for the benefit of the
Financial Institutions.
C. It is a condition to certain transactions under the Credit
Documents, that each of the Pledgors shall have executed and delivered this
Agreement.
D. The Company is the principal financing entity for all capital
requirements of its Subsidiaries, and from time to time the Company has made
capital contributions and advances to each of the Pledgors other than the
Company. Other than the Company each of the Pledgors is a wholly owned
Subsidiary of the Company and will derive substantial direct or indirect benefit
from the transactions contemplated by the Credit Documents.
AGREEMENT
Therefore, in order to induce the Financial Institutions to enter into
and/or continue certain financing transactions described in the Credit
Documents, each of the Pledgors hereby agrees with Collateral Trustee for the
benefit of the Collateral Trustee and the other Financial Institutions as
follows:
1. Pledge. To secure the Secured Obligations (as defined in Section 2
below), each Pledgor hereby TRANSFERS, GRANTS, BARGAINS, SELLS, CONVEYS,
HYPOTHECATES, SETS OVER, DELIVERS AND PLEDGES to the Collateral Trustee for the
benefit of the Financial Institutions, and GRANTS to the Collateral Trustee, for
the benefit of the Financial Institutions, a security interest in all of such
Pledgor's right, title and interest of every kind and character now owned or
hereafter acquired, created or arising in and to the following (the "Pledged
Collateral"):
(a) the Pledged Shares (as defined below);
(b) all shares of capital stock, general and limited
partnership interests, limited liability company interests, trust interests,
joint venture interests, ownership rights arising under the law of any
jurisdiction, and any evidence of the foregoing, together with any property and
rights derivative thereof, acquired, received or owned by any Pledgor, which, on
or after the date of this Agreement, is or becomes, as a result of any
occurrence, a Subsidiary of any Pledgor or of the Company;
(c) all certificates and similar evidence of ownership
representing the Pledged Collateral;
(d) all cash dividends, stock dividends, 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 the Pledged
Collateral; and
(e) all additions to and substitutions for any of the
foregoing and all products and proceeds of any of the Pledged Collateral,
together with all renewals and replacements of any of the Pledged Collateral,
all accounts, accounts receivable, instruments, notes, chattel paper, documents
(including all documents of title), books, records, contract rights and general
intangibles arising in connection with any of the Pledged Collateral.
"Pledged Shares" means, with respect to each Pledgor, all shares
described in Schedule I as being held by such Pledgor, as amended from time to
time, together with all rights, contingent or otherwise, of such Pledgor to
acquire shares in the entities or organizations represented by the shares
described in Schedule I (whether such shares are described as being held by such
Pledgor or not), as amended from time to time, and all rights to receive cash
dividends, stock dividends, distributions upon redemption or liquidation,
distributions as a result of split-ups, recapitalizations or rearrangements,
stock rights, rights to subscribe, voting rights, rights to receive securities,
options, warrants, calls, commitments, securities accounts, security
entitlements, and all new securities and other property which such Pledgor now
owns or may hereafter become entitled to receive on account of the foregoing or
with respect to any such entities or organizations;
TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Collateral Trustee, its successors and assigns, on behalf of
the Financial Institutions, forever; subject, however, to the terms, covenants
and conditions set forth in this Agreement and is subject in all cases to the
limitations more fully set out in Section 2.2 of Collateral Trust Agreement.
2. Security for Obligations. The security interests and other rights
granted pursuant to Section 1 secure, and the Pledged Collateral is security
for, the prompt performance and payment in full in cash when due, whether at
stated maturity, by acceleration or otherwise of
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the Secured Obligations. As used in this Agreement the "Secured Obligations"
shall mean the Guaranteed Obligations and Bonds (as such term is defined in the
Collateral Trust Agreement). Notwithstanding that the balance of the Secured
Obligations may at certain times be zero and that no letters of credit may at
certain times be outstanding under the Credit Documents, the Liens granted
hereunder to the Collateral Trustee shall remain in full force and effect at all
times and with the same priority until the payment in full in cash of the
Secured Obligations, the termination of the commitments, however described,
under the Credit Documents, the repayment of all obligations due with respect to
the bonds and the expiration or termination of all outstanding letters of credit
provided under the Credit Documents (all such commitments, repayment obligations
and outstanding letters of credit are referred to herein as the "Credit Document
Commitments").
3. Delivery of Pledged Collateral. Subject only to the exception set
forth in Section 6(a)(ii), the Pledged Collateral and all certificates,
instruments and property representing or evidencing the Pledged Collateral
shall, on or before the date of this Agreement (with respect to all Pledged
Collateral owned by a Pledgor on the date of this Agreement) or within two
Business Days of a Pledgor's actual or constructive receipt of such Pledged
Collateral (with respect to Pledged Collateral received after the date of this
Agreement), be delivered to and held by or on behalf of the Collateral Trustee
pursuant to this Agreement and shall be in suitable form for transfer of
ownership and possession by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Trustee. The Collateral Trustee shall have the
right, at any time in its discretion and without notice to any Pledgor, to
transfer to or to register in its name or any of its nominees, any or all of the
Pledged Collateral, subject only to the revocable rights of such Pledgor
specified in Section 6(a) hereof. In addition, the Collateral Trustee shall have
the right at any time to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
4. Representations, Warranties and Covenants. Each Pledgor represents,
warrants and covenants, to the Collateral Trustee and the other Financial
Institutions, as follows:
(a) Such Pledgor (i) is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation; (ii) is duly qualified and in good standing in every jurisdiction in
which the nature of its business makes such qualification necessary and where
the failure to so qualify has a reasonable likelihood of having a material
adverse effect; (iii) has all requisite corporate power and authority and the
legal right to own, pledge, mortgage and operate its properties, and to conduct
its business as now or currently proposed to be conducted; (iv) is in compliance
with its certificate or articles of incorporation, by-laws and similar
organizational documents; (v) is not in default under any material agreement
such that there is a reasonable likelihood of such default having a material
adverse effect; (vi) is in compliance (except to the extent any noncompliance
has no reasonable likelihood of having a material adverse effect) with all legal
requirements; and (vii) together with the other Pledgors and the Company, forms
part of a group of companies that are closely related legally and economically,
each deriving benefits from the other, and the execution, delivery and
performance of this Agreement is conducive to the business interests of such
Pledgor and its pursuit of profits and continuity.
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(b) Each Person listed on Schedule I hereto: (i) is an entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (ii) is duly qualified to do business and in
good standing in every jurisdiction in which the nature of the business it
conducts makes such qualification necessary or desirable; (iii) has all
requisite corporate power and authority and the legal right to own, pledge,
mortgage and operate its properties, and to conduct its business as now or
currently proposed to be conducted; (iv) is in compliance with its certificate
or articles of incorporation, by-laws and similar organizational documents; and
(v) is in compliance (except to the extent any noncompliance has no reasonable
likelihood of having a material adverse effect) with all legal requirements.
