PLEDGE AGREEMENT among ACCO BRANDS CORPORATION, CERTAIN OTHER SUBSIDIARIES OF ACCO BRANDS CORPORATION FROM TIME TO TIME PARTY HERETO and U.S. BANK NATIONAL ASSOCIATION, as COLLATERAL TRUSTEE Dated as of September 30, 2009
EXHIBIT
4.5
EXECUTION
VERSION
among
ACCO
BRANDS CORPORATION,
CERTAIN
OTHER SUBSIDIARIES OF ACCO BRANDS CORPORATION
FROM TIME
TO TIME PARTY HERETO
and
U.S. BANK
NATIONAL ASSOCIATION,
as
COLLATERAL TRUSTEE
________________________________
Dated as
of September 30, 2009
________________________________
PLEDGE
AGREEMENT (as amended, modified, restated and/or supplemented from time to time,
this “Agreement”),
dated as of September 30, 2009, among each of the undersigned pledgors (each, a
“Pledgor”
and, together with any other entity that becomes a pledgor hereunder pursuant to
Section 30 hereof, the “Pledgors”)
and U.S. Bank National Association, as collateral trustee (together with any
successor collateral trustee, the “Collateral
Trustee” or the “Pledgee”),
for the benefit of the Secured Parties. Except as otherwise defined
herein, all capitalized terms used herein and defined in the Collateral Trust
Agreement (as defined below) shall be used herein as therein
defined.
W
I T N E S S E T H :
WHEREAS,
ACCO Brands Corporation (the “Issuer”),
the other Pledgors and U.S. Bank National Association, as trustee (together with
any successor trustee, the “Indenture
Trustee”), have entered into an Indenture, dated as of September 30, 2009
(as amended, modified, restated and/or supplemented from time to time, the
“Indenture”),
relating to the Issuer’s 10.625% Senior Secured Notes due 2015 (the “Senior
Secured Notes”);
WHEREAS,
the Issuer, the other Pledgors, the Trustee, the other representatives and
agents from time to time party thereto and the Collateral Trustee have entered
into a Collateral Trust Agreement, dated as of September 30, 2009 (as amended,
modified, restated and/or supplemented from time to time, the “Collateral
Trust Agreement”);
WHEREAS,
pursuant to the Indenture, each Guarantor party thereto has guaranteed to the
Secured Parties the payment when due of all Secured Debt
Obligations;
WHEREAS,
it is a condition precedent to the issuance of any Senior Secured Notes and any
other Series of Priority Lien Debt pursuant to the Priority Lien Documents that
each Pledgor shall have secured its obligations under the Indenture and the
other Secured Debt Documents as set forth herein and executed and delivered to
the Pledgee this Agreement; and
WHEREAS,
each Pledgor will obtain benefits from the issuance of Senior Secured Notes and
the other transactions contemplated by the Priority Lien Documents and,
accordingly, desires to execute this Agreement in order to satisfy the condition
described in the preceding paragraph;
NOW,
THEREFORE, in consideration of the foregoing and other benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Parties and hereby covenants and agrees with the
Pledgee for the benefit of the Secured Parties as follows:
1. SECURITY
FOR OBLIGATIONS. This
Agreement is made by each Pledgor for the benefit of the Secured Parties to
secure the Secured Debt Obligations.
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2. DEFINITIONS. (a) Reference
to singular terms shall include the plural and vice versa.
(b) The
following capitalized terms used herein shall have the definitions specified
below:
“Additional
Pledgor” shall have the meaning set forth in Section 30
hereof.
“Adverse
Claim” shall have the meaning given such term in Section 8-102(a)(1) of
the UCC.
“Agreement”
shall have the meaning set forth in the first paragraph hereof.
“Certificated
Security” shall have the meaning given such term in Section 8-102(a)(4)
of the UCC.
“Clearing
Corporation” shall have the meaning given such term in Section
8-102(a)(5) of the UCC.
“Collateral”
shall have the meaning set forth in Section 3.1 hereof.
“Collateral
Accounts” shall mean any and all accounts established and maintained by
the Pledgee in the name of any Pledgor to which Collateral may be credited,
including the accounts listed on Schedule 1 hereto.
“Collateral
Trust Agreement” shall have the meaning set forth in the recitals
hereto.
“Collateral
Trustee” shall have the meaning set forth in the first paragraph
hereof.
“Domestic
Corporation” shall have the meaning set forth in the definition of
“Stock.”
“Event
of Default” shall mean any Event of Default under, and as defined in, the
Indenture and any other Secured Debt Documents and shall in any event include,
without limitation, any payment default on any of the Secured Debt Obligations
after the expiration of any applicable grace period.
“Excluded
Foreign Entity” shall mean any Foreign Subsidiary of a Pledgor other than
(A) ACCO Mexicana S.A. de C.V., ACCO Brands Canada Inc. and ACCO Brands Europe
Holding LP and (B) any Foreign Subsidiary owned by a Pledgor whose Consolidated
EBITDA for the immediately preceding fiscal year multiplied by 7.0 is greater
than $42,500,000.
“Exempted
Foreign Entity” shall mean (A) any Foreign Corporation and any limited
company organized under the laws of a jurisdiction other than the United States
or any State or Territory thereof that, in any such case, is a controlled
foreign corporation for purposes of Section 957 of the Code and (B) any foreign
partnership which is owned directly by a Pledgor whose pledge of Equity
Interests would result in an indirect pledge of Equity Interests of a
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controlled
foreign corporation for purposes of Section 956 of the Code; provided
that the Pledgor provides documentation and support of such conclusion in form
and substance adequate to the Pledgee, as directed by the Secured Parties,
supporting such determination.
“Financial
Asset” shall have the meaning given such term in Section 8-102(a)(9) of
the UCC.
“Foreign
Corporation” shall have the meaning set forth in the definition of
“Stock”.
“Indemnitees”
shall have the meaning set forth in Section 11 hereof.
“Indenture”
shall have the meaning set forth in the recitals hereto.
“Indenture
Trustee” shall have the meaning set forth in the recitals
hereto.
“Instrument”
shall have the meaning given such term in Section 9-102(a)(47) of the
UCC.
“Investment
Property” shall have the meaning given such term in Section 9-102(a)(49)
of the UCC.
“Issuer”
shall have the meaning set forth in the recitals hereto.
“Limited
Liability Company Assets” shall mean all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all limited liability company capital and interest in other limited liability
companies), at any time owned by any Pledgor or represented by any Limited
Liability Company Interest.
“Limited
Liability Company Interests” shall mean the entire limited liability
company membership interest at any time owned by any Pledgor in any limited
liability company.
“Location”
of any Pledgor has the meaning given such term in Section 9-307 of the
UCC.
“Non-Voting
Equity Interests” shall mean all Equity Interests of any Person which are
not Voting Equity Interests.
“Notes”
shall mean (x) all intercompany notes at any time issued to each Pledgor and (y)
all other promissory notes from time to time issued to, or held by, each
Pledgor.
“Partnership
Assets” shall mean all assets, whether tangible or intangible and whether
real, personal or mixed (including, without limitation, all partnership capital
and interest in other partnerships), at any time owned by any Pledgor or
represented by any Partnership Interest.
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“Partnership
Interest” shall mean the entire general partnership interest or limited
partnership interest at any time owned by any Pledgor in any general partnership
or limited partnership.
“Perfection
Certificate” shall mean the Perfection Certificate, dated as of September
30, 2009 (and as amended, modified, restated and/or supplemented from time to
time, including by the execution and delivery of a Perfection Certificate
Supplement), by and among the Issuer and the other Pledgors.
“Perfection
Certificate Supplement” shall mean a supplement to the Perfection
Certificate in form and substance reasonably acceptable to the Collateral
Trustee.
“Pledged
Notes” shall mean all Notes at any time pledged or required to be pledged
hereunder.
“Pledgee”
shall have the meaning set forth in the first paragraph hereof.
“Pledgor”
shall have the meaning set forth in the first paragraph hereof.
“Proceeds”
shall have the meaning given such term in Section 9-102(a)(64) of the
UCC.
“Registered
Organization” shall have the meaning given such term in Section
9-102(a)(70) of the UCC.
“Securities
Act” shall mean the Securities Act of 1933, as amended, as in effect from
time to time.
“Securities
Intermediary” shall have the meaning given such term in Section
8-102(a)(14) of the UCC.
“Security”
and “Securities”
shall have the meaning given such term in Section 8-102(a)(15) of the UCC and
shall in any event also include all Stock.
“Security
Entitlement” shall have the meaning given such term in Section
8-102(a)(17) of the UCC.
“Senior
Secured Notes” shall have the meaning set forth in the recitals
hereto.
“Specified
Default” shall have the meaning set forth in Section 5
hereof.
“Stock”
shall mean (x) with respect to corporations incorporated under the laws of the
United States or any State or territory thereof or the District of Columbia
(each, a “Domestic
Corporation”), all of the issued and outstanding shares of capital stock
of any Domestic Corporation at any time owned by any Pledgor and (y) with
respect to corporations not Domestic Corporations (each, a “Foreign
Corporation”), all of the issued and outstanding shares of capital stock
of any Foreign Corporation at any time owned by any Pledgor.
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“Transmitting
Utility” has the meaning given such term in Section 9-102(a)(80) of the
UCC.
