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EXHIBIT 10.2
THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS OF THE INTERCREDITOR AND
COLLATERAL AGREEMENT DATED FEBRUARY 29, 2000 (REFERRED TO HEREIN AS THE
COLLATERAL SHARING AGREEMENT), AS THE SAME MAY BE AMENDED, MODIFIED OR OTHERWISE
SUPPLEMENTED FROM TIME TO TIME, BY AND AMONG ALTIVA FINANCIAL CORPORATION, VALUE
PARTNERS, LTD., AS ORIGINAL PURCHASER OF CERTAIN CONVERTIBLE NOTES ISSUED BY
ALTIVA AND THE HOLDERS FROM TIME TO TIME OF THE OBLIGATIONS ARISING UNDER THE
EXCHANGE AGREEMENT, AS DEFINED HEREIN.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
This AMENDED AND RESTATED PLEDGE and SECURITY AGREEMENT, dated as of
February 29, 2000 for reference purposes only (as amended, supplemented or
otherwise modified from time to time, this "Pledge Agreement"), is entered into
between ALTIVA FINANCIAL CORPORATION, a Delaware corporation (the "Borrower"),
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and VALUE PARTNERS, LTD., a Texas limited partnership,
having its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, as the initial purchaser (the "Initial Purchaser") of the Notes, as
defined herein, issued pursuant to the Purchase Agreement, as defined herein,
and any subsequent registered owners of the Notes sold, assigned or otherwise
transferred in accordance with the Purchase Agreement and the Notes (who are
referred to collectively as the "Noteholders"). All Exhibits attached hereto are
by this reference incorporated herein.
W I T N E S S E T H
WHEREAS, on August 31, 1999, the Borrower and the Initial Purchaser
entered into that certain Secured Convertible Note Purchase Agreement (the
"First Purchase Agreement"), which First Purchase Agreement is incorporated
herein by reference, which provided for the loan by the Noteholders of
$7,000,000.00 in the aggregate to be evidenced by the issuance by the Borrower
of 12% Secured Convertible Notes due 2006 (the "First Notes") to the Initial
Purchaser in the aggregate principal amount of $7,000,000.00; and
WHEREAS, concurrently with the execution and delivery of the First
Purchase Agreement, the Borrower issued the First Notes to the Initial
Purchaser; and
WHEREAS, in order to induce the Initial Purchaser to purchase the First
Notes, on August 31, 1999 the Borrower entered into that certain Pledge and
Security Agreement (the "First Pledge Agreement") pursuant to which the Borrower
granted to the Initial Purchaser as agent for the account of the Noteholders
(the "Agent") (a) a first priority lien and security interest in certain
Collateral, as defined therein, and (b) a subordinated lien and security
interest in certain collateral at that time pledged to and subject to the
security interest of Greenwich Capital Financial Products, Inc., a Delaware
corporation pursuant to that certain Pledge and
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Security Agreement, dated April 17, 1997, which subordinated lien became a first
priority lien and security interest on such date or dates of the Borrower's
satisfaction of its indebtedness and obligations to Greenwich secured by such
collateral; and
WHEREAS, in order to induce the Initial Purchaser to purchase the
Notes, the Borrower has agreed to grant to the Noteholders a first priority lien
and security interest in the Textron Collateral, as defined herein, pledged by
the Borrower to Textron Financial Corporation ("Textron") pursuant to the
Textron Documents, as defined herein, and to deliver to the Collateral Agent on
behalf of the Noteholders the Textron Collateral, together with appropriate
endorsements in blank, within ten (10) Business Days of the date the security
interest of Textron in the Textron Collateral is extinguished; and
WHEREAS, on December 13, 1999 the Borrower and the Initial Purchaser
entered into that certain Amendment #1 to the First Purchase Agreement (the
"Second Purchase Agreement"), which Second Purchase Agreement is incorporated
herein by reference, pursuant to which the parties agreed to increase the
principal amount of 12% Secured Convertible Notes by $250,000.00; and
WHEREAS, in order to induce the Initial Purchaser to purchase the note
in the principal sum of $250,000.00 issued pursuant to the Second Purchase