(c) The execution, delivery, and performance by such Pledgor
of this Agreement (i) are within such Pledgor's corporate power; (ii) have been
duly authorized by all necessary corporate action; (iii) do not contravene such
Pledgor's certificate or articles of incorporation or by-laws or other
organizational documents; (iv) do not result in or require the creation of any
Lien upon or with respect to any of its properties except for the Lien created
by this Agreement; and (v) do not conflict with or result in a breach of the
terms, conditions or provisions of, or cause a default under, any agreement,
instrument, franchise, license or concession to which such Pledgor is a party or
by which such Pledgor or any of its property is bound.
(d) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for the due
execution, delivery and performance by any Pledgor of this Agreement or for the
validity or enforceability thereof.
(e) This Agreement is a legal, valid and binding obligation of
such Pledgor enforceable against such Pledgor in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, insolvency or
similar laws relating to creditors' rights generally, as such laws would apply
in the event of bankruptcy insolvency or other similar occurrence with respect
to such Pledgor.
(f) There is no pending or, to the best knowledge of any
Pledgor, threatened action, suit or proceeding affecting any Pledgor before or
by any Governmental Authority which has any reasonable likelihood of calling
into question this Agreement, the security interest granted hereby,
enforceability of this Agreement, or the rights of any Pledgor to enter into
this Agreement.
(g) Such Pledgor is not a party to any contractual obligation
the performance of which either unconditionally or upon the happening of an
event, will result in the creation of a Lien on such Pledgor's property or
assets (other than in favor of the Financial Institutions).
(h) All statements made to the Financial Institutions by or on
behalf of such Pledgor or any Obligor which is a Subsidiary of such Pledgor
before, concurrently with or after the execution of this Agreement with respect
to the Pledged Collateral are and will be true, correct, complete, valid and
genuine in all material respects. No statement contained in any certificate,
schedule, list, financial statement or other papers furnished to any Financial
Institution by or on behalf of such Pledgor or any such Obligor contains (or
will contain) any
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untrue statement of material fact or omits (or will omit) to state a material
fact necessary to make the statements contained herein or therein not
misleading.
(i) The shares described on Schedule I include all of the
authorized, issued and outstanding shares of capital stock of each of the
companies listed thereon and the rights to acquire shares in such companies.
Such Pledgor is the sole legal and equitable owner and holder of the Pledged
Shares shown to be owned by such Pledgor on Schedule I, which are free and clear
of all Liens, or rights or interests of any other Person, of every kind and
nature except for the Lien created by this Agreement. The shares of stock
described in the first sentence of this paragraph are duly authorized, validly
issued, fully paid, non-assessable, and free from any restriction on transfer,
and none of such shares has been issued or transferred in violation of the
securities registration, securities disclosure or similar laws of any
jurisdiction to which such issuance or transfer may be subject. There are no
options, warrants, financing statements, calls or commitments of any character
relating to the Pledged Shares, nor are there any rights of first refusal,
voting trusts, voting agreements or similar agreements relating to the Pledged
Shares. The pledge, assignment and delivery of the Pledged Collateral pursuant
to this Agreement will create a valid first priority lien on and a first
priority perfected security interest in the Pledged Collateral and the proceeds
thereof. Appropriate financing statements will be filed in favor of the
Collateral Trustee in the offices described on Schedule II hereto.
(j) When additional Pledged Collateral of such Pledgor is
delivered to the Collateral Trustee in accordance with Section 3, such Pledgor
will be the legal and equitable owner of such Pledged Collateral free and clear
of all Liens, or rights or interests of any other Person, of every kind and
nature including any state or federal tax liens, except for the Lien created by
this Agreement; each share of stock comprising such Pledged Collateral will have
been duly authorized and validly issued and will be fully paid and
non-assessable and free from any restriction on transfer; and such Pledgor will
have legal title to such Pledged Collateral and power to pledge, assign and
deliver such Pledged Collateral in the manner contemplated by this Agreement.
(k) Such Pledgor will (i) cause each issuer of shares of stock
comprising Pledged Collateral not to issue any stock or other securities in
addition to or in substitution for the shares of stock comprising the Pledged
Collateral issued by such issuer, except for stock and other securities issued
to such Pledgor or another Pledgor and subject to this Agreement, (ii) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all additional shares of stock or other securities of each issuer of
Pledged Collateral, and (iii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all shares of stock or other equity
interest covered by Section 1(b) hereof.
(l) Each Pledgor agrees that it (i) shall not sell, assign,
transfer, pledge, mortgage, hypothecate, dispose of or encumber, or grant any
option or warrant or Lien or right with respect to, or permit any Liens to arise
with respect to, the Pledged Collateral, any of its rights in or to the Pledged
Collateral and any portion thereof, except for the pledge thereof provided for
in this Agreement, and (ii) shall not permit any issuer of shares of stock
comprising Pledged Collateral to terminate its corporate existence, to be a
party to any merger or consolidation, or to sell, lease or dispose of all or
substantially all of its assets and properties in a single transaction or series
of related transactions.
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(m) Such Pledgor has and will defend the title to the Pledged
Collateral held by it and the Liens created by this Agreement against all claims
and demands of any Person at any time claiming the Pledged Collateral or any
interest therein and will maintain and preserve such Liens until the termination
of this Agreement.
5. Further Assurances.
(a) Each Pledgor agrees that, at any time and from time to
time, at the expense of such Pledgor, it will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Collateral Trustee may reasonably request,
in order to create, maintain, perfect and protect any security interest, pledge,
or hypothecation granted or purported to be granted by this Agreement, to enable
the Collateral Trustee to exercise and enforce its rights and remedies under
this Agreement with respect to any Pledged Collateral, and to assure the
transferability by the Collateral Trustee and its successors of the Pledged
Collateral. Each Pledgor agrees that it shall notify the Collateral Trustee in
writing, at least two (2) weeks in advance of the date that it changes the
location of any office or place of business in the United States or establishes
any new office or place of business. Each Pledgor agrees that it shall not move
or establish its chief executive office in any place different from its current
location or change its state of incorporation or organization without the
Collateral Trustee's prior written consent.
(b) Subject only to the exception set forth in Section
6(a)(ii), each Pledgor shall, with respect to any investment property
constituting Pledged Collateral (i) cause the Collateral Trustee to have a first
priority security interest in and sole "control", as defined in the UCC, of such
investment property, together with all proceeds thereof, and (ii) at the
Collateral Trustee's request from time to time, each Pledgor shall instruct (and
hereby instructs) any third party holding such Pledged Collateral to obey only
the instructions and entitlement orders of the Collateral Trustee with respect
to such Pledged Collateral and any proceeds thereof. Except as the Collateral
Trustee may otherwise permit in writing, no Pledgor shall have any right to
cause the withdrawal, application or transfer of any financial assets or
security entitlements with respect to the Pledged Collateral, and no Pledgor
shall give any instructions or entitlement orders with respect to them.
(c) Without limiting the generality of the foregoing
provisions, each Pledgor agrees that upon obtaining any additional shares or
other equity interests of any issuer of the Pledged Collateral, shares or other
equity interests in the entities described in Section 1(b) or any other shares,
equity interests or other securities constituting Pledged Collateral, it shall
promptly (and in any event within two (2) Business Days) deliver to the
Collateral Trustee (i) such shares, equity interests or other securities, (ii) a
duly executed but blank stock power in the form of Schedule III, or otherwise
acceptable to Collateral Trustee, for each certificate representing such
additional Pledged Collateral, and (iii) a duly executed Pledge Agreement
Supplement in substantially the form of Schedule IV (a "Pledge Agreement
Supplement") or as may otherwise be required by the Collateral Trustee
identifying the additional shares which are pledged pursuant to this Agreement.