“UCC”
shall mean the Uniform Commercial Code as in effect in the State of
New York from time to time; provided
that all references herein to specific Sections or subsections of the UCC are
references to such Sections or subsections, as the case may be, of the Uniform
Commercial Code as in effect in the State of New York on the date
hereof.
“Uncertificated
Security” shall have the meaning given such term in Section 8-102(a)(18)
of the UCC.
“Voting
Equity Interests” of any Person shall mean all classes of Equity
Interests of such Person entitled to vote.
3. PLEDGE OF
SECURITIES, ETC.
3.1 Pledge. (a)
To secure the Secured Debt Obligations now or hereafter owed or to be performed
by the Pledgors, each Pledgor does hereby grant, pledge and assign to the
Pledgee for the benefit of the Secured Parties, and does hereby create a
continuing security interest (subject to those Liens permitted to exist with
respect to the Collateral pursuant to the terms of all Secured Debt Documents
then in effect) in favor of the Pledgee for the benefit of the Secured Parties
in, all of its right, title and interest in and to the following, whether now
existing or hereafter from time to time acquired (collectively, the “Collateral”):
(i) each of
the Collateral Accounts, including any and all assets of whatever type or kind
deposited by such Pledgor in any such Collateral Account, whether now owned or
hereafter acquired, existing or arising, including, without limitation, all
Financial Assets, Investment Property, monies, checks, drafts, Instruments,
Securities or interests therein of any type or nature deposited or required by
the Indenture or any other Secured Debt Document to be deposited in such
Collateral Account, and all investments and all certificates and other
Instruments (including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends, interest, distributions,
cash and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
foregoing;
(ii) all
Securities owned or held by such Pledgor from time to time and all options and
warrants owned by such Pledgor from time to time to purchase
Securities;
(iii) all Notes
owned or held by such Pledgor from time to time;
(iv) all
Limited Liability Company Interests owned by such Pledgor from time to time and
all of its right, title and interest in each limited liability company to which
each such Limited Liability Company Interest relates, whether now existing or
hereafter acquired, including, without limitation, to the fullest extent
permitted under the terms and provisions of the documents and agreements
governing such Limited Liability Company Interests and applicable
law:
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(A) all its
capital therein and its interest in all profits, income, surpluses, losses,
Limited Liability Company Assets and other distributions to which such Pledgor
shall at any time be entitled in respect of such Limited Liability Company
Interests;
(B) all other
payments due or to become due to such Pledgor in respect of Limited Liability
Company Interests, whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages, insurance proceeds or
otherwise;
(C) all of
its claims, rights, powers, privileges, authority, options, security interests,
liens and remedies, if any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of such Limited Liability
Company Interests;
(D) all
present and future claims, if any, of such Pledgor against any such limited
liability company for monies loaned or advanced, for services rendered or
otherwise;
(E) all of
such Pledgor’s rights under any limited liability company agreement or operating
agreement or at law to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate, cancel or modify
any such limited liability company agreement or operating agreement, to execute
any instruments and to take any and all other action on behalf of and in the
name of any of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make determinations, to
exercise any election (including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Limited Liability Company Asset, to
enforce or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
(F) all other
property hereafter delivered in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(v) all
Partnership Interests owned by such Pledgor from time to time and all of its
right, title and interest in each partnership to which each such Partnership
Interest relates, whether now existing or hereafter acquired, including, without
limitation, to the fullest extent permitted under the terms and provisions of
the documents and agreements governing such Partnership Interests and applicable
law:
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(A) all its
capital therein and its interest in all profits, income, surpluses, losses,
Partnership Assets and other distributions to which such Pledgor shall at any
time be entitled in respect of such Partnership Interests;
(B) all other
payments due or to become due to such Pledgor in respect of Partnership
Interests, whether under any partnership agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or
otherwise;
(C) all of
its claims, rights, powers, privileges, authority, options, security interests,
liens and remedies, if any, under any partnership agreement or operating
agreement, or at law or otherwise in respect of such Partnership
Interests;
(D) all
present and future claims, if any, of such Pledgor against any such partnership
for monies loaned or advanced, for services rendered or
otherwise;
(E) all of
such Pledgor’s rights under any partnership agreement or operating agreement or
at law to exercise and enforce every right, power, remedy, authority, option and
privilege of such Pledgor relating to such Partnership Interests, including any
power to terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other action on
behalf of and in the name of such Pledgor in respect of such Partnership
Interests and any such partnership, to make determinations, to exercise any
election (including, but not limited to, election of remedies) or option or to
give or receive any notice, consent, amendment, waiver or approval, together
with full power and authority to demand, receive, enforce, collect or receipt
for any of the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take any
action in connection with any of the foregoing; and
(F) all other
property hereafter delivered in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(vi) all
Financial Assets and Investment Property owned by such Pledgor from time to
time;
(vii) all
Security Entitlements owned by such Pledgor from time to time in any and all of
the foregoing; and
(viii) all
Proceeds of any and all of the foregoing;
provided
that, notwithstanding anything to the contrary in this Agreement, (w) no Pledgor
shall be required at any time to pledge hereunder Equity Interests of any
Excluded Foreign Entity, (x) no Pledgor shall be required at any time to pledge
hereunder more than 65% of the total
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combined
voting power of all classes of Voting Equity Interests of any Exempted Foreign
Entity and (y) each Pledgor shall be required to pledge hereunder 100% of the
Non-Voting Equity Interests of each Exempted Foreign Entity at any time and from
time to time acquired by such Pledgor, which Non-Voting Equity Interests shall
not be subject to the limitations described in preceding clause
(x).
(b) Notwithstanding
anything to the contrary contained in this Section 3.1 or elsewhere in this
Agreement, each Pledgor and the Pledgee (on behalf of the Secured Parties)
acknowledges and agrees that:
(i) the
security interest granted pursuant to this Agreement (including pursuant to this
Section 3.1) to the Pledgee for the benefit of the Secured Parties is subject to
the Lien priorities set forth in the Intercreditor Agreement, including, without
limitation, Section 2.01 thereof; and
(ii) the
security interests of the ABL Collateral Agent on behalf of the holders of ABL
Debt Obligations in the Collateral constitute security interests separate and
apart (and of a different class and claim) from the security interests of the
Pledgee on behalf of the Secured Parties in the Collateral.
3.2 Procedures. (a) To
the extent that any Pledgor at any time or from time to time owns, acquires or
obtains any right, title or interest in any Collateral, such Collateral shall
automatically (and without the taking of any action by such Pledgor) be pledged
pursuant to Section 3.1 of this Agreement and, in addition thereto, such Pledgor
shall (to the extent provided below) take the following actions as set forth
below (as promptly as practicable and, in any event, within 10 days after it
obtains such Collateral, or with respect to clause (v) below, within the later
of 60 days after it obtains such Collateral or 60 days after the Issue Date (or
such later date as determined by the Pledgee at the direction of the Secured
Parties)) for the benefit of the Pledgee and the other Secured
Parties:
(i) with
respect to a Certificated Security (other than a Certificated Security credited
on the books of a Clearing Corporation or Securities Intermediary), such Pledgor
shall physically deliver such Certificated Security to the Pledgee, endorsed to
the Pledgee or endorsed in blank (unless the ABL Collateral Agent is granted a
prior security interest in such certificates and instruments and the same are
required to be delivered (and are delivered) to the ABL Collateral Agent for the
benefit of the holders of ABL Debt Obligations pursuant to the Intercreditor
Agreement);
(ii) with
respect to an Uncertificated Security (other than an Uncertificated Security
credited on the books of a Clearing Corporation or Securities Intermediary),
such Pledgor shall cause the issuer of such Uncertificated Security to duly
authorize, execute, and deliver to the Pledgee, an agreement for the benefit of
the Pledgee and the other Secured Parties substantially in the form of Annex A
hereto (appropriately completed to the satisfaction of the Pledgee (or as
directed by the Secured Parties) and with such modifications, if any, as shall
be satisfactory to the Pledgee) pursuant to which such issuer agrees to comply
with any and all instructions originated by the Pledgee without further consent
by the registered owner and not to comply with instructions
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regarding
such Uncertificated Security (and any Stock, Partnership Interests and Limited
Liability Company Interests issued by such issuer) originated by any other
Person other than a court of competent jurisdiction (unless the ABL Collateral
Agent is granted a prior security interest in such Uncertificated Security and a
substantially similar agreement is required to be executed and delivered (and is
executed and delivered) to the ABL Collateral Agent for the benefit of the
holders of ABL Debt Obligations pursuant to the Intercreditor
Agreement);
(iii) with
respect to a Certificated Security, Uncertificated Security, Partnership
Interest or Limited Liability Company Interest credited on the books of a
Clearing Corporation or Securities Intermediary (including a Federal Reserve
Bank, Participants Trust Company or The Depository Trust Company), such Pledgor
shall promptly notify the Pledgee thereof and shall promptly take (x) all
actions required (i) to comply with the applicable rules of such Clearing
Corporation or Securities Intermediary and (ii) to perfect the security interest
of the Pledgee under applicable law (including, in any event, under Sections
9-314(a), (b) and (c), 9-106 and 8-106(d) of the UCC) and (y) such other actions
as the Pledgee deems necessary or desirable to effect the
foregoing;
(iv) with
respect to a Partnership Interest or a Limited Liability Company Interest (other
than a Partnership Interest or Limited Liability Company Interest credited on
the books of a Clearing Corporation or Securities Intermediary), (1) if such
Partnership Interest or Limited Liability Company Interest is represented by a
certificate and is a Security for purposes of the UCC, the procedure set forth
in Section 3.2(a)(i) hereof, and (2) if such Partnership Interest or Limited
Liability Company Interest is not represented by a certificate but is a Security
for purposes of the UCC, the procedure set forth in Section 3.2(a)(ii)
hereof;
(v) with
respect to the Equity Interests of any Exempted Foreign Entity that is not an
Excluded Foreign Entity, evidence (including opinions of counsel reasonably
satisfactory to the Collateral Trustee (as directed by the Secured Parties) that
the Pledgee has an enforceable security interest in the Equity Interests of such
Exempted Foreign Entity under the laws of the jurisdiction of formation of such
Exempted Foreign Entity, including any required local law pledge agreement,
registrations, stock certificates and stock powers, together with any officer’s
certificates reasonably requested by the Pledgee (in the case of stock
certificates and stock powers, unless the ABL Collateral Agent is granted a
prior security interest in the Equity Interests of such Exempted Foreign Entity
and such stock certificates and stock powers are required to be delivered (and
are delivered) to the ABL Collateral Agent for the benefit of the holders of ABL
Debt Obligations pursuant to the Intercreditor Agreement);
(vi) with
respect to any Note with an original principal amount in excess of $2,000,000,
physical delivery of such Note to the Pledgee, endorsed in blank, or, at the
request of the Pledgee, endorsed to the Pledgee (unless the ABL Collateral Agent
is granted a prior security interest in such Note and the same are required to
be delivered (and is delivered) to the ABL Collateral Agent for the benefit of
the holders of ABL Debt Obligations pursuant to the Intercreditor Agreement);
provided
that any such Notes owned by any Pledgor on the Issue Date shall be delivered to
the Pledgee (or the ABL
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Collateral
Agent, if applicable) within seven days of the Issue Date (or such later date as
determined by the ABL Collateral Agent in its sole discretion); and
(vii) subject
to the Intercreditor Agreement, except to the extent otherwise permitted to be
retained by such Pledgor or applied by such Pledgor pursuant to the terms of the
Secured Debt Documents, with respect to cash proceeds from any of the Collateral
described in Section 3.1 hereof, (i) establishment by the Pledgee of a cash
account in the name of such Pledgor over which the Pledgee shall have “control”
within the meaning of the UCC and at any time any Default or Event of Default is
in existence no withdrawals or transfers may be made therefrom by any Person
except with the prior written consent of the Pledgee and (ii) deposit of
such cash in such cash account.