Agreement (the "Second Note"), the Borrower and the Initial Purchaser entered
into that certain Amendment #1 to Pledge and Security Agreement, dated December
13, 1999 (the "Second Pledge Agreement"), pursuant to which the First Pledge
Agreement was affirmed, amended, modified, confirmed, extended, renewed and
increased to provide that the Second Note was subject to the pledge of
Collateral granted to secure repayment of the First Note pursuant to the terms
of the First Pledge Agreement; and
WHEREAS, concurrently with the execution and delivery of the Second
Purchase Agreement and the Second Pledge Agreement, the Borrower issued the
Second Note to the Initial Purchaser; and
WHEREAS, on or about December 31, 1999, the Borrower and the Initial
Purchaser entered into that certain Amendment #2 to the First Purchase Agreement
(the "Third Purchase Agreement"), pursuant to which the parties agreed to
increase the principal amount of 12% Secured Convertible Notes by $1,750,000.00,
of which $750,000.00 was funded on December 31, 1999 and $1,000,000.00 on
January 5, 2000; and
WHEREAS, to induce the Initial Purchaser to purchase the note in the
principal sum of $1,750,000.00 (the "Third Note") issued pursuant to the Third
Purchase Agreement, the Borrower and Initial Purchaser entered into that certain
Amended and Restated Pledge and Security Agreement, dated for reference purposes
only as of December 31, 1999 (the "Third Pledge Agreement"), pursuant to which
the liens and rights granted in the First Pledge Agreement and the Second Pledge
Agreement were affirmed, amended, modified, confirmed, extended, increased and
renewed; and
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WHEREAS, concurrently with the execution and delivery of the Third
Purchase Agreement and the Third Pledge Agreement, the Borrower issued the Third
Note to the Initial Purchaser; and
WHEREAS, in addition to the Collateral pledged to secure repayment in
the First Pledge Agreement and the Second Pledge Agreement, the Borrower in the
Third Pledge Agreement granted a first lien and security interest in the Pledged
Shares, as defined herein, up to $2,000,000.00 aggregate principal amount of
Notes purchased by the Initial Purchaser on or after December 30, 1999,
consisting of the Third Note and an additional note or notes in the principal
amount of $250,000.00, if issued; and
WHEREAS, on February 2, 2000, the Borrower and the Initial Purchaser
entered into Amendment #3 to the First Purchase Agreement (the "Fourth Purchase
Agreement"), which Fourth Purchase Agreement is incorporated herein by
reference, pursuant to which the parties agreed to increase the principal amount
of 12% Secured Convertible Notes by $700,000.00; and
WHEREAS, to induce the Initial Purchaser to purchase the note in the
principal amount of $700,000.00 (the "Fourth Note") issued pursuant to the
Fourth Purchase Agreement, the Borrower and the Initial Purchaser entered into
Amendment #1 to the Amended and Restated Pledge and Security Agreement, dated
for reference purposes only as of February 2, 2000 (the "Fourth Pledge
Agreement"), pursuant to which the liens and rights granted in the First, Second
and Third Pledge Agreements were affirmed, amended, modified, confirmed,
increased and renewed, including an increase in the first lien and security
interest in the Pledged Shares to $2,450,000.00 as additional security for the
Third Note and Fourth Note; and
WHEREAS, concurrently with the execution and delivery of the Fourth
Purchase Agreement and the Fourth Pledge Agreement, the Borrower issued the
Fourth Note to the Initial Purchaser; and
WHEREAS, on February 11, 2000, the Borrower and the Initial Purchaser
entered into Amendment #4 to the First Purchase Agreement (the "Fifth Purchase
Agreement," and together with the First, Second, Third and Fourth Purchase
Agreements, the "Prior Purchase Agreements"), which Fifth Purchase Agreement is
incorporated herein by reference, pursuant to which the parties agreed to
increase the principal amount of 12% Secured Convertible Notes by $300,000.00;
and
WHEREAS, to induce the Initial Purchaser to purchase the note in the
principal amount of $300,000.00 (the "Fifth Note," and together with the First,