Each Pledgor authorizes the Collateral Trustee to attach each Pledge Agreement
Supplement to this Agreement and agrees that all shares, equity interests or
other securities listed on any Pledge Agreement Supplement delivered to the
Collateral Trustee shall for all purposes constitute Pledged Collateral.
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(d) Each Pledgor will cause to be paid before delinquency all
taxes, charges, liens and assessments at any time levied or assessed against the
Pledged Collateral held by it, or any part thereof, or against any Financial
Institution for or on account of the Pledged Collateral or the interest created
by this Agreement, and will furnish the Collateral Trustee with receipts showing
payment of such taxes and assessments at least five (5) days before the
applicable default date therefor.
(e) If the validity or priority of this Agreement or of any
rights, titles, security interests or other interests created or evidenced by
this Agreement shall be attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, each Pledgor agrees that it
will take all necessary and proper steps for the defense of such legal
proceedings. The Collateral Trustee is authorized and empowered to take such
additional steps as in its judgment and discretion may be necessary or proper
for the defense of any such legal proceedings or the protection of the validity
or priority of this Agreement and the rights, titles, security interests and
other interests created or evidenced by this Agreement, and the Secured
Obligations include all expenses so incurred of every kind and character.
(f) Regarding any proceedings relating to the Pledged
Collateral, or any portion thereof, the Collateral Trustee may participate
therein, and each Pledgor agrees that it shall from time to time deliver to the
Collateral Trustee all instruments reasonably requested by it to permit such
participation. Each Pledgor agrees that it shall, at its expense, diligently
prosecute any such proceedings and shall consult with the Collateral Trustee,
its attorneys and experts, and cooperate with them in the carrying on or defense
of any such proceedings.
6. Voting Rights; Dividends; Etc.
(a) So long as no default or event of default, however
denominated, under any Credit Document (an "Event of Default") has occurred:
(i) A Pledgor shall be entitled to exercise any and
all voting and/or other consensual rights pertaining to its
respective Pledged Collateral or any part thereof for any
purpose consistent with the terms of this Agreement or the
Credit Documents; provided, however, that such Pledgor shall
not exercise or refrain from exercising any such right with
the intent of causing a material adverse effect.
(ii) A Pledgor shall be entitled to receive and
retain any and all dividends paid in respect of the Pledged
Collateral, other than any and all:
(A) dividends paid or payable other than in
cash in respect of, and instruments and other
property received, receivable or otherwise
distributed in respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other distributions paid
or payable in cash in respect of any Pledged
Collateral in 0 connection with a partial or total
liquidation or dissolution or in connection with a
return of capital, capital surplus or
paid-in-surplus, and
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(C) cash paid, payable or otherwise
distributed in redemption of, or in exchange for, any
Pledged Collateral,
and all of the foregoing described dividends, if any, received
by any Pledgor, (i) shall be received in trust for the benefit
of the Collateral Trustee and segregated from the other
property or funds of such Pledgor and (ii) shall be forthwith
delivered to the Collateral Trustee as Pledged Collateral in
the same form as so received (with any necessary endorsement).
(iii) The Collateral Trustee shall execute and
deliver (or cause to be executed and delivered) to a 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 which it is entitled to
exercise pursuant to clause (i) above.
Regardless of a Pledgor's right described above to receive and retain
certain rights and property, such rights and property nonetheless
secure the repayment of the Secured Obligations and are a part of the
Pledged Collateral.
(b) Upon the occurrence and during the continuation of an
Event of Default and notice thereof to the Company, all rights of a Pledgor to
exercise the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 6(a)(i), and to receive all dividends
which it may be entitled to receive under Section 6(b)(ii), and the obligations
of the Collateral Trustee under Section 6(a)(iii) shall cease, and all such
rights shall thereupon become vested in the Collateral Trustee who shall
thereupon have the sole right to exercise such voting and other rights.
(c) In order to permit the Collateral Trustee to exercise the
voting and other rights which it may be entitled to exercise pursuant to Section
6(b), each Pledgor agrees that it shall, from time to time execute and deliver
to the Collateral Trustee appropriate documents and instruments as the
Collateral Trustee may request. To this end, each Pledgor hereby irrevocably
constitutes and appoints the Collateral Trustee the proxy and attorney-in-fact
of each Pledgor, with full power of substitution, to vote, and to act with
respect to, any and all Pledged Collateral standing in the name of such Pledgor
or with respect to which such Pledgor is entitled to vote and act, subject to
the understanding that such proxy may not be exercised unless an Event of
Default has occurred and is continuing. The proxy herein granted is coupled with
an interest, is irrevocable, and shall continue until payment in full in cash of
the Secured Obligations, the termination of the Credit Document Commitments.
7. Collateral Trustee's Rights and Appointed as Attorney-in-Fact. The
provisions of Article 5 of the Collateral Trust Agreement shall inure to the
benefit of Collateral Trustee in respect of this Agreement and shall be binding
upon the parties hereto. Each Pledgor hereby appoints the Collateral Trustee
such Pledgor's true and lawful attorney-in-fact, with full authority in the
place and stead of such Pledgor and in the name of such Pledgor or otherwise,
from time to time in the Collateral Trustee's discretion, subject to Section 6,
to take any action and to execute any document or instrument which the
Collateral Trustee may reasonably deem necessary or desirable to accomplish the
purposes of this Agreement, including, without
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limitation, to receive, endorse and collect all instruments made payable to such
Pledgor representing any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same. The Collateral Trustee's liability, if any, otherwise arising
under applicable law shall be limited to amounts actually received as a result
of the exercise of the powers granted to it herein. No Collateral Trustee or
Financial Institution, and no officer, director, employee or collateral trustee
of the Collateral Trustee or any Financial Institution, shall be responsible to
any Pledgor for any act or failure to act hereunder, except that any such Person
shall be responsible for its own gross negligence or willful misconduct.
8. Collateral Trustee May Perform. The Collateral Trustee is authorized
to perform, or cause performance of, any agreement contained herein in the event
that a Pledgor fails to timely perform the same, and the reasonable expenses of
the Collateral Trustee incurred in connection therewith shall be payable by such
Pledgor or by the Company. The Collateral Trustee is further authorized in its
discretion to take any other action, either on its own behalf or on behalf of a
Pledgor (and as regards actions taken on behalf of a Pledgor, this authorization
is irrevocable and is an agency coupled with an interest), as the Collateral
Trustee may elect, which the Collateral Trustee may deem necessary or
appropriate to protect and preserve the rights, titles and interests of the
Collateral Trustee hereunder. The powers conferred on the Collateral Trustee
pursuant to this Agreement are conferred solely to protect the Collateral
Trustee and Financial Institutions' interest in the Pledged Collateral and shall
not impose any duty or obligation on the Collateral Trustee or any Financial
Institution to perform any of the powers herein conferred. No exercise of any of
the rights provided for in this Agreement constitutes a retention of collateral
in satisfaction of indebtedness.