(b) In
addition to the actions required to be taken pursuant to Section 3.2(a) hereof,
each Pledgor shall take the following additional actions with respect to the
Collateral:
(i) with
respect to all Collateral of such Pledgor whereby or with respect to which the
Pledgee may obtain “control” thereof within the meaning of Section 8-106 of the
UCC (or under any provision of the UCC as same may be amended or supplemented
from time to time, or under the laws of any relevant State other than the State
of New York), such Pledgor shall take all actions as may be requested from
time to time by the Pledgee so that “control” of such Collateral is obtained and
at all times held by the Pledgee (unless the ABL Collateral Agent is granted a
prior security interest in such Collateral and the same is required to be
subject to the “control” (within the meaning of Section 8-106 of the UCC (or
under any provision of the UCC as same may be amended or supplemented from time
to time, or under the laws of any relevant State other than the State of New
York)) of the ABL Collateral Agent pursuant to the Intercreditor Agreement);
and
(ii) each
Pledgor shall from time to time cause appropriate financing statements (on
appropriate forms) under the Uniform Commercial Code as in effect in the various
relevant States, covering all Collateral hereunder (with the form of such
financing statements to be satisfactory to the Pledgee), to be filed in the
relevant filing offices so that at all times the Pledgee’s security interest in
all Investment Property and other Collateral which can be perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant States,
including, without limitation, Section 9-312(a) of the UCC) is so
perfected.
3.3 Subsequently
Acquired Collateral. If
any Pledgor shall acquire (by purchase, stock dividend, distribution or
otherwise) any additional Collateral at any time or from time to time after the
date hereof, (i) such Collateral shall automatically (and without any further
action being required to be taken) be subject to the pledge and security
interests created pursuant to Section 3.1 hereof and, furthermore, such Pledgor
will thereafter take (or cause to be taken) all action (as promptly as
practicable and, in any event, within 10 days after it obtains such Collateral)
with respect to such Collateral in accordance with the procedures set forth in
Section 3.2 hereof (provided,
however,
that such Pledgor shall have 60 days after it obtains any Equity Interests of
any Exempted Foreign Entity that is not an Excluded Foreign Entity (or such
later date as determined by the Pledgee at the direction of the Secured Parties)
to take the actions set
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forth in
Section 3.2(a)(v)), and will promptly thereafter deliver to the Pledgee (i) a
certificate executed by an authorized officer of such Pledgor describing such
Collateral and certifying that the same has been duly pledged in favor of the
Pledgee (for the benefit of the Secured Parties) hereunder and (ii) a Perfection
Certificate Supplement as necessary to cause the Perfection Certificate to be
complete and accurate at such time. Without limiting the foregoing,
each Pledgor shall be required to pledge hereunder the Equity Interests of any
Exempted Foreign Entity at any time and from time to time after the date hereof
acquired by such Pledgor, provided
that, notwithstanding anything to the contrary in this Agreement, (w) no Pledgor
shall be required at any time to pledge hereunder Equity Interests of any
Excluded Foreign Entity, (x) no Pledgor shall be required at any time to pledge
hereunder more than 65% of the total combined voting power of all classes of
Voting Equity Interests of any Exempted Foreign Entity and (y) each Pledgor
shall be required to pledge hereunder 100% of the Non-Voting Equity Interests of
each Exempted Foreign Entity at any time and from time to time acquired by such
Pledgor, which Non-Voting Equity Interests shall not be subject to the
limitations described in preceding clause (x).
3.4 Transfer
Taxes. Each
pledge of Collateral under Section 3.1 or Section 3.3 hereof shall be
accompanied by any transfer tax stamps required in connection with the pledge of
such Collateral.
3.5 Certain
Representations and Warranties Regarding the
Collateral. Each
Pledgor represents and warrants that on the date hereof: (i) each Subsidiary of
such Pledgor, and the direct ownership thereof, is listed in paragraph 10 of the
Perfection Certificate; (ii) the Stock (and any warrants or options to
purchase Stock) held by such Pledgor consists of the number and type of shares
of the stock (or warrants or options to purchase any stock) of the corporations
as described in paragraph 11 of the Perfection Certificate; (iii) such Stock
referenced in clause (ii) of this paragraph constitutes that percentage of the
issued and outstanding capital stock of the issuing corporation as is set forth
in paragraph 11 of the Perfection Certificate; (iv) the Notes held by such
Pledgor consist of the promissory notes described in paragraph 12 of the
Perfection Certificate where such Pledgor is listed as the lender; (v) the
Limited Liability Company Interests held by such Pledgor consist of the number
and type of interests of the Persons described in paragraph 11 of the Perfection
Certificate; (vi) each such Limited Liability Company Interest referenced in
clause (v) of this paragraph constitutes that percentage of the issued and
outstanding equity interest of the issuing Person as set forth in paragraph 11
of the Perfection Certificate; (vii) the Partnership Interests held by such
Pledgor consist of the number and type of interests of the Persons described in
paragraph 11 of the Perfection Certificate; (viii) each such Partnership
Interest referenced in clause (viii) of this paragraph constitutes that
percentage or portion of the entire partnership interest of the Partnership as
set forth in paragraph 11 of the Perfection Certificate; (ix) the Pledgor has
complied with the respective procedure set forth in Section 3.2(a) hereof with
respect to each item of Collateral described in paragraphs 11 and 12 of the
Perfection Certificate; and (x) on the date hereof, such Pledgor owns no other
Securities, Stock, Notes, Limited Liability Company Interests or Partnership
Interests.
3.6 Limited
Liability Company Interests and Partnership Interests. None
of the Limited Liability Company Interests nor the Partnership Interests are or
represent interests in issuers that: (a) are registered as investment companies
or (b) are dealt in or traded on securities exchanges or
markets. Except as set forth on Schedule 16 to the Perfection
Certificate, all of the
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Limited
Liability Company Interests and Partnership Interests are or represent interests
in issuers that have opted to be treated as securities under the Uniform
Commercial Code of any jurisdiction. Each Pledgor hereby covenants
and agrees that, without the prior written consent of the Pledgee, it shall not
vote to enable or take any other action to cause any issuer of any Partnership
Interests or Limited Liability Company Interests which are not Securities (for
purposes of the Uniform Commercial Code of any jurisdiction) on the date hereof
to elect or otherwise take any action to cause such Partnership Interests or
Limited Liability Company Interests to be treated as Securities for purposes of
the Uniform Commercial Code of any jurisdiction; provided,
however,
that notwithstanding the foregoing, if any issuer of any Partnership Interests
or Limited Liability Company Interests takes any such action in violation of the
foregoing in this Section 3.6, such Pledgor shall promptly notify the Pledgee in
writing of any such election or action and, in such event, shall take all steps
necessary or advisable to establish the Pledgee’s “control” (within the meaning
of Section 8-106 of the UCC) thereof (unless the ABL Collateral Agent is granted
a prior security interest in such Partnership Interests or Limited Liability
Company Interests and the same is required to be subject to the “control”
(within the meaning of Section 8-106 of the UCC) of the ABL Collateral Agent
pursuant to the Intercreditor Agreement).