Second, Third and Fourth Notes, the "Prior Notes") issued pursuant to the Fifth
Purchase Agreement, the Borrower and the Initial Purchaser entered into
Amendment #2 to the Amended and Restated Pledge and Security Agreement, dated
for reference purposes only as of February 11, 2000 (the "Fifth Pledge
Agreement"), pursuant to which the liens and rights granted in the First,
Second, Third and Fourth Pledge Agreements (together with the Fifth Pledge
Agreement, the "Prior Pledge Agreements") were affirmed, amended, modified,
confirmed, increased and renewed, including
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an increase in the first lien and security interest in the Pledged Shares to
$2,750,000.00 as additional security for the Third Note, the Fourth Note and the
Fifth Note; and
WHEREAS, concurrently with the execution and delivery of the Fifth
Purchase Agreement and the Fifth Pledge Agreement, the Borrower issued the Fifth
Note to the Initial Purchaser; and
WHEREAS, on or about February 29, 2000, the Borrower and the Initial
Purchaser entered into that certain Amended and Restated Secured Convertible
Senior Note Purchase Agreement, (as amended, supplemented or otherwise modified
from time to time the "Purchase Agreement"), which Purchase Agreement is
incorporated herein by reference, which provides for the purchase by the Initial
Purchaser of an Amended and Restated Note in the aggregate principal amount of
$14,000,000.00 (the "Sixth Note"), in return for the surrender of the First
Note, the Second Note, the Third Note, the Fourth Note and the Fifth Note, which
had an aggregate principal amount of $1,000,000.00, and the payment of
$4,000,000.00 by the Initial Purchaser to the Company; and
WHEREAS, to induce the Initial Purchaser to purchase the Sixth Note,
the Borrower has agreed to enter into this Pledge Agreement, dated for reference
purposes only as of February 29, 2000, pursuant to which the liens and rights
granted in the First Pledge Agreement, the Second Pledge Agreement, the Third
Pledge Agreement, the Fourth Pledge Agreement and the Fifth Pledge Agreement are
affirmed, amended, modified, confirmed, extended, reinstated, increased and
renewed as set forth herein; and
WHEREAS, pursuant to the Fifth Pledge Agreement, the first lien and
security interest in the Pledged Shares was limited to up to $2,750,000.00
aggregate principal amount of Notes purchased by the Noteholders on or after
December 30, 1999, which limitation is removed herein and the Pledged Shares
shall be collateral as to all Notes; and
WHEREAS, concurrently with the execution and delivery of the Purchase
Agreement and this Pledge Agreement, the Borrower issued the Sixth Note to the
Initial Purchaser; and
WHEREAS, pursuant to this Pledge Agreement, all rights and interests of
the Agent granted pursuant to the Prior Pledge Agreements are assigned to the
Noteholders; and
WHEREAS, on November 26, 1996 and in October 1997, the Borrower
collectively issued $80,000,000.00 principal amount of 12 1/2% Senior
Subordinated Notes Due 2001 to certain holders thereof, which notes subsequently
were exchanged for $ 45,100,000.00 principal amount of 12 1/2% Subordinated
Notes due 2001 (the "Existing Subordinated Notes") and 42,500 shares of
Borrower's Series A Preferred Stock, par value $.01; and
WHEREAS, as a condition to the Purchase Agreement, the Borrower shall
enter into an Exchange Agreement (the "Exchange Agreement"), with the holders of
not less than ninety-two percent (92%) of the Existing Subordinated Notes,
pursuant to which notes exchanged for the
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Existing Subordinated Notes shall be granted certain liens on the Collateral, as
set forth herein; and
WHEREAS, the Borrower, the Initial Purchaser, and the Collateral Agent,
as agent for the Noteholders, the holders of the Replacement QIB Notes (as
defined herein) and the holders of the Replacement Non-QIB Notes (as defined
herein) have entered into the Collateral Sharing Agreement to set forth the
interests of the respective parties thereto in the Collateral; and
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower and the Noteholders hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used herein, the following terms shall have
the following meanings:
"Accounts" shall have such meaning as such term is defined in Article 9
of the UCC, and shall include, without limitation, each of the following,
whether now owned or hereafter acquired by the Borrower: (a) all accounts
receivable, contract rights, book debts, notes, drafts and other obligations or
indebtedness owing the Borrower (including, without limitation, any such
obligation that might be characterized as an account, contract right, or general
intangible under the UCC in effect in any jurisdiction) and all monies due to or
to become due to the Borrower under all contracts for the sale, lease, or
exchange of goods or other property (whether or not earned by performance on the
part of the Borrower), in each case whether now in existence or hereafter
arising or acquired, including, without limitation, the right to receive the
proceeds thereof; (b) all rights of the Borrower to receive any payment of money
or other form of consideration; (c) all security pledged, assigned or granted to
or held by the Borrower to secure any of the foregoing; and (d) all guaranties
of, or indemnifications with respect to, any of the foregoing.
"Additional Collateral" means property acceptable to the registered
holders of not less than a majority in aggregate principal amount of the
Majority QIB Holders, then outstanding in writing, in their sole and absolute
discretion.
"Agent" shall have the meaning specified in the third recital paragraph
hereof.
"Borrower" shall have the meaning specified in the introductory
paragraph hereof.
"Business Day" means any day other than Saturday, Sunday or other day
on which banking institutions in Atlanta, Georgia or New York, New York are
authorized or required by law or executive order to be closed.
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"Certificates" means any security, chattel paper, certificated security
or instrument, as from time to time amended, modified or supplemented, including
the following: any Residual Interest Instrument, any Interest Only Instrument,
the Senior Trust Certificate, the Pledged Shares and a Certificated Security as
defined in Section 8-102 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 specified in Section 2.1.
"Collateral Agent" means United States Trust Company of New York, in
its capacity as agent of the Noteholders for the purposes set forth in Section
2.2 hereof and as set forth in the Collateral Sharing Agreement, and any
successors and assigns thereof under the Collateral Sharing Agreement.
"Collateral Sharing Agreement" shall mean that certain Intercreditor
and Collateral Sharing Agreement in the form attached hereto as Exhibit "A" and
by this reference incorporated herein.
"Default" has the meaning set forth in Article I of the Notes.
"Delivery" means a delivery of Collateral to the Noteholders or the
Collateral Agent (as the case may be) in accordance with this Pledge Agreement,
including Section 2.2 hereof.
"Event of Default" has the meaning set forth in Section 5.1 of the
Notes.
"Exchange Notes" means the Replacement QIB Notes and the Replacement
Non-QIB Notes.
"Exchange Pledge Agreements" means that certain Pledge and Security
Agreement dated as of the date hereof pursuant to which the holders of the
Replacement QIB Notes are granted a first lien in all Collateral (other than the
Pledged Shares, in which a second lien is granted ) and that certain Pledge and
Security Agreement dated as of the date hereof pursuant to which the holders of
the Replacement Non-QIB Notes are granted a first lien in the Pledged Shares,
each as governed by the Collateral Sharing Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, consistently applied.
"Governmental Authority" means any nation, government, state, or any
political subdivision thereof, or any court, stock exchange, entity or agency
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Grantor Trust Right" means all rights of the Borrower, including the
right to payments to the Borrower, in the Sale Agreement executed in relation to
Mego Mortgage Home Loan Trust
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1996-3, including, without limitation, the rights set forth in Section
4.05(b)(xvii) of such Sale Agreement.
"Indebtedness" has the meaning set forth in Section 2 of the Notes.