9. No Responsibility for Certain Actions; Indemnity. Neither the
Collateral Trustee nor any other Financial Institution shall have responsibility
for (a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Pledged
Collateral, whether or not the Collateral Trustee or any other Financial
Institution has or is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve any rights against any Person with respect to any
Pledged Collateral or (c) supervising, monitoring or controlling any aspect of
the character or condition of any of the Pledged Collateral or any operations
conducted in connection with it for the benefit of a Pledgor or any other
Person. Each Pledgor agrees to indemnify, defend and hold Collateral Trustee,
Financial Institutions, each of their respective shareholders, directors,
officers, agents, advisors and employees (collectively "Indemnified Parties")
harmless from and against any and all loss, liability, obligation, damage,
penalty, judgment, claim, deficiency, expense, action, suit, cost and
disbursement of any kind or nature whatsoever (including interest, penalties,
attorneys' fees and amounts paid in settlement), imposed on, incurred by or
asserted against the Indemnified Parties growing out of or resulting from this
Agreement or any transaction or event contemplated in it (except that such
indemnity shall not be paid to any Indemnified Party to the extent such loss,
etc. directly results from the gross negligence or willful misconduct of such
Indemnified Party).
10. Remedies upon Default. If any Event of Default shall have occurred
and be continuing:
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(a) The Collateral Trustee may exercise in respect of the
Pledged 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 in
default under the UCC, and, subject to applicable regulatory and legal
requirements, the Collateral Trustee may also, without notice except as
specified below, sell the Pledged 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 Collateral Trustee's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Collateral Trustee may deem
commercially reasonable. Upon consummation of any such sale, the Collateral
Trustee shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each such 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, for itself and for its successors,
receivers, trustees and assigns, and for any and all persons ever claiming any
interest in the Pledged Collateral, to the extent permitted by law, hereby
WAIVES all rights of extension, redemption, stay, valuation and appraisal, and
any similar right arising under the law of any country, which such Pledgor now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Each Pledgor agrees that, to the extent notice of
sale shall be required by law, at least 10 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 Collateral Trustee shall
not be obligated to make any sale of Pledged Collateral regardless of notice of
sale having been given. The Collateral Trustee 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 further notice, be made at the time and place to which it
was so adjourned. Each Pledgor hereby WAIVES any claims against the Collateral
Trustee arising by reason of the fact that the price at which any Pledged
Collateral may have been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if the Collateral Trustee
accepts the first offer received and does not offer such Pledged Collateral to
more than one offeree. At any public sale made pursuant to this Section 10, any
Financial Institution may bid for or purchase, free from any right of
redemption, stay or appraisal, and any similar right arising under the law of
any country, on the part of any Pledgor (all said rights being also hereby
WAIVED and released by each Pledgor), the Pledged Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to it from any Obligor and/or any Pledgor as a credit against
the purchase price, and it may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Pledgor therefor. For purposes hereof, (i) a written agreement to purchase the
Pledged Collateral or any portion thereof shall be treated as a sale thereof,
(ii) the Collateral Trustee shall be free to carry out such sale pursuant to
such agreement and (iii) no Pledgor shall be entitled to the return of the
Pledged Collateral or any portion thereof subject thereto, notwithstanding the
fact that after the Collateral Trustee shall have entered into such an agreement
all Events of Default shall have been remedied and the Secured Obligations paid
in full. As an alternative to exercising the power of sale herein conferred upon
it, the Collateral Trustee may proceed by a suit or suits at law or in equity to
foreclose upon the Pledged Collateral and to sell the Pledged 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 10 shall be deemed
to conform to the commercially reasonable standards as provided in the UCC. Each
Pledgor covenants and agrees that it will execute and deliver such documents and
10
take such other action as the Collateral Trustee deems necessary or advisable in
order that any such sale may be made in compliance with applicable law.
(b) The Collateral Trustee shall have all the rights of a
secured party after default under the UCC and in conjunction with and in
addition to such rights and remedies:
(i) it shall not be necessary that the Pledged
Collateral or any part thereof be present at the location of
any sale pursuant to the provisions of this Section 10;
(ii) to the extent the sale of Pledged Collateral is
insufficient to satisfy the Secured Obligations, the Obligors
shall remain liable for any deficiency;
(iii) the sale by the Collateral Trustee of less than
the whole of the Pledged Collateral shall not exhaust the
rights of the Collateral Trustee hereunder, and the Collateral
Trustee is specifically empowered to make successive sale or
sales hereunder until the whole of the Pledged Collateral
shall be sold; and, if the proceeds of such sale of less than
the whole of the Pledged Collateral shall be less than the
aggregate of the Secured Obligations, this Agreement and the
security interest created hereby shall remain in full force
and effect as to the unsold portion of the Pledged Collateral
just as though no sale had been made;
(iv) in the event any sale hereunder is not completed
or is defective in the opinion of the Collateral Trustee, such
sale shall not exhaust the rights of the Collateral Trustee
hereunder and the Collateral Trustee shall have the right to
cause a subsequent sale or sales to be made hereunder; and
(v) demand of performance, advertisement and presence
of property at sale are hereby WAIVED and the Collateral
Trustee is hereby authorized to sell hereunder any financial
asset it may hold as security for the Secured Obligations. All
demands and presentments of any kind or nature are expressly,
WAIVED by each Pledgor. Each Pledgor hereby WAIVES the right
to require the Collateral Trustee to pursue any other remedy
for the benefit of such Pledgor and agrees that Collateral
Trustee may proceed against any Person for the amount of the
Secured Obligations owed to the Collateral Trustee without
taking any action against any other Person and without selling
or otherwise proceeding against or applying any of the Pledged
Collateral in the Collateral Trustee's possession.
(c) Each Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933 and applicable state
securities laws, the Collateral Trustee may be compelled, with respect to any
sale of all or any part of the Pledged Collateral, to limit purchasers to those
who will 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 sale may result in
prices and other terms less favorable to the seller than if such sale were a
public sale without such restrictions and agrees that such circumstances shall
not be a factor in determining whether such sale has been made in a commercially
reasonable manner. The Collateral Trustee shall be under no obligation to delay
11
the sale of any of the Pledged Collateral for the period of time necessary to
permit any Pledgor to register such securities for public sale under the
Securities Act of 1933, or under applicable state securities laws, even if a
Pledgor would agree to do so.
(d) If the Collateral Trustee determines to exercise its right
to sell any or all of the Pledged Collateral, upon written request, each Pledgor
shall, and shall cause each of its Subsidiaries to, from time to time, furnish
to the Collateral Trustee all such information as the Collateral Trustee may
reasonably request in order to determine the number of shares and other
instruments included in the Pledged Collateral which may be sold by the
Collateral Trustee as exempt transactions under the Securities Act of 1933 and
rules of the Securities and Exchange Commission thereunder, as the same are from
time to time in effect.
(e) Any cash held by the Collateral Trustee as Pledged
Collateral and all cash proceeds received by the Collateral Trustee in respect
of any sale of, collection from, or other realization upon all or any part of
the Pledged Collateral shall be at Collateral Trustee's discretion either held
as Pledged Collateral or applied by the Collateral Trustee to the Secured
Obligations in the manner determined by Collateral Trustee in its sole
discretion.
