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EXHIBIT 4.8
AMENDED AND RESTATED PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT (this "AGREEMENT")
dated as of February 9, 1999, is made between Brooke (Overseas) Ltd. (the
"PLEDGOR") and U.S. BANK TRUST NATIONAL ASSOCIATION (f/k/a First Trust National
Association), a national banking association, as the collateral agent (in such
capacity, the "COLLATERAL AGENT") for the Participating Holders pursuant to the
Collateral Agency Agreement referred to below, and amends and restates each of
(i) the Pledge Agreement, dated as of March 2, 1998, between the Pledgor and AIF
II, L.P., a Delaware limited partnership ("AIF") and (ii) the Pledge Agreement,
dated as of March 2, 1998, between the Pledgor and Artemis America Partnership,
a Delaware limited partnership ("AAP" and, collectively with AIF, the
"PARTICIPATING HOLDERS", which term shall include all future holders of Modified
Notes).
R E C I T A L S:
WHEREAS, BGLS Inc., a Delaware corporation (the "COMPANY"),
has entered into the Indenture (as amended, modified, supplemented and in effect
from time to time, the "INDENTURE") dated as of January 1, 1996 between the
Company and State Street Bank and Trust Company, as trustee (the "TRUSTEE");
WHEREAS, pursuant to the terms and conditions of the Amended
and Restated Standstill Agreement dated as of even date herewith among the
Company and the Participating Holders (the "STANDSTILL AGREEMENT"), the
Participating Holders have agreed to defer the payment of interest due to the
Participating Holders under the Indenture until the occurrence of a Termination
Event (as defined in the Standstill Agreement);
WHEREAS, the Issuer has elected pursuant to Section 8103 of
the Delaware Commercial Code to treat interests in the Issuer as securities
which may be perfected through possession of the security;
WHEREAS, the Participating Holders, the Collateral Agent and
the Pledgor have entered into the Collateral Agency Agreement, dated as of the
date hereof (the "COLLATERAL AGENCY AGREEMENT"), pursuant to which the
Participating Holders have appointed the Collateral Agent to act on their behalf
in accordance with the provisions thereof and this Agreement;
WHEREAS, it is a condition to the Participating Holders
entering into the Standstill Agreement that the Pledgor shall (i) guarantee for
the benefit of the Participating Holders the Guaranteed Obligations (as defined
in the Limited Recourse Guarantee) and (ii) pledge the Collateral (as defined
below) to the Collateral Agent to secure such guarantee; and
NOW, THEREFORE, to induce the Participating Holders to enter
into the Standstill Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Pledgor has
agreed to pledge the Collateral upon the terms and conditions of this Agreement.
Accordingly, the parties hereto agree as follows:
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SECTION 1. DEFINITIONS AND INTERPRETATION.
1.01 CERTAIN DEFINED TERMS.
(a) Each capitalized term used in this Agreement and not
defined in this Agreement shall have the meaning assigned to such term (whether
directly or by reference to another agreement or document) in the Indenture, the
Collateral Agency Agreement or the Limited Recourse Guarantee. The principles of
interpretation set forth in Section 1.03 of the Indenture shall apply to this
Agreement. Unless otherwise defined in this Agreement or in the Indenture, terms
used in Article 9 of the Uniform Commercial Code (as defined below) are used in
this Agreement as defined in such Article 9.
(b) In addition, the following terms shall have the meanings
set forth below:
"COLLATERAL" shall have the meaning assigned to that term in
Section 2.01.
"EQUITY COLLATERAL" shall have the meaning assigned to that
term in Section 2.01(a).
"EQUITY RIGHTS" shall have the meaning assigned to that term
in Section 2.01(a).
"ISSUER" shall mean Western Tobacco Investments LLC, a
Delaware limited liability company.
"LIMITED RECOURSE GUARANTEE" shall mean the Amended and
Restated Limited Recourse Guarantee, dated as of the date hereof (as amended,
modified, supplemented and in effect from time to time) between the Pledgor and
the Participating Holders.