"Indenture" means the Indenture, dated as of February 29, ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as Trustee, together
with any amendment, modifications, supplements or restatements thereof.
"Interest Only Instrument(s)" shall, as to that particular Certificate,
have the meaning ascribed to the term "Class S Certificate", "Class IS
Certificate, "Class IIS Certificate" or a similar phrase describing an interest
only security in the respective Sale Agreement arising from the Securitization
pursuant to which such security is issued, which security represents the
undivided interest of the Borrower in all or a portion of the interest payments
due on certain loans securitized in that Securitization.
"Loan Documents" means, collectively, the Purchase Agreement, the
Notes, this Pledge Agreement, the Collateral Sharing Agreement, the Registration
Rights Agreement and any other documents evidencing or relating to the Notes or
the Collateral, the Additional Collateral or any such security which may now or
hereafter be given as further security for or in connection with the Notes.
"Majority Holders" means the registered holders of not less than fifty
percent (50%) in aggregate principal amount of the Notes then outstanding
(except to the extent that a beneficial owner is treated as a registered holder
pursuant to Section 14.16 hereof).
"Majority QIB Holders" means the registered holders of not less than
fifty percent (50%) in aggregate principal amount of the Notes and Replacement
QIB Notes, considered as a single class, then outstanding (except to the extent
that beneficial owners are treated as registered holders pursuant to Section
14.16 hereof).
"Noteholders" has the meaning specified in the introductory paragraph
of this Pledge Agreement.
"Notes" means the 12% Secured Convertible Senior Notes due 2006 issued
by the Borrower pursuant to the Purchase Agreement and the terms of such 12%
Secured Convertible Senior Notes due 2006, as such notes may be amended,
supplemented or otherwise modified from time to time.
"Outstanding" or "outstanding" has the meaning given to it in the
Indenture.
"Person" means any individual, partnership, corporation, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, or governmental entity (or any department, agency
or political subdivision thereof), or any other entity.
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"Pledge Agreement" shall have the meaning specified in the first
paragraph hereof.
"Pledged Shares" shall mean any and all shares of stock or other
evidence of equity or ownership interest of the Borrower in The Money Centre,
Inc. (either as record owner or beneficially), including but not limited to
those shares set forth on Exhibit "D" attached hereto and by this reference
incorporated herein, including any such interests which may be acquired after
the date hereof and the certificates or stock representing all such items. This
shall include all of the issued and outstanding shares of capital stock of The
Money Centre, Inc. in existence until expiration of the Pledge Agreement.
"Prior Loan Documents" means the Prior Notes, the Prior Pledge
Agreements and the Prior Purchase Agreements.
"Prior Notes" has the meaning specified in the sixteenth recital
paragraph hereof.
"Prior Pledge Agreements" has the meaning specified in the sixteenth
recital paragraph hereof.
"Prior Purchase Agreements" has the meaning specified in the fifteenth
recital paragraph hereof.
"Purchase Agreement" has the meaning specified in the eighteenth
recital paragraph hereof.
"Quarter" means any fiscal quarter ended on the last day of the months
of February, May, August and November.
"Registration Rights Agreement" shall have the meaning set forth in the
Purchase Agreement.
"Replacement QIB Notes" means those notes issued to those holders of
Existing Subordinated Notes pursuant to the Exchange Agreement which holders are
Qualified Institutional Buyers within the meaning of Rule 144A of the Securities
Act.
"Replacement Non-QIB Notes" means those notes issued to those holders
of Existing Subordinated Notes pursuant to the Exchange Agreement which holders
are not Qualified Institutional Buyers within the meaning of Rule 144A of the
Securities Act.
"Residual Interest Instrument(s)" shall, as to that particular
Certificate, have the meaning ascribed to the term "Class R Certificate",
"Residual Interest Instrument", "Residual Certificate", "Residual Instrument" or
a similar phrase describing a certificated residual interest in the Sale
Agreement arising from the Securitization pursuant to which such security is
issued, which security represents the undivided residual interest of the holder,
including in all or a portion of the interest and principal payments due on
certain loans securitized in that Securitization.