(f) All remedies herein expressly provided for are cumulative
of any and all other remedies existing at law or in equity and are cumulative of
any and all other remedies provided for in any other instrument securing the
payment of the Secured Obligations, or any part thereof, or otherwise benefiting
the Financial Institutions, and the resort to any remedy provided for hereunder
or under any such other instrument or provided for by law shall not prevent the
concurrent or subsequent employment of any other appropriate remedy or remedies.
(g) The Financial Institutions may resort to any security
given by this Agreement or to any other security now existing or hereafter given
to secure the payment of the Secured Obligations, in whole or in part, and in
such portions and in such order as may seem best to such Financial Institution
in its sole and uncontrolled discretion, and any such action shall not in
anywise be considered as a waiver of any of the rights, benefits or security
interests evidenced by this Agreement.
11. Expenses. Each Pledgor agrees that it will upon demand pay to the
Collateral Trustee the amount of any and all reasonable costs, disbursements and
expenses of every character, including without limitation the reasonable fees
and expenses of its counsel (including the reasonable allocated cost of in house
counsel), and of any experts, incurred or expended by the Collateral Trustee
from time to time in connection with: (a) the preparation, negotiation,
documentation, closing, renewal, revision, modification, renegotiation or review
of this Agreement; (b) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged Collateral, (c)
the exercise or enforcement of any of the rights of the Collateral Trustee or
any other Financial Institution hereunder, or (d) the failure by a Pledgor to
perform or observe any of the provisions hereof.
12. Amendments, Etc. Any amendment or waiver to this Agreement or any
provision hereof shall only be effective to the extent such amendment or waiver
(a) complies with all requirements of an amendment to the Collateral Trust
Agreement including those requirements set forth in Section 6.2 of the
Collateral Trust Agreement and (b) is executed by the Persons that
12
would be required to execute a like amendment of the Collateral Trust Agreement.
Furthermore, all amendments and waivers to this Agreement will be subject to the
limitations and restrictions applicable to amendments and waivers of the
Collateral Trust Agreement. The waiver of any default may be made without
waiving any other prior or subsequent default, and the Collateral Trustee may
remedy any default, without waiving the default remedied. The failure by the
Collateral Trustee to exercise any right, power or remedy upon any default shall
not be construed as a waiver of such default or as a waiver of the right to
exercise any such right, power or remedy at a later date. No single or partial
exercise by the Collateral Trustee of any right, power or remedy hereunder shall
exhaust the same or shall preclude any other or further exercise thereof, and
every such right, power or remedy hereunder may be exercised at any time and
from time to time. No notice to nor demand on a Pledgor in any case shall of
itself entitle a Pledgor to any other or further notice or demand in similar or
other circumstances. Acceptance by the Collateral Trustee of any payment in an
amount less than the amount then due on the Secured Obligations shall be deemed
an acceptance on account only and shall not in any way affect the existence of a
default hereunder. No waiver, release, consent by Collateral Trustee pursuant to
this Agreement shall affect or impair the rights of a Financial Institution
against any third party, except to the extent specifically agreed to by such
Financial Institution in such writing.
13. Address for Notices. Except as otherwise specified herein, all
notices, requests, demands, consents, instructions or other communications
hereunder shall be given in accordance with the terms of Section 6.4 of the
Collateral Trust Agreement; however, any notice to a Pledgor shall be effective
if delivered to the Company.
14. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until termination of the Credit Document Commitments and
payment in full in cash of the Secured Obligations; (b) continue to be effective
or be reinstated, as the case may be, if at any time payment and performance of
the Secured Obligations is rescinded or reduced in amount, or must otherwise be
restored by the Collateral Trustee or any other Financial Institution upon the
insolvency, bankruptcy, or reorganization of the Company or otherwise, all as
though such payment had not been made; (c) be binding upon each Pledgor, its
successors and assigns, and any trustee, receiver, or conservator of a Pledgor,
and any successors in interest of a Pledgor in and to all or any part of the
Pledged Collateral; and (d) inure, together with the rights and remedies of the
Collateral Trustee hereunder, to the benefit of the Collateral Trustee, the
other Financial Institutions and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (d), the
Collateral Trustee and/or any Financial Institution may assign or otherwise
transfer its rights and obligations under the Credit Documents to any other
Person or entity, and such other Person or entity shall thereupon become vested
with all the benefits in respect thereof granted to such Collateral Trustee
and/or Financial Institution herein or otherwise. Upon the completion of both
(i) the termination of the Credit Document Commitments and (ii) the payment in
full in cash of the Secured Obligations, the Company shall be entitled to the
return, upon its request and at its expense, of such of the Pledged Collateral
as shall not have been sold or otherwise applied pursuant to the terms hereof.
15. Security Interest and Obligations Absolute. Each Pledgor agrees
that it will perform its obligations hereunder strictly in accordance with the
terms of this Agreement regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting
13
any of such terms or the rights of any of the Financial Institutions with
respect thereto. The obligations of each Pledgor under this Agreement are
independent of the obligations of the Company, any other Pledgor or any other
Person, and a separate action or actions may be brought and prosecuted against
any one or more Pledgors to enforce this Agreement, irrespective of whether any
action is brought against the Company, any other Pledgor or any other Person or
whether the Company, any other Pledgor or any other Person is joined in any such
action or actions. All rights and security interests of the Financial
Institutions hereunder, and all obligations of each Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the
Credit Documents or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any other
amendment, renewal or waiver of or any consent to any departure from any of the
Credit Documents, including, without limitation, any extension of the term and
any increase in the Secured Obligations or any other liabilities resulting from
the extension of additional credit or otherwise;
(c) any taking, exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations or any
other liability;
(d) any manner of application of collateral, or proceeds
thereof or of collections on account of any guaranty, to all or any of the
Secured Obligations or any other liabilities, or any manner of sale or other
disposition of any collateral for all or any of the Secured Obligations or any
other liabilities or of any other assets of the Company or any other Person;
(e) any liquidation, dissolution or termination of existence
of, or other change in, the Company or any other Person;
(f) any bankruptcy, insolvency, receivership or other
proceeding involving the Company or any other Person or any defense that may
arise in connection with or as a result of any such bankruptcy, insolvency,
receivership or other proceeding or otherwise;
(g) any indulgence, moratorium or release granted by any
Financial Institution, including but not limited to (i) any renewal, extension
or modification which a Financial Institution may grant with respect to the
Secured Obligations, (ii) any surrender, compromise, release, renewal,
extension, exchange or substitution which a Financial Institution may grant in
respect of any item securing the Secured Obligations, or any part thereof or any
interest therein, or (iii) any release or indulgence granted to any endorser,
guarantor or surety of the Secured Obligations; or
(h) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Company, any Pledgor, a third party
pledgor or any other Person.
16. Right of Set-off.
14
(a) Upon the occurrence and during the continuation of any
Event of Default, each Financial Institution is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
Financial Institution to or for the credit or the account of a Pledgor against
any and all of the Secured Obligations, irrespective of whether or not such
Financial Institution shall have made any demand under this Agreement and
although such Secured Obligations may be contingent and unmatured. Each
Financial Institution which sets-off pursuant to this Section 16(a) shall give
prompt notice to the Company following the occurrence thereof; provided that the
failure to give such notice shall not affect the validity of the set-off.