"LLC AGREEMENT" shall mean the Limited Liability Company
Agreement of Western Tobacco Investments LLC dated as of February 27, 1998
adopted and executed by the Issuer, the Pledgor and Western Realty Development
LLC.
"PLEDGED EQUITY" shall have the meaning assigned to that term
in Section 2.01(a).
"SECURED OBLIGATIONS" shall mean the Guaranteed Obligations
(as defined in the Limited Recourse Guarantee).
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial
Code as in effect in from time to time in any applicable jurisdiction.
"WESTERN REALTY LIEN" shall mean the second priority security
interest in the Collateral granted by the Pledgor to Western Realty Development
LLC, pursuant to the Pledge Agreement dated as of April 28, 1998.
SECTION 2. COLLATERAL.
2.01 GRANT. As collateral security for the prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) and
timely performance of the Secured
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Obligations, the Pledgor hereby pledges and grants to the Collateral Agent, for
the benefit of the Participating Holders, a security interest in all of the
Pledgor's right, title and interest in and to the following property, whether
now owned or acquired in the future by the Pledgor and whether now existing or
in the future coming into existence (collectively, the "COLLATERAL"):
(a) a 50.10% membership interest in the Issuer, together with
(i) each of the share certificates representing the same identified in Exhibit A
and (ii) the right, title and interest of the Pledgor with respect to such
50.10% membership interest in, to and under the LLC Agreement (the "Pledged
Equity"); and
(b) all shares, securities, moneys or property representing a
dividend on, or a distribution or return of capital in respect of any of the
Pledged Equity, resulting from a split-up, revision, reclassification or other
like change of any of the Pledged Equity or otherwise received in exchange for
any of the Pledged Equity and all subscriptions, options, warrants or other
rights of like nature (the "Equity Rights") issued to the holders of, or
otherwise in respect of, any of the Pledged Equity; and
(c) in the event of any consolidation or merger in which the
Issuer is not the surviving entity, all of the membership interest, or other
equity interests of the successor corporation or successor entity (unless such
successor entity is the Pledgor itself) formed by or resulting from such
consolidation or merger (collectively, and together with the property described
in clauses (a) and (b) above, the "Equity Collateral"); and
(d) all proceeds and products in whatever form of all or any
part of the foregoing.
2.02 PERFECTION AND REGISTRATION OF PLEDGE. Concurrently with
the execution and delivery of this Agreement, the Pledgor shall (i) deliver to
the Collateral Agent all of the certificates identified in Exhibit A,
accompanied by undated certificate powers duly executed in blank and (ii) take
all such other actions as shall be necessary or as the Collateral Agent may
reasonably request to perfect and establish the priority of the Liens granted by
this Agreement.
2.03 PRESERVATION AND PROTECTION OF SECURITY INTERESTS. The
Pledgor shall:
(a) upon the acquisition after the date of this Agreement by
the Pledgor of any Equity Collateral, promptly either (x) transfer and deliver
to the Collateral Agent all such Equity Collateral (together with, if
applicable, the certificates representing such Equity Collateral duly endorsed
in blank or accompanied by undated powers duly executed in blank or such
instruments of transfer as the Collateral Agent shall direct in its discretion
to effectuate the purposes of this Agreement) or (y) take such other action as
the Collateral Agent shall deem reasonably necessary or appropriate to perfect,
and establish the priority of, the Liens granted by this Agreement in such
Equity Collateral; and
(b) give, execute, deliver, file or record any and all
financing statements, notices, contracts, agreements or other instruments,
obtain any and all governmental approvals and take such steps as are reasonably
necessary to create, perfect, establish the priority of, or to preserve the
validity, perfection or priority of, the Liens granted by this Agreement or to
enable
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the Collateral Agent to exercise and enforce its rights, remedies, powers
and privileges under this Agreement with respect to such Liens, including
causing any or all of the Equity Collateral to be transferred of record into the
name of the Collateral Agent (and the Collateral Agent agrees that if any Equity
Collateral is transferred into its name, the Collateral Agent will thereafter
promptly give to the Pledgor copies of any notices and communications received
by it with respect to the Equity Collateral pledged by the Pledgor).