4. APPOINTMENT
OF SUB-AGENTS; ENDORSEMENTS, ETC. The
Pledgee shall have the right to appoint one or more sub-agents for the purpose
of retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING,
ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT. Unless
and until there shall have occurred and be continuing an Event of Default under
the Indenture or any other Secured Debt Document or a Default under Section
6.01(a) or 6.01(h) of the Indenture (each such Default, a “Specified
Default”) and the Pledgee has notified the Issuer of its exercise of
rights under this Section 5, each Pledgor shall be entitled to exercise any and
all voting and other consensual rights pertaining to the Collateral owned by it,
and to give consents, waivers or ratifications in respect thereof; provided
that, in each case, no vote shall be cast or any consent, waiver or ratification
given or any action taken or omitted to be taken which would violate, result in
a breach of any covenant contained in, or be inconsistent with any of the terms
of any Secured Debt Document, or which could reasonably be expected to have the
effect of impairing the value of the Collateral or any part thereof or the
position or interests of the Pledgee or any other Secured Party in the
Collateral, unless expressly permitted by the terms of the Secured Debt
Documents. All such rights of each Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default has
occurred and is continuing, and Section 7 hereof shall become
applicable.
6. DIVIDENDS
AND OTHER DISTRIBUTIONS. Unless
and until there shall have occurred and be continuing an Event of Default, all
ordinary cash dividends, cash distributions and other cash amounts payable in
respect of the Collateral by the issuer in the normal course of business of the
issuer and consistent with past practice of the issuer shall be paid to the
respective Pledgor. Subject to the Intercreditor Agreement, the
Pledgee shall be entitled to receive directly, and to retain as part of the
Collateral:
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(i) all other
or additional stock, notes, certificates, limited liability company interests,
partnership interests, instruments or other securities or property (including,
but not limited to, cash dividends and other cash distributions other than as
set forth above) paid or distributed by way of dividend or otherwise in respect
of the Collateral;
(ii) all other
or additional stock, notes, certificates, limited liability company interests,
partnership interests, instruments or other securities or property (including,
but not limited to, cash) paid or distributed in respect of the Collateral by
way of stock-split, spin-off, split-up, reclassification, combination of shares
or similar rearrangement; and
(iii) all other
or additional stock, notes, certificates, limited liability company interests,
partnership interests, instruments or other securities or property (including,
but not limited to, cash (although such cash may be paid directly to the
respective Pledgor so long as no Event of Default then exists)) which may be
paid in respect of the Collateral by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or similar corporate or
other reorganization.
Nothing
contained in this Section 6 shall limit or restrict in any way the Pledgee’s
right to receive the proceeds of the Collateral in any form in accordance with
Section 3 of this Agreement. All dividends, distributions or other
payments which are received by any Pledgor contrary to the provisions of this
Section 6 or Section 7 hereof shall be received in trust for the benefit of the
Pledgee, shall be segregated from other property or funds of such Pledgor and,
subject to the Intercreditor Agreement, shall be forthwith paid over to the
Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
7. REMEDIES
IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT. (a) If
there shall have occurred and be continuing an Event of Default, then and in
every such case, subject to the Intercreditor Agreement, the Pledgee shall be
entitled to exercise all of the rights, powers and remedies (whether vested in
it by this Agreement, any other Secured Debt Document or by law) for the
protection and enforcement of its rights in respect of the Collateral, and the
Pledgee shall be entitled to exercise, as directed by the Secured Parties if
applicable, all the rights and remedies of a secured party under the Uniform
Commercial Code as in effect in any relevant jurisdiction and also shall be
entitled, without limitation, to exercise the following rights, which each
Pledgor hereby agrees to be commercially reasonable:
(i) to
receive all amounts payable in respect of the Collateral otherwise payable under
Section 6 hereof to the respective Pledgor;
(ii) to
transfer all or any part of the Collateral into the Pledgee’s name or the name
of its nominee or nominees;
(iii) to
accelerate any Pledged Note which may be accelerated in accordance with its
terms, and take any other lawful action to collect upon any Pledged Note
(including, without limitation, to make any demand for payment
thereon);
(iv) unless
and until the Pledgee has notified the Issuer of its exercise of rights under
this Section 7, to vote (and exercise all rights and powers in respect of
voting) all
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or any
part of the Collateral (whether or not transferred into the name of the Pledgee)
and give all consents, waivers and ratifications in respect of the Collateral
and otherwise act with respect thereto as though it were the outright owner
thereof (each Pledgor hereby irrevocably constituting and appointing the Pledgee
the proxy and attorney-in-fact of such Pledgor, with full power of substitution
to do so);
(v) at any
time and from time to time to sell, assign and deliver, or grant options to
purchase, all or any part of the Collateral, or any interest therein, at any
public or private sale, without demand of performance, advertisement or, notice
of intention to sell or of the time or place of sale or adjournment thereof or
to redeem or otherwise purchase or dispose (all of which are hereby waived by
each Pledgor), for cash, on credit or for other property, for immediate or
future delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided
at least 10 days’ written notice of the time and place of any such sale shall be
given to the respective Pledgor. The Pledgee shall not be obligated
to make any such sale of Collateral regardless of whether any such notice of
sale has theretofore been given. Each Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshalling the Collateral and any other
security or the Secured Debt Obligations or otherwise. At any such
sale, unless prohibited by applicable law, the Pledgee on behalf of the Secured
Parties may bid for and purchase all or any part of the Collateral so sold free
from any such right or equity of redemption. Neither the Pledgee nor
any other Secured Party shall be liable for failure to collect or realize upon
any or all of the Collateral or for any delay in so doing nor shall any of them
be under any obligation to take any action whatsoever with regard thereto;
and
(vi) to set
off any and all Collateral against any and all Secured Debt Obligations, and to
withdraw any and all cash or other Collateral from any and all Collateral
Accounts and to apply such cash and other Collateral to the payment of any and
all Secured Debt Obligations.
(b) If
there shall have occurred and be continuing a Specified Default, then and in
every such case, unless and until the Pledgee has notified the Issuer of its
exercise of rights under this Section 7, the Pledgee, on behalf of the Secured
Parties, shall be entitled to vote (and exercise all rights and powers in
respect of voting) all or any part of the Collateral (whether or not transferred
into the name of the Pledgee) and give all consents, waivers and ratifications
in respect of the Collateral and otherwise act with respect thereto as though it
were the outright owner thereof (each Pledgor hereby irrevocably constituting
and appointing the Pledgee the proxy and attorney-in-fact of such Pledgor, with
full power of substitution to do so).
8. REMEDIES,
CUMULATIVE, ETC. Each
and every right, power and remedy of the Pledgee provided for in this Agreement
or in any other Secured Debt Document, or now or hereafter existing at law or in
equity or by statute shall be cumulative and concurrent and shall be in addition
to every other such right, power or remedy. The exercise or beginning of the
exercise by the Pledgee or any other Secured Party of any one or more of the
rights, powers or remedies provided for in this Agreement or any other Secured
Debt Document or now or hereafter existing
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at law or
in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee or any other Secured Party of all
such other rights, powers or remedies, and no failure or delay on the part of
the Pledgee or any other Secured Party to exercise any such right, power or
remedy shall operate as a waiver thereof. No notice to or demand on
any Pledgor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Party to any other or further action
in any circumstances without notice or demand. The Secured Parties
agree that this Agreement may be enforced only by the action of the Pledgee, in
each case, acting in a manner consistent with the Collateral Trust Agreement,
and that no other Secured Party shall have any right individually to seek to
enforce or to enforce this Agreement or to realize upon the security to be
granted hereby, it being understood and agreed that such rights and remedies may
be exercised by the Pledgee for the benefit of the Secured Parties upon the
terms of this Agreement, the Intercreditor Agreement, the Collateral Trust
Agreement and the other Security Documents.
9. APPLICATION
OF PROCEEDS. (a) Subject
to the Intercreditor Agreement, all monies collected by the Pledgee upon any
sale or other disposition of the Collateral pursuant to the terms of this
Agreement, together with all other monies received by the Pledgee hereunder,
shall be applied in the manner provided in Section 4.06 of the
Indenture.
(b) It is
understood and agreed that each Pledgor shall remain jointly and severally
liable with respect to its Secured Debt Obligations to the extent of any
deficiency between the amount of the proceeds of the Collateral pledged by it
hereunder and the aggregate amount of such Secured Debt
Obligations.
10. PURCHASERS
OF COLLATERAL. Upon
any sale of the Collateral by the Pledgee hereunder (whether by virtue of the
power of sale herein granted, pursuant to judicial process or otherwise), the
receipt of the Pledgee or the officer making such sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Pledgee or such officer or be
answerable in any way for the misapplication or nonapplication
thereof.