(b) Any payment obtained by any Financial Institution pursuant
to Section 16(a) (or in any other manner directly from a Pledgor) shall be
remitted to the Collateral Trustee and the Collateral Trustee shall, at the
Collateral Trustee's discretion, either hold such payment as Pledged Collateral
or apply it to the Secured Obligations in the manner determined by the
Collateral Trustee in its sole discretion.
17. Severability. Any provision hereof 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 without affecting the validity or enforceability
of any provision in any other jurisdiction.
18. Waiver of Jury Trial. THE PLEDGORS, THE COLLATERAL TRUSTEE, AND THE
FINANCIAL INSTITUTIONS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY.
19. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. Unless otherwise defined herein or in
the in the Credit Agreement dated as of July 31, 2002, among the Company and the
Financial Institutions named therein, terms defined in Articles 8 and 9 of the
New York UCC are used herein as therein defined.
(b) ANY LITIGATION BASED HEREON, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE COLLATERAL
TRUSTEE, THE FINANCIAL INSTITUTIONS OR THE PLEDGORS IN CONNECTION HEREWITH MAY
BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE COLLATERAL TRUSTEE'S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH
PLEDGOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK
AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 6.4 OF THE COLLATERAL TRUST
AGREEMENT. EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT
15
FORUM. TO THE EXTENT THAT ANY PLEDGOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH PLEDGOR
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
(c) THIS AGREEMENT TOGETHER WITH THE OTHER CREDIT DOCUMENTS EMBODIES
THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE PARTIES WITH RESPECT TO ITS
SUBJECT MATTER AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO SUCH SUBJECT
MATTER.
20. Counterpart. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original for all purposes;
but such counterparts shall be deemed to constitute but one and the same
instrument.
21. Waiver. Each Pledgor hereby waives promptness, diligence, notice of
acceptance and any other notice (except notices expressly required to be given
to such Pledgor under this Agreement) with respect to any of the Secured
Obligations and this Agreement and any requirement that any of the Financial
Institutions protect, secure, perfect or insure any security interest or other
Lien or any property subject thereto or exhaust any right to take any action
against the Company or any other Person or any collateral.
22. Subrogation and Other Rights to Repayment. Each Pledgor irrevocably
WAIVES any and all rights to which it may be entitled (by operation of law or
otherwise) by performing its obligations under this Agreement (i) to be
subrogated to the rights of any Financial Institution against the Company or
(ii) to receive any payment, in the nature of contribution or for any other
reason, from the Company. If any amount shall be paid to any Pledgor on account
of such subrogation rights or the Pledgor receives any such payment referred to
in clause (ii) above, such Pledgor agrees to hold such amount of such payment,
as the case may be, in trust for the benefit of the Financial Institutions, and
such Pledgor agrees to forthwith pay such amount or such payment, as the case
may be, to the Collateral Trustee to be credited against and applied upon the
Secured Obligations, whether matured or unmatured, in such order as may be
determined by the Collateral Trustee in its sole discretion.
23. Subordination. Each Pledgor hereby expressly covenants and agrees
for the benefit of the Financial Institutions that all obligations and
liabilities of the Obligors or other Pledgors to such Pledgor of whatsoever
description (including, without limitation, all intercompany receivables of such
Pledgor from each of the Obligors or other Pledgors) shall be subordinated and
junior in right of payment to the Secured Obligations. Following the occurrence
of an Event of Default, all indebtedness of the Obligors or other Pledgors to
such Pledgor shall be collected and received by such Pledgor as trustee for the
Financial Institutions and paid over to the Financial Institutions, or any one
or more of them, as the case may be, on account of the Secured Obligations, but
without reducing or affecting in any manner the obligations of such Pledgor
under this Agreement.
24. Incorporated Definitions. All defined terms that are incorporated
from other agreements into this Agreement by reference shall have the meanings
assigned to such terms as
16
of the date hereof but shall not be modified by any subsequent amendment or
modification that takes place after the date hereof unless consented to by the
parties hereto.
17
IN WITNESS WHEREOF, the Pledgors caused this Agreement to be duly executed and
delivered by their respective officers or representatives thereunto duly
authorized as of the date first above written.
PLEDGORS:
[SEE ATTACHED CHART.]
Agreed to:
CITIBANK, N.A., AS COLLATERAL TRUSTEE
By: /s/ J. Xxxxxxxxxxx Xxxxx
---------------------------------------
Name:
-------------------------------------
Title: Vice President
------------------------------------
[SIGNATURE PAGE TO PLEDGE AGREEMENT]
By signing below, each of the following Obligors (the equity interests or shares
of which constitute Pledged Shares hereunder) confirms that an executed copy of
this Agreement has been submitted to it and acknowledges the above pledge of the
Pledged Collateral.
OBLIGORS:
[SEE ATTACHED CHART.]
[SIGNATURE PAGE TO PLEDGE AGREEMENT]
SCHEDULE I
TO PLEDGE AGREEMENT
SCHEDULE OF PLEDGED SHARES
PERCENT OF
STATE OF TOTAL EQUITY
ORGANIZATION STOCK INTERESTS
PLEDGED (PLEDGED CLASS OF CERTIFICATE PAR NUMBER OF OWNED BY
PLEDGOR SUBSIDIARY SUBSIDIARY) STOCK NO. VALUE SHARES PLEDGOR*
------- ---------- ------------ -------- ----------- ----- --------- -------------
The Xxxxxxxx Xxxxxxxx Energy DE N/A N/A N/A N/A 100%
Companies, Inc. Services, L.L.C.
Xxxxxxxx DE Common 1 100 10 100%
Natural Gas
Liquids, Inc.
Xxxxxxxx DE Common 2 1.00 1,000 100%
Midstream
Natural Gas
Liquids, Inc.
Xxxxxxxx DE Common 1 1.00 1,000 100%
Express, Inc.
(DE)
Xxxxxxxx Energy Xxxxxxxx Field DE Common 5 1.00 1,000 100%
Services, L.L.C. Services Group,
Inc.
Xxxxxxxx Alaska DE N/A N/A N/A N/A 100%
Pipeline
Company, L.L.C.
Xxxxxxxx XX X/X X/X X/X X/X 100%
Bio-Energy,
L.L.C.
Xxxxxxxx DE Common 3 1.00 1,000 100%
Merchant
Services
Company, Inc.
Mapco, Inc. DE Common 1 10.00 100 100%
Xxxxxxxx XX X/X X/X X/X X/X 100%
Production
Company, L.L.C.
Xxxxxxxx XX, LLC DE N/A N/A N/A N/A [99.8]%
Xxxxxxxx Energy DE N/A N/A N/A N/A [19.3]%
Partners, X.X.
Xxxxxxxx Field Black Marlin TX Common 16 0.10 44,800 100%
Services Group, Pipeline Company
Inc.
WFS DE Common 1 0.00 100 100%
Enterprises,
Inc.