2.04 ATTORNEY-IN-FACT. Subject to the rights of the Pledgor
under Section 2.05, the Collateral Agent is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instruments as are
reasonably necessary to accomplish the purposes of this Agreement, to preserve
the validity, perfection and priority of the Liens granted by this Agreement
and, following any Termination Event, to exercise its rights, remedies, powers
and privileges under this Agreement. This appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Collateral Agent shall be entitled under this Agreement upon the
occurrence and continuation of any Termination Event (i) to ask, demand,
collect, xxx for, recover, receive and give receipt and discharge for amounts
due and to become due under and in respect of all or any part of the Collateral;
(ii) to receive, endorse and collect any drafts, instruments, documents and
chattel paper in connection with clause (i) above; (iii) to file any claims or
take any action or proceeding as is reasonably necessary for the collection of
all or any part of the Collateral; and (iv) to execute, in connection with any
sale or disposition of the Collateral under Section 5, any endorsements,
assignments, bills of sale or other instruments of conveyance or transfer with
respect to all or any part of the Collateral.
2.05 SPECIAL PROVISIONS RELATING TO EQUITY COLLATERAL.
(a) So long as no Termination Event shall have occurred and be
continuing, the Pledgor shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Equity Collateral for all
purposes not inconsistent with the terms of this Agreement; PROVIDED that the
Pledgor agrees that it will not vote the Equity Collateral in any manner that is
inconsistent with the terms of this Agreement; and the Collateral Agent shall,
at the Pledgor's expense, execute and deliver to the Pledgor or cause to be
executed and delivered to the Pledgor all such proxies, powers of attorney,
dividend or distribution and other orders and other instruments, without
recourse, as the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise the rights and powers which it is entitled to exercise
pursuant to this Section 2.05(a).
(b) So long as no Termination Event shall have occurred and be
continuing, the Pledgor shall be entitled to receive and retain any dividends or
other distributions on the Equity Collateral.
(c) If any Termination Event shall have occurred and be
continuing, and whether or not the Collateral Agent exercises any available
right to declare any Secured Obligation due and payable or seeks or pursues any
other right, remedy, power or privilege available to it under applicable law or
this Agreement, all dividends and other distributions on the Equity Collateral
shall be paid directly to the Collateral Agent as part of the Equity Collateral,
subject to the terms of this Agreement, and, if the Collateral Agent shall so
request,
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the Pledgor agrees to execute and deliver to the Collateral Agent appropriate
additional dividend, distribution and other orders and instruments to that end;
provided that if such Termination Event is cured or rescinded, any such dividend
or distribution paid to the Collateral Agent prior to such cure shall, upon
request of the Pledgor (except to the extent applied to the Secured
Obligations), be returned by the Collateral Agent to the Pledgor.
2.06 RIGHTS AND OBLIGATIONS.
(a) No reference in this Agreement to proceeds or to the sale
or other disposition of Collateral shall authorize the Pledgor to sell or
otherwise dispose of any Collateral except to the extent otherwise expressly
permitted by the terms of this Agreement.
(b) The Collateral Agent shall not be required to take steps
necessary to preserve any rights against prior parties to any part of the
Collateral.
(c) The Pledgor shall remain liable to perform its duties and
obligations under the LLC Agreement in accordance with its terms to the same
extent as if this Agreement had not been executed and delivered. The exercise by
the Collateral Agent of any right, remedy, power or privilege in respect of this
Agreement shall not release the Pledgor from any of its duties and obligations
under the LLC Agreement. The Collateral Agent shall have no duty, obligation or
liability under the LLC Agreement by reason of this Agreement.
2.07 TERMINATION. When all Secured Obligations have been
satisfied in full, this Agreement shall terminate, and the Collateral Agent
shall forthwith cause to be assigned, transferred and delivered, against receipt
but without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect of the Collateral, to or on the order
of the Pledgor.