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Neither the Grantor Trust Right nor the Senior Trust Certificate are Residual
Interest Instruments.
"Sale Agreement" means the respective Pooling and Servicing Agreement,
Sale and Servicing Agreement or similar agreement, together with related
agreements, including trust agreements and indentures, which create and grant
rights in Certificates and the Grantor Trust Right, entered into or otherwise
issued in relation to a particular Securitization.
"Securities Act" means the Securities Act of 1933, as now in effect and
as hereafter amended from time to time.
"Securitization" means the respective securitization as set forth on
Exhibit "E" hereto and by this reference incorporated herein.
"Senior Trust Certificate" means that certain 125 Home Loan Owner Trust
1998-1, Senior Trust Certificate.
"Textron" shall have the meaning specified in the fourth recital
paragraph hereof.
"Textron Collateral" means those Certificates and all other rights
presently pledged to Textron as described in Exhibit "F" attached hereto and by
this reference incorporated herein.
"Textron Documents" means that certain Credit Agreement dated as of
October 27, 1997 by and between Textron, as agent, and the Borrower, that
certain note as of the same date issued to the lenders under such Credit
Agreement and all related documents, including that certain Security Agreement
dated as of October 27, 1997, financing statements and transfer powers, all as
amended, supplemented or otherwise modified.
"UCC" means the Uniform Commercial Code as in effect in the State of
Maryland; provided, that if by mandatory provisions of law, the perfection or
effect of perfection or non-perfection of the security interest in any
Collateral to which this Pledge Agreement relates is governed by the Uniform
Commercial Code as in effect on or after the date hereof in any other
jurisdiction, UCC means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection
or the effect of perfection or non-perfection.
"Uncertificated Security" shall have the meaning given such term in
Section 8-102(a)(18) of the UCC.
ARTICLE II
PLEDGE AND DELIVERY OF COLLATERAL
MANAGEMENT OF COLLATERAL
2.1 Security. Subject to the rights of the holders of the Exchange
Notes set forth in the Exchange Pledge Agreements as governed by the Collateral
Sharing Agreement, as security
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for the payment (whether at the stated maturity, by acceleration or otherwise)
of all obligations, liabilities and indebtedness of the Borrower to the
Noteholders, whether now or hereafter owing or existing, arising under or
relating to this Pledge Agreement, the Notes and the other Loan Documents, and
for the payment, performance and discharge of all other obligations or
undertakings now or hereafter made for the benefit of the Noteholders under this
Pledge Agreement, the Notes, the other Loan Documents or under any other
agreement, promissory note or undertaking now existing or hereafter entered into
by the Borrower with or to the Noteholders pursuant to the terms hereof,
including any guaranty or surety obligations of the Borrower owed to the
Noteholders arising under or relating to this Pledge Agreement, the Notes and
the other Loan Documents, the Borrower hereby pledges, assigns, transfers and
delivers to the Noteholders, and grants to the Noteholders (and which as to
Collateral pledged pursuant to the Prior Pledge Agreements shall also constitute
a confirmation, extension, renewal and affirmation of such liens), a continuing
first priority lien and security interest (except as noted below or, in the case
of Additional Collateral, as otherwise agreed by the Majority QIB Holders in
accepting the same) in all of the Borrower's rights, title and interest in, to
and under: (a) the Certificates representing the Collateral; (b) the Grantor
Trust Right, subject to the Securitizations; (c) the Pledged Shares and
Certificates; (d) any other property of the Borrower held by the Noteholders,
the Replacement QIB Noteholders, the Replacement Non-QIB Noteholders or the
Collateral Agent on behalf of the Noteholders arising under or relating to the
Loan Documents, from time to time, or securing any other obligation of the
Borrower to the Noteholders or any of their respective affiliates; (e)
Additional Collateral; and (f) all proceeds, payments, income, products and
profits derived from or related to the above-described property (all of the
foregoing are collectively referred to herein as the "Collateral"). The
agreements and related documents evidencing the Grantor Trust Right and the
Certificates, as well as related documents comprising such Collateral are set
forth on Exhibit "C" and Exhibit "D" attached hereto and by this reference
incorporated herein. The Pledged Shares described in Exhibit "D" and the
Residual Interest Instruments, Senior Trust Certificate and Interest Only
Instruments described on Exhibit "C" and Exhibit "F" (attached hereto and by
this reference incorporated herein) are Certificates, all of which are
Collateral.