WFS-Liquids DE Common 12 1.00 100 100%
Company
Xxxxxxxx Field DE Common 4 1.00 1,000 100%
Services Company
Xxxxxxxx Gas DE Common 2 1.00 1,000 100%
Processing
Company
Xxxxxxxx Gas DE Common 5 1.00 1,000 100%
Processing -
Wamsutter
Company
North Padre DE Common 1 1.00 1,000 100%
Island
Spindown, Inc.
Xxxxxxxx Xxxxxxxx Energy DE Common 7 1.00 1,000 100%
Merchant Marketing &
Services Trading Company
Company, Inc.
Xxxxxxxx Energy Xxxxxxxxxxx XX X/X X/X X/X X/X 100%
Marketing & Generation,
Trading Company L.L.C.
Xxxxxxx XX X/X X/X X/X X/X 100%
Generation,
L.L.C.
Mapco, Inc. Gas Supply, DE N/A N/A N/A N/A 100%
L.L.C.
Xxxxxxxx Natural Juarez Pipeline DE Common 2 1.00 1,000 100%
Gas Liquids, Inc. Company
MAPL DE Common 2 1.00 1,000 100%
Investments,
Inc.
WFS-NGL DE Common 3 1.00 1,000 100%
Pipeline
Company, Inc.
Xxxxxxxx XX, LLC DE N/A N/A N/A N/A [0.2]%
Xxxxxxxx Energy DE N/A N/A N/A N/A [5.1%]
Partners, L.P.
WFS-NGL Pipeline WILPRISE DE N/A N/A N/A N/A 37.35%
Company, Inc. Pipeline
Company,
L.L.C.**
Tri-States NGL DE N/A N/A N/A N/A 16.67%
Pipeline,
L.L.C.**
Juarez Pipeline Rio Grande DE N/A N/A N/A N/A 45%
Company Pipeline
Company**
Xxxxxxxx Baton Rouge DE N/A N/A N/A N/A 27.5%
Midstream Fractionators,
Natural Gas L.L.C.**
Liquids, Inc.
Xxxxxxxx Xxxxxxxx AK Common 1 1.00 1,000 100%
Express, Inc. Express, Inc.
(DE) (AK)
Xxxxxxxx XX X/X X/X X/X X/X 100%
Refining &
Marketing,
L.L.C.
Xxxxxxxx Alaska AK Common 1 1.00 1,000 100%
Petroleum, Inc.
Xxxxxxxx Alaska Xxxxxxxx Alaska AK N/A N/A N/A N/A 100%
Petroleum, Inc. Air Cargo
Properties,
L.L.C.
Xxxxxxxx Xxxxxxxx XX X/X X/X X/X X/X 100%
Olefins, L.L.C. Olefins
Feedstock
Pipelines,
L.L.C.
Xxxxxxxx Xxxxxxxx XX X/X X/X X/X X/X 100%
Refining & Olefins, L.L.C.
Marketing, L.L.C.
Xxxxxxxx XX X/X X/X X/X X/X 100%
Generating
Memphis, LLC
Xxxxxxxx DE Common 3 1.00 1,000 100%
Memphis
Terminal, Inc.
Xxxxxxxx DE Common 4 1.00 1,000 100%
Petroleum
Pipeline
Systems, Inc.
Xxxxxxxx Xxxxxxxx DE Common 2 1.00 1,000 100%
Bio-Energy, Ethanol
L.L.C. Services, Inc.
Xxxxxxxx XX X/X X/X X/X X/X 74.9%
Energy, L.L.C.**
WFS Enterprises, Xxxxxxxx Field DE N/A N/A N/A N/A 99%
Inc. Services-Gulf
Coast Company,
X.X.
Xxxxxxxx Field Xxxxxxxx Field DE N/A N/A N/A N/A 1%
Services Company Services-Gulf
Coast Company,
L.P.
WFS-Liquids WFS-Offshore DE Common 5 0.00 100 100%
Company Gathering
Company
Xxxxxxxx Xxxxxxxx DE N/A N/A N/A N/A 100%
Petroleum Mid-South
Pipeline Pipelines, LLC
Systems, Inc.
* Each Pledgor is pledging all of the equity interests it owns or hereafter
acquires in each of its pledged Subsidiaries. This column indicates the percent
of total equity interests in the pledged Subsidiary owned by this Pledgor as of
the date of this Agreement.
** Pledgor's pledge of the equity interests in this Subsidiary shall not be
effective until Pledgor has obtained all necessary consents in connection with
such pledge, as more fully described on Schedule XII of the Credit Agreement.
SCHEDULE II
TO
PLEDGE AGREEMENT
UCC FILING OFFICES
UCC Central Filing Offices of the Secretary of
Entity State for the Following States
------ -----------------------------------------------
A. Black Marlin Pipeline Company TX
B. Gas Supply, L.L.C. DE
X. Xxxxxx Pipeline Company DE
D. Mapco, Inc. DE
E. MAPL Investments, Inc. DE
F. Memphis Generation, L.L.C. DE
G. North Padre Island Spindown, Inc. DE
H. The Xxxxxxxx Companies, Inc. DE
I. WFS - NGL Pipeline Company, Inc. DE
J. WFS Enterprises, Inc. DE
K. WFS Offshore Gathering Company DE
L. WFS-Liquids Company DE
X. Xxxxxxxx Alaska Air Cargo Properties, L.L.C. AK
X. Xxxxxxxx Alaska Petroleum, Inc. AK
X. Xxxxxxxx Alaska Pipeline Company, L.L.C. DE
UCC Central Filing Offices of the Secretary of
Entity State for the Following States
------ -----------------------------------------------
X. Xxxxxxxx Bio-Energy, L.L.C. DE
X. Xxxxxxxx Energy Marketing & Trading Company DE
X. Xxxxxxxx Energy Services, L.L.C DE
X. Xxxxxxxx Ethanol Services, Inc. DE
X. Xxxxxxxx Express, Inc. (AK) AK
X. Xxxxxxxx Express, Inc. (DE) DE
X. Xxxxxxxx Field Services Company DE
X. Xxxxxxxx Field Services Group, Inc. DE
X. Xxxxxxxx Field Services-Gulf Coast Company, DE
L.P.
Y. Xxxxxxxx Gas Processing Company DE
X. Xxxxxxxx Gas Processing -Wamsutter Company DE
AA. Xxxxxxxx Generating Memphis, LLC DE
BB. Xxxxxxxx XX, LLC DE
CC. Xxxxxxxx Memphis Terminal, Inc. DE
DD. Xxxxxxxx Merchant Services Company, Inc DE
UCC Central Filing Offices of the Secretary of
Entity State for the Following States
------ -----------------------------------------------
EE. Xxxxxxxx Mid-South Pipelines, LLC DE
FF. Xxxxxxxx Midstream Natural Gas Liquids, Inc. DE
GG. Xxxxxxxx Natural Gas Liquids, Inc. DE
HH. Xxxxxxxx Olefins Feedstock Pipelines, L.L.C. DE
II. Xxxxxxxx Olefins, L.L.C. DE
JJ. Xxxxxxxx Petroleum Pipeline Systems, Inc.
KK. Xxxxxxxx Production Company, L.L.C. DE
LL. Xxxxxxxx Refining & Marketing, L.L.C. DE
MM. Worthington Generation, L.L.C. DE
SCHEDULE III
TO PLEDGE AGREEMENT
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, ____________________________________.