SECTION 3. REPRESENTATIONS AND WARRANTIES. As of the date of
this Agreement, the Pledgor represents and warrants to the Collateral Agent as
follows:
3.01 TITLE. The Pledgor is the sole beneficial owner of the
Collateral in which it purports to xxxxx x Xxxx pursuant to this Agreement, and
such Collateral is free and clear of all Liens (and, with respect to the Equity
Collateral, of any Equity Right in favor of any other Person), other than the
Western Realty Liens. The Liens granted by this Agreement in favor of the
Collateral Agent for the benefit of the Participating Holders have attached and
constitute a perfected security interest in all of such Collateral prior to all
other Liens.
3.02 PLEDGED EQUITY.
(a) The Pledged Equity evidenced by the certificates
identified in Exhibit A is duly authorized, validly existing, fully paid and
nonassessable, and none of such Pledged Equity is subject to any contractual
restriction, or any restriction under the organizational documents of the Issuer
of such Pledged Equity, upon the transfer of such Pledged Equity (except for any
such restriction contained in this Agreement).
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(b) The Equity Collateral constitutes 50.10% of the total
number of membership interests or shares of each class of capital stock, as
applicable, of the Issuer currently outstanding. The attached Exhibit A
correctly identifies, as of the date of this Agreement, the membership interests
comprising such Pledged Equity and the respective percentage interest in the
Issuer as a whole. All such membership interests or shares are duly authorized,
validly issued, fully paid and nonassessable and will be free of any contractual
restriction (other than the Western Realty Lien) or any restriction under the
charter or bylaws of the Issuer of the Equity Collateral, upon the transfer of
the Equity Collateral (except for any such restriction contained in this
Agreement).
SECTION 4. COVENANTS.
4.01 BOOKS AND RECORDS. The Pledgor shall:
(a) keep full and accurate books and records relating to the
Collateral and stamp or otherwise xxxx such books and records in such manner as
the Collateral Agent may reasonably require in order to reflect the Liens
granted by this Agreement; and
(b) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, permit
representatives of the Collateral Agent to be present at the Pledgor's place of
business to receive copies of all communications and remittances relating to the
Collateral and forward copies of any notices or communications received by the
Pledgor with respect to the Collateral, all in such manner as the Collateral
Agent may reasonably request.
4.02 REMOVALS, ETC. Without at least 30 days' prior written
notice to the Collateral Agent, the Pledgor shall not (i) maintain any of its
books and records with respect to the Collateral at any office or maintain its
principal place of business at any place, other than at the address initially
indicated for notices to it under Section 6(c) or (ii) change its corporate
name, or the name under which it does business, from the name shown on the
signature pages to this Agreement.
4.03 SALES AND OTHER LIENS. Except as permitted under the
Indenture, the Pledgor shall not sell, transfer or otherwise dispose of all or
any part of the Collateral, create, incur, assume or suffer to exist any Lien
upon all or any part of the Collateral or file or suffer to be on file or
authorize to be filed, in any jurisdiction, any financing statement or like
instrument with respect to all or any part of the Collateral in which the
Collateral Agent is not named as the sole secured party for the benefit of the
Participating Holders (other than or in connection with the Western Realty
Lien).
4.04 FURTHER ASSURANCES. The Pledgor agrees that, from time to
time upon the written request of the Collateral Agent, the Pledgor will execute
and deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order fully to effect the purposes of
this Agreement.
4.05 DILUTION. The Pledgor shall cause the Equity Collateral
to constitute at all times 50.10% of the total equity interests in the Issuer.
The Pledgor shall cause all such interests
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to be duly authorized, validly issued, fully paid and nonassessable and to be
free of any contractual restriction (other than the Western Realty Lien) or any
restriction under the Limited Liability Company Agreement, upon the transfer of
such Equity Collateral.
4.06 FINANCIAL REPORTS. Within 45 days after the close of the
first three quarterly accounting periods in each fiscal year of the Pledgor, the
Pledgor shall deliver to the Collateral Agent, the unaudited financial
statements of the Pledgor and the Issuer. Within 120 days after the close of
each fiscal year, the Pledgor shall deliver to the Collateral Agent, the
financial statements of the Pledgor and the Issuer, certified by an independent
certified public accountant of recognized national standing. The Pledgor
represents and warrants that all such financial statements shall be true and
correct in all material respects.