The Collateral shall include all rights of the Borrower related to the
Collateral, the Additional Collateral and any other Collateral pledged pursuant
to the terms hereof, including the following:
(a) Cash Proceeds. All rights to receive the payment of money in
respect of the Collateral, including the Certificates and Grantor Trust Right.
(b) Chattel Paper, Instruments, etc. All chattel paper, securities,
uncertificated securities, instruments, non-negotiable instruments, negotiable
instruments, investment property, general intangibles, documents (as those terms
are defined in the UCC), Accounts and Certificates evidencing or with respect to
any of the Collateral.
(c) Deposit Accounts. All rights to payments under the Collateral,
including payments due to the holders of Certificates and the Grantor Trust
Right from the accounts of the trustee (or other Person) into which funds to be
payable under Certificates and the Grantor Trust
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Right are deposited or held under a Securitization, and all money, cash and cash
equivalents of the Borrower, in each case arising from payments with respect to
any of the Collateral, including the Certificates and the Grantor Trust Right or
other Collateral.
(d) Collateral. All collateral granted by third party obligors to, or
held by, the Borrower with respect to the Collateral, including the Certificates
and the Grantor Trust Right.
(e) Books and Records. All books and records, including books of
account and ledgers of every kind and nature, all electronically recorded data
(including all computer programs, disks, tapes, electronic data processing media
and software used in connection with maintaining the Borrower's books and
records), all files and correspondence and all receptacles and containers for
the foregoing, all with respect to the Collateral, including Certificates and
the Grantor Trust Right.
(f) Cash. All cash and other property held under this Pledge Agreement.
(g) Miscellaneous. All right, title, interest in, to and under the
clean-up call provisions, including as contained in Section 9.01 of each of the
Sale Agreement with respect to the subject Securitization, and all proceeds,
payments and income derived from or relating thereto.
(h) Proceeds and Products. All proceeds and products of the Collateral,
to the extent not included in the foregoing, including;
(i) all distributions arising from and pursuant to
the designated trust agreements or other Securitization
agreements (including Sales Agreements) with respect to the
Collateral,
(ii) all other proceeds of insurance and guarantees,
if any, with respect to the Collateral provided by MBIA
Insurance Corporation, the Federal Housing Administration or
any other Person providing coverage for loss or diminution in
value of the Collateral;
(iii) all other proceeds from the liquidation or
other recovery (if any) of loans relating to the Collateral;
(iv) all "proceeds", as that term is defined in
Section 9-306 of the UCC;
(v) all cash, securities, dividends, increases,
distributions and profits received therefrom or in connection
therewith, including distributions or payments in partial or
complete liquidation or redemption, or as a result of
reclassifications, readjustments, reorganizations or changes
in the capital structure of the issuer thereof and any other
property at any time and from time to time received,
receivable or otherwise distributed or delivered to the
Noteholders or the
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Collateral Agent on behalf of the Noteholders, and all rights
and privileges pertaining thereto;
(vi) all additional shares of stock of any issuer of
any Certificate from time to time acquired by the Borrower in
any manner, and all dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of
such shares;
(vii) all securities hereafter delivered to the
Noteholders or the Collateral Agent in substitution for, or in
addition to, any of the foregoing, all certificates
representing or evidencing such securities, and all cash,
securities, instruments, documents, dividends, increases,
distributions and profits received therefrom, and any other
property at any time and from time to time received by,
receivable by or otherwise distributed or delivered to the
Noteholders or the Collateral Agent in respect of or in
exchange for any or all of the property described;
(viii) all subscriptions, warrants, options and any
other rights issued now or hereafter by the issuer of the
Certificates or any other person whatsoever upon or in
connection with the Certificates and any part of the
Collateral; and
(ix) all products and proceeds of the foregoing and
all general intangibles and contract rights related thereto,
including without limitation, all revenues, distributions,
dividends, property, registration rights, contract rights and
other rights and interests that Borrower is, or may hereafter
become, entitled to receive on account of any collateral
described above.