11. INDEMNITY. Each
Pledgor jointly and severally agrees (i) to indemnify, reimburse and hold
harmless the Pledgee and each other Secured Party and their respective
successors, assigns, employees, agents and affiliates (individually an “Indemnitee”,
and collectively, the “Indemnitees”)
from and against any and all obligations, damages, injuries, penalties, claims,
demands, losses, judgments and liabilities (including, without limitation,
liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse
each Indemnitee for all reasonable out-of-pocket costs, expenses and
disbursements, including reasonable attorneys’ fees and expenses, in each case
arising out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any other
Secured Debt Document (but excluding any obligations, damages, injuries,
penalties, claims, demands, losses, judgments and liabilities (including,
without limitation, liabilities for penalties) or expenses of whatsoever kind or
nature to the extent incurred or arising by reason of gross negligence or
willful misconduct of such Indemnitee (as determined by a court of competent
jurisdiction in a final and non-appealable decision)). In no event
shall the Pledgee hereunder be liable, in the
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absence
of gross negligence or willful misconduct on its part (as determined by a court
of competent jurisdiction in a final and non-appealable decision), for any
matter or thing in connection with this Agreement other than to account for
monies or other property actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, such Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The indemnity
obligations of each Pledgor contained in this Section 11 shall continue in full
force and effect notwithstanding the full repayment of all the Senior Secured
Notes issued under the Indenture and the payment of all other Secured Debt
Obligations and notwithstanding the discharge thereof.
12. PLEDGEE
NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a) Nothing
herein shall be construed to make the Pledgee or any other Secured Party liable
as a member of any limited liability company or as a partner of any partnership
and neither the Pledgee nor any other Secured Party by virtue of this Agreement
or otherwise (except as referred to in the following sentence) shall have any of
the duties, obligations or liabilities of a member of any limited liability
company or as a partner in any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
Collateral consisting of a Limited Liability Company Interest or a Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Party, any
Pledgor and/or any other Person.
(b) Except as
provided in the last sentence of paragraph (a) of this Section 12, the Pledgee,
by accepting this Agreement, did not intend to become a member of any limited
liability company or a partner of any partnership or otherwise be deemed to be a
co-venturer with respect to any Pledgor, any limited liability company,
partnership and/or any other Person either before or after an Event of Default
shall have occurred. The Pledgee shall have only those powers set
forth herein and the Secured Parties shall assume none of the duties,
obligations or liabilities of a member of any limited liability company or as a
partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The
Pledgee and the other Secured Parties shall not be obligated to perform or
discharge any obligation of any Pledgor as a result of the pledge hereby
effected.
(d) The
acceptance by the Pledgee of this Agreement, with all the rights, powers,
privileges and authority so created, shall not at any time or in any event
obligate the Pledgee or any other Secured Party to appear in or defend any
action or proceeding relating to the Collateral to which it is not a party, or
to take any action hereunder or thereunder, or to expend any money or incur any
expenses or perform or discharge any obligation, duty or liability under the
Collateral.
13. FURTHER
ASSURANCES; POWER-OF-ATTORNEY. (a) Each
Pledgor agrees that it will join with the Pledgee in executing and, at such
Pledgor’s own expense, file and refile under the UCC or other applicable law
such financing statements, continuation statements and other documents, in form
reasonably acceptable to the Pledgee, in such offices as the Pledgee (acting on
its own or otherwise in a manner consistent with the Collateral Trust Agreement)
may reasonably deem necessary or appropriate and wherever required or
permitted
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by law in
order to perfect and preserve the Pledgee’s security interest in the Collateral
hereunder and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral (including,
without limitation, financing statements which list the Collateral specifically
and/or “all assets” or words of similar meaning as collateral) without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem advisable to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder or thereunder.
(b) Each
Pledgor hereby constitutes and appoints the Pledgee and any officer or agent
thereof (such appointment being coupled with an interest) its true and lawful
attorney-in-fact, irrevocably, with full authority in the place and stead of
such Pledgor and in the name of such Pledgor or otherwise, in the Pledgee’s
discretion, in each case subject to the Intercreditor
Agreement:
(i) upon the
occurrence and during the continuance of any Event of Default, to ask for,
collect, xxx for, recover, act, require, demand, receive, compound and give
acquittance for any and all monies and claims for monies due or to become due to
such Pledgor under or arising out of the Collateral;
(ii) upon the
occurrence and during the continuance of any Event of Default, to receive,
endorse and collect any checks, drafts or other instruments or orders, documents
and chattel paper in connection with clause (i) above;
(iii) upon the
occurrence and during the continuance of any Event of Default, to (A) file any
claims or take any action or institute any proceedings which the Pledgee, or the
Pledgee as directed by the Secured Parties, may deem to be necessary or
advisable for the collection of any of the Collateral or otherwise to protect
the interests of the Secured Parties with respect to any of the Collateral and
(B) defend any suit, action or proceeding brought against such Pledgor with
respect to any Collateral and settle, compromise or adjust any such suit, action
or proceeding and, in connection therewith, give such discharges or releases as
the Pledgee may deem appropriate;
(iv) upon the
occurrence and during the continuance of any Event of Default, to direct any
party liable for any payment under any Collateral to make payment of any moneys
due or to become due thereunder directly to the Pledgee or as the Pledgee may
direct;
(v) upon the
occurrence and during the continuance of any Event of Default, to execute, in
connection with and sale provided for in Section 7, any endorsement, assignment
or other instrument of conveyance or transfer with respect to the
Collateral;
(vi) to
prepare and file any UCC financing statements relating to the Collateral against
such Pledgor (a copy of which shall be delivered to such
Pledgor);
(vii) to pay or
discharge taxes and Liens (other than Permitted Liens) levied or placed on or
threatened against the Collateral, the legality or validity thereof and
the
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amounts
necessary to discharge the same to be determined by the Pledgee as directed by
the Secured Parties; and
(viii) upon the
occurrence and during the continuance of any Event of Default, generally to
sell, transfer, pledge, make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Pledgee were
the absolute owner thereof for all purposes, and to do, at the Pledgee’s option
and such Pledgor’s expense, at any time and from time to time, all acts and
things that the Pledgee, or the Pledgee as directed by the Secured Parties,
deems reasonably necessary to protect, preserve or realize upon the Collateral
and the Pledgee’s security interest therein in order to effect the intent of
this Agreement, all as fully and effectively as such Pledgor might
do.
Each
Pledgor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof.
14. THE
PLEDGEE AS COLLATERAL TRUSTEE. The
Pledgee will hold in accordance with this Agreement all items of the Collateral
at any time received under this Agreement. It is expressly
understood, acknowledged and agreed by each Secured Party that by accepting the
benefits of this Agreement each such Secured Party acknowledges and agrees that
the obligations of the Pledgee as holder of the Collateral and interests therein
and with respect to the disposition thereof, and otherwise under this Agreement,
are only those expressly set forth in this Agreement, in the Collateral Trust
Agreement and in Articles Seven and Eleven of the Indenture. The
Pledgee shall act hereunder on the terms and conditions set forth herein, in the
Collateral Trust Agreement and in Articles Seven and Eleven of the
Indenture.
15. TRANSFER
BY THE PLEDGORS. Except
as permitted under the Indenture and the other Secured Debt Documents, no
Pledgor will sell or otherwise dispose of, grant any option with respect to, or
mortgage, pledge or otherwise encumber any of the Collateral or any interest
therein.
16. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PLEDGORS. (a) Each
Pledgor represents, warrants and covenants as to itself and each of its
Subsidiaries that:
(i) it is the
legal, beneficial and record owner of, and has good and marketable title to, all
of its Collateral consisting of one or more Securities, Partnership Interests
and Limited Liability Company Interests and that it has sufficient interest in
all of its Collateral in which a security interest is purported to be created
hereunder for such security interest to attach (subject, in each case, to no
pledge, lien, mortgage, hypothecation, security interest, charge, option,
Adverse Claim or other encumbrance whatsoever, except the liens and security
interests created by this Agreement or permitted under the Secured Debt
Documents);
(ii) it has
full power, authority and legal right to pledge all the Collateral pledged by it
pursuant to this Agreement;
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(iii) except to
the extent already obtained or made, no consent of any other party (including,
without limitation, any stockholder, partner, member or creditor of such Pledgor
or any of its Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained by such
Pledgor in connection with (a) the execution, delivery or performance of this
Agreement by such Pledgor, (b) the validity or enforceability of this Agreement
against such Pledgor, (c) the perfection or enforceability of the Pledgee’s
security interest in such Pledgor’s Collateral or (d) except for compliance with
or as may be required by applicable securities laws, the exercise by the Pledgee
of any of its rights or remedies provided herein;
(iv) all of
such Pledgor’s Collateral (consisting of Securities, Limited Liability Company
Interests and Partnership Interests) has been duly and validly issued, is fully
paid and non-assessable and is subject to no options to purchase or similar
rights;
(v) each of
such Pledgor’s Pledged Notes constitutes, or when executed by the obligor
thereof will constitute, the legal, valid and binding obligation of such
obligor, enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and by general equitable principles (regardless of whether enforcement
is sought in equity or at law);
(vi) the
pledge, collateral assignment and delivery to the Pledgee (or to the ABL
Collateral Agent if it is granted a prior security interest in such Note and the
same is delivered to the ABL Collateral Agent for the benefit of the holders of
ABL Debt Obligations pursuant to the Intercreditor Agreement) of such Pledgor’s
Collateral consisting of Certificated Securities and Pledged Notes pursuant to
this Agreement creates a valid and perfected security interest in such
Certificated Securities and Pledged Notes, and the proceeds thereof, and such
security interest is, in the case of the Notes Collateral, first priority, and
in the case of the ABL Collateral, second priority, subject to no prior Lien or
encumbrance or to any agreement purporting to grant to any third party a Lien or
encumbrance on the property or assets of such Pledgor which would include the
Certificated Securities or the Pledged Notes (other than the Liens and security
interests permitted under the Secured Debt Documents then in effect) and the
Pledgee is entitled to all the rights, priorities and benefits afforded by the
UCC or other relevant law as enacted in any relevant jurisdiction to perfect
security interests in respect of such Collateral;
(vii) “control”
(as defined in Section 8-106 of the UCC) has been obtained by the Pledgee over
all of such Pledgor’s Collateral consisting of Securities (including, without
limitation, Notes which are Securities) with respect to which such “control” may
be obtained pursuant to Section 8-106 of the UCC, except to the extent that the
obligation of the applicable Pledgor to provide the Pledgee with “control” of
such Collateral has not yet arisen under this Agreement; provided
that in the case of the Pledgee obtaining “control” over Collateral consisting
of a Security Entitlement, such Pledgor shall have taken all steps in its
control so that the Pledgee obtains “control” over such Security Entitlement
(unless the ABL Collateral Agent is granted a prior security interest in such
Collateral and the same is required to be subject to the “control” (within the
meaning of
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Section
8-106 of the UCC) of the ABL Collateral Agent pursuant to the Intercreditor
Agreement);
(viii) all
filings, registrations, recordings and other actions necessary or appropriate to
create, preserve and perfect the security interest granted by such Pledgor to
the Pledgee hereby in respect of the Collateral have been accomplished and the
security interest granted to the Pledgee pursuant to this Agreement in and to
the Collateral creates a valid and, together with all such filings,
registrations, recordings and other actions, a perfected security interest
therein and such security interest is, in the case of the Notes Collateral,
first priority, and in the case of the ABL Collateral, second priority, prior to
the rights of all other Persons therein and subject to no other Liens (other
than Permitted Liens) and is entitled to all the rights, priorities and benefits
afforded by the Uniform Commercial Code or other relevant law as enacted in any
relevant jurisdiction to perfected security interests, in each case to the
extent that the Collateral consists of the type of property in which a security
interest may be perfected by possession or control (within the meaning of the
UCC) or by filing a financing statement under the Uniform Commercial Code as
enacted in any relevant jurisdiction; and
(ix) none of
the Collateral 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.