SECTION 5. REMEDIES.
5.01 EVENTS OF DEFAULT, ETC. If a Termination Event shall have
occurred and be continuing:
(a) the Collateral Agent in its discretion may, in its name or
in the name of the Pledgor or otherwise, demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in exchange
for all or any part of the Collateral, but shall be under no obligation to do
so;
(b) the Collateral Agent in its discretion may, upon ten
business days' prior written notice to the Pledgor of the time and place and
subject to the terms of the LLC Agreement, with respect to all or any part of
the Collateral which shall then be or shall thereafter come into the possession,
custody or control of the Collateral Agent or its agents, sell, lease or
otherwise dispose of all or any part of such Collateral, at such place or places
as the Collateral Agent deems best, for cash, for credit or for future delivery
(without thereby assuming any credit risk) and at public or private sale,
without demand of performance or notice of intention to effect any such
disposition or of time or place of any such sale (except such notice as is
required above or by applicable statute and cannot be waived), and the
Collateral Agent or any other Person may be the purchaser, lessee or recipient
of any or all of the Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any right
or equity of redemption (statutory or otherwise), of the Pledgor, any such
demand, notice and right or equity being hereby expressly waived and released.
The Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned; and
(c) the Collateral Agent shall have, and in its discretion may
exercise, all of the rights, remedies, powers and privileges with respect to the
Collateral of a secured party under the Uniform Commercial Code (whether or not
the Uniform Commercial Code is in effect in the jurisdiction where such rights,
remedies, powers and privileges are asserted) and such additional rights,
remedies, powers and privileges to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights, remedies, powers and
privileges in respect of this Agreement or the Collateral may be asserted,
including the right, to the maximum extent
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permitted by law (subject to the terms of the LLC Agreement), to exercise all
voting, consensual and other powers of ownership pertaining to the Collateral as
if the Collateral Agent was the sole and absolute owner of the Collateral (and
the Pledgor agrees to take all such action as may be appropriate to give effect
to such right).
The proceeds of, and other realization upon, the Collateral by
virtue of the exercise of remedies under this Section 5.01 shall be applied in
accordance with Section 5.04.
5.02 LIMITED RECOURSE. Notwithstanding anything to the
contrary in this Agreement, the Limited Recourse Guarantee, the Standstill
Agreement, the Indenture or otherwise, the security interest granted herein
secures a limited recourse obligation and recourse for the Secured Obligations
is expressly limited solely to the Collateral Agent's and Participating Holders'
interest in the Collateral.
5.03 PRIVATE SALE.
(a) The Collateral Agent and the Participating Holders shall
incur no liability as a result of the sale, lease or other disposition of all or
any part of the Collateral at any private sale pursuant to Section 5.01
conducted in a commercially reasonable manner. The Pledgor hereby waives any
claims against the Collateral Agent or a Participating Holder arising by reason
of the fact that the price at which the Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale or was less than the aggregate amount of the Secured Obligations, even if
the Collateral Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
(b) The Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933 and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any sale
of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to distribution or resale. The Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable to the Pledgor than those obtainable through a public sale without
such restrictions, and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Collateral Agent shall have no obligation to engage in
public sales and no obligation to delay the sale of any Collateral for the
period of time necessary to permit the Issuer of the Collateral to register it
for public sale.
5.04 APPLICATION OF PROCEEDS. Except as otherwise expressly
provided in this Agreement, the proceeds of, or other realization upon, all or
any part of the Collateral by virtue of the exercise of remedies under Section
5.01, and any other cash at the time held by the Collateral Agent under this
Section 5, shall be applied by the Collateral Agent:
FIRST, to the payment of the reasonable costs and expenses of
such exercise of remedies, including reasonable out-of-pocket costs and expenses
of the Collateral Agent and the reasonable fees and expenses of its counsel;
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NEXT, to the payment in full of the remaining Secured
Obligations equally and ratably in accordance with the their respective amounts
then due and owing; and
FINALLY, to the Pledgor, or its respective successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus then
remaining.