("Transferor") does hereby sell, assign and transfer to ___________________
___________ (_____) shares of the Common Stock, par value $______ per share of
__________________________________, ____ a _______________ ________________ (the
"Company"), represented by Certificate No. __ (the "Shares"). Transferor hereby
irrevocably constitutes and appoints the Company as Attorney-in-fact to transfer
the foregoing Shares on the books of the Company, with full power of
substitution in the premises, and ratifies and confirms all lawful actions taken
by said attorney-in-fact by virtue hereof.
The Shares are owned beneficially and of record by the undersigned,
free and clear of all liens, security interests, claims, charges, encumbrances
and rights of others.
Executed this ___ day of _______, 20__
By:
---------------------------------
Name:
-------------------------------
SCHEDULE IV
TO
PLEDGE AGREEMENT
PLEDGE AGREEMENT SUPPLEMENT
This Pledge Agreement Supplement, dated as of _____________________,
_____, is delivered pursuant to either Section 3 or Section 5 of the Pledge
Agreement referred to below. The undersigned hereby agrees that this Pledge
Agreement Supplement may be attached to the Pledge Agreement dated as of July
31, 2002 (the "Pledge Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and between the
undersigned and Citibank, N.A., as collateral trustee, for the benefit of the
holders of the Secured Obligations. This instrument and each issue arising
hereunder shall be governed by, and construed in accordance with, the laws of
the State of
New York (excluding its conflict of laws principles). This choice
of
New York law has been made pursuant to Section 5-1401 of the General
Obligations Law of the State of
New York.
The undersigned agrees that the securities listed below shall for all
purposes constitute Pledged Collateral and shall be subject to the security
interest created by the Pledge Agreement.
The undersigned hereby certifies that the representations and
warranties set forth in Section 4 of the Pledge Agreement are true and correct
as to the Pledged Collateral listed herein on and as of the date hereof.
[PLEDGOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
State or Class Stock Percentage
Name of Country or of Certificate of Par Number
Subsidiary Organization Stock No(s). Ownership Value of Shares
---------- ------------ ----- ------ --------- ----- ---------
By signing below, _____________________________ confirms that an executed copy
of the Pledge Agreement dated as of July 31, 2002 among The Xxxxxxxx Companies,
Inc., and each of the Subsidiaries which is a signatory thereto or which
subsequently became a party thereto in accordance with the terms thereof, in
favor of Citibank, N.A., as collateral trustee, together with this Pledge
Agreement Supplement, has been submitted to it and acknowledges the above pledge
of the Pledged Collateral.
[NAME OF COMPANY IN WHICH
SHARES ARE PLEDGED]
a [jurisdiction and form of organization]
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
SCHEDULE V
TO
PLEDGE AGREEMENT
CREDIT DOCUMENTS
1. That Credit Agreement dated as of July 31, 2002 (as amended, modified,
supplemented or restated from time to time), by and among the Company together
with Citicorp USA, Inc., as agent and collateral agent, Bank of America N. A. as
syndication agent, Citibank, N.A. and Bank of America N.A. as issuing bank,
Xxxxxxx Xxxxx Barney Inc. as L/C Arranger, and the banks named therein.
2. The Company; Northwest Pipeline Corporation, a Delaware corporation;
Transcontinental Gas Pipe Line Corporation, a Delaware corporation; and Texas
Gas Transmission Corporation, a Delaware corporation, as the borrowers, have
entered into a Credit Agreement dated July 25, 2000, as amended, together with
the banks named therein, and The Chase Manhattan Bank and Commerzbank AG as
co-syndication agents, and Credit Lyonnais
New York Branch as documentation
agent and Citibank, N.A., as agent, and Xxxxxxx Xxxxx Xxxxxx, as Arranger.
3 Indenture between MAPCO, Inc., as Issuer, and Bankers Trust Company, as
Trustee dated March 31, 1990.
4 Indenture between Transco Energy Company, as Issuer, and The Bank of
New York,
as Trustee, dated May 1, 1990.
All documents, instruments, agreements, certificates and notices at any
time executed and/or delivered in connection with any of the foregoing Credit
Documents.
PLEDGORS TO THE PLEDGE AGREEMENT:
Xxxxxx Pipeline Company
Mapco, Inc.
The Xxxxxxxx Companies, Inc.
WFS Enterprises, Inc.
WFS-Liquids Company
WFS-NGL Pipeline Company Inc.
Xxxxxxxx Alaska Petroleum, Inc.
Xxxxxxxx Alaska Pipeline Company, L.L.C.
Xxxxxxxx Bio-Energy, L.L.C.
Xxxxxxxx Energy Marketing & Trading Company
Xxxxxxxx Energy Services, L.L.C.
Xxxxxxxx Express, Inc. [DE]
Xxxxxxxx Field Services Company
Xxxxxxxx Field Services Group, Inc.
Xxxxxxxx Merchant Services Company, Inc.
Xxxxxxxx Midstream Natural Gas Liquids, Inc.
Xxxxxxxx Natural Gas Liquids, Inc.
Xxxxxxxx Olefins, L.L.C.
Xxxxxxxx Petroleum Pipeline Systems, Inc.
Xxxxxxxx Refining & Marketing, L.L.C.
PLEDGEES TO THE PLEDGE AGREEMENT:
Black Marlin Pipeline Company
Gas Supply, L.L.C.
Xxxxxx Pipeline Company
Mapco, Inc.
MAPL Investments, Inc.
Memphis Generation, L.L.C.
North Padre Island Spindown, Inc.
WFS Enterprises, Inc.
WFS-Liquids Company
WFS-NGL Pipeline Company Inc.
WFS-Offshore Gathering Company
Xxxxxxxx Alaska Air Cargo Properties, L.L.C.
Xxxxxxxx Alaska Petroleum, Inc.
Xxxxxxxx Alaska Pipeline Company, L.L.C.
Xxxxxxxx Bio-Energy, L.L.C.
Xxxxxxxx Energy Marketing & Trading Company
Xxxxxxxx Energy Services, L.L.C.
Xxxxxxxx Ethanol Services, Inc.
Xxxxxxxx Express, Inc. [AK]
Xxxxxxxx Express, Inc. [DE]
Xxxxxxxx Field Services Company
Xxxxxxxx Field Services Group, Inc.
Xxxxxxxx Field Services-Gulf Coast Company, X.X.
Xxxxxxxx Gas Processing-Wamsutter Company
Xxxxxxxx Gas Processing Company
Xxxxxxxx Generating Memphis, LLC
Xxxxxxxx XX, LLC
Xxxxxxxx Memphis Terminal, Inc.
Xxxxxxxx Merchant Services Company, Inc.
Xxxxxxxx Mid-South Pipelines, LLC
Xxxxxxxx Midstream Natural Gas Liquids, Inc.
Xxxxxxxx Natural Gas Liquids, Inc.
Xxxxxxxx Olefins Feedstock Pipelines, L.L.C.
Xxxxxxxx Olefins, L.L.C.
Xxxxxxxx Production Company, L.L.C.
Xxxxxxxx Refining & Marketing, L.L.C.
Worthington Generation, L.L.C.