(b) Each
Pledgor covenants and agrees that it will defend the Pledgee’s right, title and
security interest in and to such Pledgor’s Collateral and the proceeds thereof
against the claims and demands of all persons whomsoever; and each Pledgor
covenants and agrees that it will have like title to and right to pledge any
other property at any time hereafter pledged to the Pledgee by such Pledgor as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured
Parties.
(c) Each
Pledgor covenants and agrees that it will take no action which would violate any
of the terms of any Secured Debt Document.
17. LEGAL
NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR A
TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL
IDENTIFICATION NUMBERS; FEDERAL EMPLOYER IDENTIFICATION NUMBERS; CHANGES
THERETO; ETC. The
exact legal name of each Pledgor, the type of organization of such Pledgor,
whether or not such Pledgor is a Registered Organization, the jurisdiction of
organization of such Pledgor, such Pledgor’s Location, the organizational
identification number (if any) of each Pledgor, the Federal Employer
Identification Number (if any) and whether or not such Pledgor is a Transmitting
Utility, is listed on paragraph 2 of the Perfection Certificate for such
Pledgor. No Pledgor shall change its legal name, its type of
organization, its status as a Registered Organization (in the case of a
Registered Organization), its status as a Transmitting Utility or as a Person
which is not a Transmitting Utility, as the case may be, its jurisdiction of
organization, its Location, its organizational identification number (if any),
or its Federal Employer Identification Number (if any) from that listed on
paragraph 2 of the Perfection Certificate, except that any such changes shall be
permitted (so long as not in violation of the applicable requirements of the
Secured Debt
Page
21
Documents
and so long as same do not involve (x) a Registered Organization ceasing to
constitute same or (y) any Pledgor changing its jurisdiction of organization or
Location from the United States or a State thereof to a jurisdiction of
organization or Location, as the case may be, outside the United States or a
State thereof) if (i) it shall have given to the Pledgee not less than 15 days’
prior written notice of each change to the information listed on paragraph 2 of
the Perfection Certificate (as adjusted for any subsequent changes thereto
previously made in accordance with this sentence), and (ii) in connection with
the respective such change or changes, it shall have taken all action reasonably
requested by the Pledgee (or as directed by the Secured Parties) to maintain the
security interests of the Pledgee in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect. In
addition, to the extent that any Pledgor does not have an organizational
identification number on the date hereof and later obtains one, such Pledgor
shall promptly thereafter deliver a notification of the Pledgee of such
organizational identification number and shall take all actions reasonably
satisfactory to the Pledgee to the extent necessary to maintain the security
interest of the Pledgee in the Collateral intended to be granted hereby fully
perfected and in full force and effect.
18. PLEDGORS’
OBLIGATIONS ABSOLUTE, ETC. The
obligations of each Pledgor under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever (other than termination of this
Agreement pursuant to Section 20 hereof), including, without
limitation:
(i) any
renewal, extension, amendment or modification of, or addition or supplement to
or deletion from any Secured Debt Document (other than this Agreement in
accordance with its terms), or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof;
(ii) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such agreement or instrument including, without limitation, this
Agreement (other than a waiver, consent or extension with respect to this
Agreement in accordance with its terms);
(iii) any
furnishing of any additional security to the Pledgee or its assignee or any
acceptance thereof or any release of any security by the Pledgee (or as directed
by the Secured Parties) or its assignee;
(iv) any
limitation on any party’s liability or obligations under any such instrument or
agreement or any invalidity or unenforceability, in whole or in part, of any
such instrument or agreement or any term thereof; or
(v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the
foregoing.
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22
19. SALE OF
COLLATERAL WITHOUT REGISTRATION. (a) If
an Event of Default shall have occurred and be continuing and any Pledgor shall
have received from the Pledgee a written request or requests that such Pledgor
cause any registration, qualification or compliance under any federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will use its best efforts to cause such registration to be effected (and be kept
effective) and will use its best efforts to cause such qualification and
compliance to be effected (and be kept effective) as may be so requested and as
would permit or facilitate the sale and distribution of such Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests, including, without limitation, registration under the Securities Act,
as then in effect (or any similar statute then in effect), appropriate
qualifications under applicable blue sky or other state securities laws and
appropriate compliance with any other governmental requirements; provided,
that the Pledgee shall furnish to such Pledgor such information regarding the
Pledgee as such Pledgor may request in writing and as shall be required in
connection with any such registration, qualification or
compliance. Each Pledgor will cause the Pledgee to be kept reasonably
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars and other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify, to
the extent permitted by law, the Pledgee and all other Secured Parties
participating in the distribution of such Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests against all claims,
losses, damages and liabilities caused by any untrue statement (or alleged
untrue statement) of a material fact contained therein (or in any related
registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to such Pledgor by the Pledgee or such other
Secured Party expressly for use therein.
(b) If at any
time when the Pledgee shall determine to exercise its right to sell all or any
part of the Collateral consisting of Securities, Limited Liability
Company Interests or Partnership Interests pursuant to Section 7 hereof, and
such Collateral or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Securities Act, as then in
effect, the Pledgee may, as directed by the Secured Parties if applicable, sell
such Collateral or part thereof by private sale in such manner and under such
circumstances as the Pledgee, as directed by the Secured Parties if applicable,
may deem necessary or advisable in order that such sale may legally be effected
without such registration. Without limiting the generality of the
foregoing, in any such event the Pledgee, as directed by the Secured Parties if
applicable, (i) may proceed to make such private sale notwithstanding that a
registration statement for the purpose of registering such Collateral or part
thereof shall have been filed under such Securities Act, (ii) may approach and
negotiate with a single possible purchaser to effect such sale, and (iii) may
restrict such sale to a purchaser who will represent and agree that such
purchaser is purchasing for its own account, for investment, and not with a view
to the distribution or sale of such Collateral or part thereof. In
the event of any such sale, the Pledgee shall incur no responsibility or
liability for selling all or any part of the Collateral at a price which the
Pledgee, as directed by the Secured Parties if applicable, may in good xxxxx
xxxx
Page
23
reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might be realized if the sale were deferred until the registration
as aforesaid.
20. TERMINATION;
RELEASE. (a) Upon
the occurrence of the Discharge of Priority Lien Obligations and the discharge
of all other Secured Debt Obligations, this Agreement shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination) and the Pledgee, at the request
and expense of such Pledgor, will (without recourse and without any
representation or warranty) execute and deliver to such Pledgor a proper
instrument or instruments (including UCC termination statements) acknowledging
the satisfaction and termination of this Agreement (including, without
limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance), and will duly release from the security interest
created hereby and assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
may be in the possession of the Pledgee and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement, together with any
moneys at the time held by the Pledgee or any of its sub-agents hereunder and,
with respect to any Collateral consisting of an Uncertificated Security, a
Partnership Interest or a Limited Liability Company Interest (other than an
Uncertificated Security, Partnership Interest or Limited Liability Company
Interest credited on the books of a Clearing Corporation or Securities
Intermediary), a termination of the agreement relating thereto executed and
delivered by the issuer of such Uncertificated Security pursuant to Section
3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section 3.2(a)(iv)(2).