As used in this Section 5, "PROCEEDS" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Collateral, including any property received under any bankruptcy,
reorganization or other similar proceeding as to the Pledgor or any issuer of,
or account debtor or other obligor on, any of the Collateral.
SECTION 6.MISCELLANEOUS.
(a) NO WAIVER No failure on the part of the Collateral Agent
to exercise and no delay in exercising, and no course of dealing with respect
to, any right, remedy, power or privilege under this Agreement shall operate as
a waiver of such right, remedy, power or privilege, nor shall any single or
partial exercise of any right, remedy, power or privilege under this Agreement
preclude any other or further exercise of any such right, remedy, power or
privilege or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges provided in this Agreement are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
(b) AMENDMENTS, ETC. Any provision of this Agreement may be
modified, supplemented or waived only by an instrument in writing duly executed
by the Pledgor and the Collateral Agent (with the consent of the Majority
Participating Holders). Any such modification, supplement or waiver shall be for
such period and subject to such conditions as shall be specified in the
instrument effecting the same and shall be binding upon the Collateral Agent,
each Participating Holder and the Pledgor, and any such waiver shall be
effective only in the specific instance and for the purposes for which given.
(c) ADDRESSES FOR NOTICES. All notices and other
communications required or permitted to be given or made under this Agreement
shall be given or made by mail, overnight courier or facsimile (or, unless such
notice is specifically required to be given in writing, by telephone, confirmed
in writing by facsimile by the close of business on the day notice is given) and
faxed, mailed certified or registered (return receipt requested) or sent by
overnight courier, or personally delivered (or telephoned, as the case may be)
at the address specified below or at such other address as shall be designated
in a notice in writing.
If to the Collateral Agent:
U.S. Bank Trust National Association
000 X. 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
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If to the Pledgor:
Brooke (Overseas) Ltd.
000 X.X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
000 X. Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
(d) AGREEMENTS SUPERSEDED. This Agreement amends and restates
the Pledge Agreement, dated as of March 2, 1998, between the Pledgor and AIF and
the Pledge Agreement, dated as of March 2, 1998, between the Pledgor and AAP and
supersedes all prior agreements and understandings, written or oral, among the
parties with respect to the subject matter of this Agreement except with respect
to the Consent and Agreement dated as of April 28, 1998 between the Pledgor, the
Participating Holders and Western Realty Development LLC.
(e) CAPTIONS. The captions and section headings appearing in
this Agreement are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
(f) 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 of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
(g) SUCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Pledgor, the Collateral Agent, the
Participating Holders and their respective successors and permitted transferees
or assigns, including, without limitation future holders of any Modified Notes.
The Collateral Agent shall not assign or transfer its rights under this
Agreement other than in accordance with the Collateral Agency Agreement.
(h) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Agreement may execute this Agreement
by signing any such counterpart.
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(i) Termination. This Agreement shall remain in full force and
effect until the Company delivers final payment in full in cash of all of the
Secured Obligations and all other amounts owing to the Collateral Agent and the
Participating Holders hereunder at which point it shall terminate automatically,
with all Collateral to be returned as promptly as is practicable by the
Collateral Agent to the Pledgor.
SECTION 7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
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AMENDED AND RESTATED PLEDGE AGREEMENT
IN WITNESS WHEREOF, the parties to this Agreement have caused
this Agreement to be duly executed as of the day and year first above written.
BROOKE (OVERSEAS) LTD.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
U.S. BANK TRUST NATIONAL
ASSOCIATION, AS COLLATERAL AGENT,
for the benefit of the Participating Holder
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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EXHIBIT A
PLEDGED CERTIFICATES
MEMBER MEMBERSHIP INTEREST CERTIFICATES
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Brooke (Overseas) Ltd. 28.20% 001
Brooke (Overseas) Ltd. 21.90% 002
Amended and Restated Pledge Agreement