(b) In the
event that the Collateral Trustee’s Liens on any portion of the Collateral have
been released pursuant to Section 4.1(a) of the Collateral Trust Agreement, the
Pledgee, at the request and expense of such Pledgor, will duly release from the
security interest created hereby (and will execute and deliver such
documentation, including termination or partial release statements and the like
in connection therewith) and assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
the possession of the Pledgee (or, in the case of Collateral held by any
sub-agent designated pursuant to Section 4 hereto, such sub-agent) and has not
theretofore been released pursuant to this Agreement.
(c) At any
time that any Pledgor desires that Collateral be released as provided in the
foregoing Section 20(a) or (b), it shall deliver to the Pledgee (and the
relevant sub-agent, if any, designated pursuant to Section 4 hereof) a
certificate signed by an authorized officer of such Pledgor stating that the
release of the respective Collateral is permitted pursuant to Section 20(a) or
(b) hereof. If reasonably requested by the Pledgee (although the
Pledgee shall have no obligation to make any such request), the relevant Pledgor
shall furnish appropriate legal opinions (from counsel, reasonably acceptable to
the Pledgee) to the effect set forth in the immediately preceding
sentence.
(d) The
Pledgee shall have no liability whatsoever to any other Secured Party as the
result of any release of Collateral by it in accordance with (or which the
Pledgee in good faith believes to be in accordance with) this Section
20.
Page
24
21. NOTICES,
ETC. Except
as otherwise specified herein, all notices, requests, demands or other
communications to or upon the respective parties hereto shall be made in
accordance with Section 7.7 of the Collateral Trust
Agreement.
22. WAIVER;
AMENDMENT. Subject
to Section 2.11 of the Intercreditor Agreement, none of the terms and conditions
of this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in accordance with the requirements specified in Section 7.1
of the Collateral Trust Agreement. No failure on the part of the
Pledgee or any other Secured Party to exercise, and no delay in exercising any
right hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
23. SUCCESSORS AND ASSIGNS. This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect, subject to release and/or termination
as set forth in Section 20, (ii) be binding upon each Pledgor, its successors
and assigns; provided,
however,
that no Pledgor shall assign any of its rights or obligations hereunder, and
(iii) inure, together with the rights and remedies of the Pledgee hereunder, to
the benefit of the Pledgee, the other Secured Parties and their respective
successors, transferees and assigns. All agreements, statements,
representations and warranties made by each Pledgor herein or in any certificate
or other instrument delivered by such Pledgor or on its behalf under this
Agreement shall be considered to have been relied upon by the Secured Parties
and shall survive the execution and delivery of this Agreement and the other
Secured Debt Documents regardless of any investigation made by the Secured
Parties or on their behalf.
24. HEADINGS DESCRIPTIVE. The
headings of the several Sections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
25. GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES WHICH
WOULD HAVE THE EFFECT OF APPLYING THE LAWS OF ANY OTHER
JURISDICTION.
(b) All
judicial proceedings brought against any party hereto arising out of or relating
to this Agreement or any of the other Security Documents may be brought in any
state or federal court of competent jurisdiction in the State, County and City
of New York. By executing and delivering this Agreement, each
Pledgor, for itself and in connection with its properties,
irrevocably:
(A) accepts
generally and unconditionally the nonexclusive jurisdiction and venue of such
courts;
(B) waives
any defense of forum non conveniens;
Page
25
(C) agrees
that service of all process in any such proceeding in any such court may be made
by registered or certified mail, return receipt requested, to such party at its
address provided in accordance with Section 7.7 of the Collateral Trust
Agreement;
(D) agrees
that service as provided in clause (C) above is sufficient to confer personal
jurisdiction over such party in any such proceeding in any such court and
otherwise constitutes effective and binding service in every respect;
and
(E) agrees
that each party hereto retains the right to serve process in any other manner
permitted by law or to bring proceedings against any party in the courts of any
other jurisdiction.
(c) Each
party to this Agreement waives its rights to a jury trial of any claim or cause
of action based upon or arising under this Agreement or any of the other
Security Documents or any dealings between them relating to the subject matter
of this Agreement or the intents and purposes of the other Security
Documents. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this Agreement and the other Security Documents,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party to this Agreement
acknowledges that this waiver is a material inducement to enter into a business
relationship, that each party hereto has already relied on this waiver in
entering into this Agreement, and that each party hereto will continue to rely
on this waiver in its related future dealings. Each party hereto
further warrants and represents that it has reviewed this waiver with its legal
counsel and that it knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. This waiver is
irrevocable, meaning that it may not be modified either orally or in writing
(other than by a mutual written waiver specifically referring to this Section 25
and executed by each of the parties hereto), and this waiver will apply to any
subsequent amendments, renewals, supplements or modifications of or to this
Agreement or any of the other Security Documents or to any other documents or
agreements relating thereto. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the
court.
26. PLEDGOR’S
DUTIES. It
is expressly agreed, anything herein contained to the contrary notwithstanding,
that each Pledgor shall remain liable to perform all of the obligations, if any,
assumed by it with respect to the Collateral and the Pledgee shall not have any
obligations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, except for the safekeeping of Collateral actually
in Pledgor’s possession, nor shall the Pledgee be required or obligated in any
manner to perform or fulfill any of the obligations of any Pledgor under or with
respect to any Collateral.
27. COUNTERPARTS. This
Agreement may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument. A set of counterparts executed by all the
parties hereto shall be lodged with the Issuer and the Pledgee. Delivery of an
executed counterpart of a signature page to this Agreement, or of any amendment
or waiver of any provision of this Agreement or of any
joinder
Page
26
agreement,
by telecopier or in “pdf” or similar format by electronic mail, shall be
effective as delivery of an original executed counterpart thereof..
28. SEVERABILITY. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
29. RECOURSE. This
Agreement is made with full recourse to each Pledgor and pursuant to and upon
all the representations, warranties, covenants and agreements on the part of
such Pledgor contained herein and in the other Secured Debt Documents and
otherwise in writing in connection herewith or therewith.
30. ADDITIONAL
PLEDGORS. It
is understood and agreed that any Person that desires to become an Pledgor
hereunder, or is required to execute a counterpart of this Agreement after the
date hereof pursuant to the requirements of the Indenture or any other Secured
Debt Document, shall become a Pledgor hereunder by (x) executing a counterpart
hereof and delivering same to the Pledgee or by executing a joinder agreement
and delivering same to the Pledgee, in each case as may be requested by (and in
form and substance satisfactory to) the Pledgee, (y) delivering a Perfection
Certificate Supplement with respect to such additional Pledgor on such date and
(z) taking all actions as specified in this Agreement as would have been taken
by such Pledgor had it been an original party to this Agreement, in each case
with all documents required above to be delivered to the Pledgee and with all
documents and actions required above to be taken to the reasonable satisfaction
of the Pledgee (or as directed by the Secured Parties). Upon the
execution and delivery, or authentication, by any Person of a counterpart hereof
or a joinder agreement, such Person shall be referred to as an “Additional
Pledgor” and shall be and become a Pledgor hereunder, and each reference
in this Agreement and the other Secured Debt Documents to “Pledgor ” shall also
mean and be a reference to such Additional Pledgor, and each reference in this
Agreement and the other Secured Debt Documents to “Collateral”
shall also mean and be a reference to the Collateral of such Additional
Pledgor.
31. LIMITED
OBLIGATIONS. It
is the desire and intent of each Pledgor and the Secured Parties that this
Agreement shall be enforced against each Pledgor to the fullest extent
permissible under the laws applied in each jurisdiction in which enforcement is
sought. Notwithstanding anything to the contrary contained herein, in
furtherance of the foregoing, it is noted that the obligations of each Pledgor
constituting a Guarantor have been limited as provided in each Guarantee to
which such Pledgor is a party.
32. RELEASE OF PLEDGORS. If
at any time all of the Equity Interests of any Pledgor owned by the Issuer or
any of its Subsidiaries are sold (to a Person other than the Issuer or a
Restricted Subsidiary of the Issuer either before or after such sale) in a
transaction that is not prohibited by either Section 4.06 of the Indenture or by
the terms of any applicable Secured Debt Document then in effect, then, such
Pledgor shall be released as a Pledgor pursuant to this Agreement without any
further action hereunder (it being understood that the sale of all of the Equity
Interests in any Person that owns, directly or indirectly, all of the Equity
Interests in any Pledgor shall be deemed to be a sale of all of the Equity
Interests in such Pledgor for purposes of
Page
27
this
Section), and the Pledgee is authorized and directed to execute and deliver, at
the request and expense of such Pledgor, such instruments of release as are
reasonably satisfactory to the Pledgee, or as directed by the Secured
Parties. At any time that the Issuer desires that a Pledgor be
released from this Agreement as provided in this Section 32, the Issuer shall
deliver to the Pledgee a certificate signed by a principal executive officer of
the Borrower stating that the release of such Pledgor is permitted pursuant to
this Section 32. If requested by Pledgee (although the Pledgee shall
have no obligation to make any such request), the Borrower shall furnish legal
opinions (from counsel acceptable to the Pledgee) to the effect set forth in the
immediately preceding sentence. The Pledgee shall have no liability
whatsoever to any other Secured Party as a result of the release of any Pledgor
by it in accordance with, or which it believes in good faith to be in accordance
with, this Section 32.
33. INTERCREDITOR
AGREEMENT. Notwithstanding
anything herein to the contrary, the liens and security interests granted to the
Pledgee pursuant to this Agreement in any Collateral and the exercise of any
right or remedy by the Pledgee with respect to any Collateral hereunder are
subject to the provisions of the Intercreditor Agreement, dated as of September
30, 2009 (as amended, restated, supplemented or otherwise modified from time to
time, the “Intercreditor
Agreement”), among the Issuer, the other Pledgors from time to time party
thereto, the ABL Collateral Agent and the Collateral Trustee, and certain other
Persons party or that may become party thereto from time to time. In
the event of any conflict between the terms of the Intercreditor Agreement and
this Agreement, the terms of the Intercreditor Agreement shall govern and
control.
*
* * *
IN
WITNESS WHEREOF, each Pledgor and the Pledgee have caused this Agreement to be
executed by their duly elected officers duly authorized as of the date first
above written.
|
ACCO
BRANDS CORPORATION
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Senior Vice
President, Secretary and General Counsel |
|||
|
ACCO BRANDS
USA LLC
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
DAY-TIMERS
INC.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
GENERAL
BINDING CORPORATION
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO
INTERNATIONAL HOLDINGS, INC.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
GBC INTERNATIONAL,
INC.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO BRANDS
INTERNATIONAL, INC.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO EUROPE FINANCE
HOLDINGS, LLC
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
ACCO
EUROPE INTERNATIONAL HOLDINGS
LLC
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
XXXXX
INTERNATIONAL, INC.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
POLYBLEND
CORPORATION
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
SWINGLINE,
INC.
|
|||
|
|
By:
|
/s/Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Vice President and Secretary | |||
|
Accepted
and Agreed to:
U.S. BANK NATIONAL
ASSOCIATION,
as Collateral Trustee and Pledgee
|
|||
|
|
By:
|
/s/Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | ||
| Title: | Vice President | ||
Form
of Agreement Regarding Uncertificated Securities
AGREEMENT
(as amended, modified, restated and/or supplemented from time to time, this
“Agreement”),
dated as of [_______ __, 20__], among the undersigned pledgor (the “Pledgor”),
U.S. Bank National Association, not in its individual capacity but solely as
Collateral Trustee (the “Pledgee”),
and [__________], as the issuer of the Uncertificated Securities (as defined
below) (the “Issuer”).
W
I T N E S S E T H :
WHEREAS,
the Pledgor, certain of its affiliates and the Pledgee have entered into a
Pledge Agreement, dated as of September 30, 2009 (as amended, modified, restated
and/or supplemented from time to time, the “Pledge
Agreement”; capitalized terms used herein but not otherwise defined
herein shall have the meaning set forth in the Pledge Agreement), under which,
among other things, in order to secure the payment of the Secured Debt
Obligations (as defined in the Pledge Agreement), the Pledgor has or will pledge
to the Pledgee for the benefit of the Secured Parties (as defined in the Pledge
Agreement), and grant a security interest in favor of the Pledgee for the
benefit of the Secured Parties in, all of the right, title and interest of the
Pledgor in and to any and all “uncertificated securities” (as defined in Section
8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of New
York) from time to time issued by the Issuer, whether now existing or hereafter
from time to time acquired by the Pledgor (the “Uncertificated
Securities”); and
WHEREAS,
the Pledgor desires the Issuer to enter into this Agreement in order to perfect
the security interest of the Pledgee under the Pledge Agreement in the
Uncertificated Securities, to vest in the Pledgee control of the Uncertificated
Securities and to provide for the rights of the parties under this
Agreement;
NOW
THEREFORE, in consideration of the premises and the mutual promises and
agreements contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. During
the term of the Pledge Agreement and subject to the terms of the Intercreditor
Agreement, the Pledgor hereby irrevocably authorizes and directs the Issuer, and
the Issuer hereby agrees, to comply with any and all instructions and orders
originated by the Pledgee (and its successors and assigns) regarding any and all
of the Uncertificated Securities without the further consent by the registered
owner (including the Pledgor), and, following its receipt of a notice from the
Pledgee stating that the Pledgee is exercising exclusive control of the
Uncertificated Securities, not to comply with any instructions or orders
regarding any or all of the Uncertificated Securities originated by any person
or entity other than the Pledgee (and its successors and assigns) or a court of
competent jurisdiction.
ANNEX
A
Page
2
2. The
Issuer hereby certifies that (i) no notice of any security interest, lien or
other encumbrance or claim affecting the Uncertificated Securities (other than
the security interest of the Pledgee) has been received by it, and (ii) the
security interest of the Pledgee in the Uncertificated Securities has been
registered in the books and records of the Issuer.
3. The
Issuer hereby represents and warrants that (i) the pledge by the Pledgor of, and
the granting by the Pledgor of a security interest in, the Uncertificated
Securities to the Pledgee, for the benefit of the Secured Parties, does not
violate the charter, by-laws, partnership agreement, membership agreement or any
other agreement governing the Issuer or the Uncertificated Securities, and (ii)
the Uncertificated Securities consisting of capital stock of a corporation are
fully paid and nonassessable.
4. All
notices, statements of accounts, reports, prospectuses, financial statements and
other communications to be sent to the Pledgor by the Issuer in respect of the
Issuer will also be sent to the Pledgee at the Collateral Trustee’s address
specified in Section 7.7 of the Collateral Trust Agreement.
5. Following
its receipt of a notice from the Pledgee stating that the Pledgee is exercising
exclusive control of the Uncertificated Securities and until the Pledgee shall
have delivered written notice to the Issuer that all of the Secured Debt
Obligations have been paid in full and this Agreement is terminated, the Issuer
will send any and all redemptions, distributions, interest or other payments in
respect of the Uncertificated Securities from the Issuer for the account of the
Pledgee only by wire transfers to such account as the Pledgee shall
instruct.
6. Except
as expressly provided otherwise in Sections 4 and 5, all notices, instructions,
orders and communications hereunder shall be made in accordance with Section 7.7
of the Collateral Trust Agreement and, with respect to the Issuer, at its
address indicated on the signature page hereto.
7. This
Agreement shall be binding upon the successors and assigns of the Pledgor and
the Issuer and shall inure to the benefit of and be enforceable by the Pledgee
and its successors and assigns. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever except in writing signed by the Pledgee, the Issuer and the
Pledgor.
8. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its principles of conflict of
laws.
ANNEX A
Page 3
IN
WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
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[______________________________]
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as
Pledgor
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By:
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| Name: | |||
| Title: | |||
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[______________________________]
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as the
Issuer
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By:
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| Name: | |||
| Title: | |||
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Notice address for Issuer:
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ANNEX
A
Page
4
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U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as
Collateral Trustee and
Pledgee
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By:
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| Name: | |||
| Title: | |||
Table
of Contents
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Page
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1. SECURITY
FOR OBLIGATIONS
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1
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2. DEFINITIONS
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2
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3. PLEDGE
OF SECURITIES, ETC.
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5
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3.1
Pledge
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5
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3.2
Procedures
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8
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3.3
Subsequently Acquired Collateral
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10
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3.4
Transfer Taxes
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11
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3.5
Certain Representations and Warranties Regarding the
Collateral
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11
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3.6
Limited Liability Company Interests and Partnership
Interests
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11
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4. APPOINTMENT
OF SUB-AGENTS; ENDORSEMENTS, ETC.
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12
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5. VOTING,
ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT
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12
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6. DIVIDENDS
AND OTHER DISTRIBUTIONS
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12
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7. REMEDIES
IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT
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13
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8. REMEDIES,
CUMULATIVE, ETC.
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14
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9. APPLICATION
OF PROCEEDS
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15
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10. PURCHASERS
OF COLLATERAL
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15
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11. INDEMNITY
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15
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12. PLEDGEE
NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER
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16
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13. FURTHER
ASSURANCES; XXXXX-XX-XXXXXXXX
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00
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00. THE
PLEDGEE AS COLLATERAL TRUSTEE
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18
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15. TRANSFER
BY THE PLEDGORS
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18
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16. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PLEDGORS
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18
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17. LEGAL
NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR
A
TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION; LOCATION;
ORGANIZATIONAL
IDENTIFICATION NUMBERS; FEDERAL EMPLOYER IDENTIFICATION NUMBERS; CHANGES
THERETO; ETC.
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20
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i
Table
of Contents
(continued)
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Page
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18. PLEDGORS’
OBLIGATIONS ABSOLUTE, ETC.
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21
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19. SALE
OF COLLATERAL WITHOUT REGISTRATION
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22
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20. TERMINATION;
RELEASE
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23
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21. NOTICES,
ETC
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24
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22. WAIVER;
AMENDMENT
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24
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23. SUCCESSORS
AND ASSIGNS
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24
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24. HEADINGS
DESCRIPTIVE
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24
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25. GOVERNING LAW;
SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
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24
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26. PLEDGOR’S
DUTIES
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25
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27. COUNTERPARTS
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25
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28. SEVERABILITY
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26
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29. RECOURSE
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26
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30. ADDITIONAL
PLEDGORS
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26
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31. LIMITED
OBLIGATIONS
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26
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32. RELEASE
OF PLEDGORS
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26
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33. INTERCREDITOR
AGREEMENT
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27
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SCHEDULE
1
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COLLATERAL
ACCOUNTS
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ANNEX
A -
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FORM
OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES
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ii