Borrower shall forthwith deliver to the Collateral Agent on behalf of the
Noteholders all subscriptions, warrants, options and all such other rights, and
upon delivery to the Collateral Agent, the Collateral Agent shall hold, on
behalf of the Noteholders, such subscriptions, warrants, options and other
rights as Collateral pledged to secure the obligations of Borrower, provided,
however, that if the registered holders of not less than fifty percent (50%) in
aggregate principal amount of the Exchange Notes and the Notes, considered as a
single class, then outstanding, to whom such Collateral is pledged determine, in
their sole discretion, that the value of any such subscriptions, warrants,
options or other rights shall terminate, expire or be materially reduced in
value by holding the same as Collateral, such Persons shall have the right (but
not the obligation), in their sole discretion, to direct the Collateral Agent to
sell or exercise the same; and if exercised, then the monies disbursed by the
Collateral Agent in connection therewith shall become part of the Collateral and
all of the stock, securities, evidences of indebtedness and other items so
acquired shall become part of the Collateral;
The Borrower will pay all filing, recording, search and other expenses
reasonably incurred by the Collateral Agent and each Noteholder with respect to
perfection of the Noteholders' security interest under this Pledge Agreement and
the confirmation of the priority of the Noteholders' security interest in the
Collateral.
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2.2 Delivery of Collateral.
(a) Delivery of Collateral to the Collateral Agent on behalf of the
Noteholders under this Pledge Agreement shall be made in the following manner:
(i) in the case of cash, including proceeds on the Collateral and cash which
constitutes Additional Collateral, by wire transfer or other method acceptable
to the Collateral Agent of immediately available funds; (ii) in the case of a
Certificate (or similar property perfected by possession), by the physical
delivery thereof evidencing such Collateral to the Collateral Agent or its
designee, either, at the election of the Majority QIB Holders (A) registered in
the name of a Noteholder as designated by the Majority QIB Holders (which shall
be Value Partners, Ltd. unless otherwise consented to by the Majority Holders),
and (B) in all other instances, in suitable form for delivery and transfer,
accompanied by duly executed instruments of transfer or assignment in blank or
such other documentation as may be necessary to effect transfer to the
Noteholders, whereupon, at the election of the Majority QIB Holders, the
Collateral Agent may take such steps as it deems necessary to effect the
recordation or re-registration of such Collateral in the name designated by the
Majority QIB Holders (which shall be in the name of Value Partners, Ltd. so long
as it is a Replacement QIB Noteholder or Noteholder, unless otherwise consented
to by Value Partners, Ltd. ); (iii) with respect to an Uncertificated Security
by registration in the name designated by the Majority Holders, whenever
possible, and in all other instances (other than an Uncertificated Security
credited on the books of a Clearing Corporation), the Borrower shall cause the
issuer of such Uncertificated Security to duly authorize and execute, and
deliver to the Collateral Agent, an agreement for the benefit of the Noteholders
substantially in the form of Exhibit "G" hereto (appropriately completed to the
satisfaction of the Collateral Agent and with such modifications, if any, as
shall be satisfactory to the Collateral Agent) pursuant to which such issuer
agrees to comply with any and all instructions originated by the Collateral
Agent or Majority Holders without further consent by the registered owner and
not to comply with instructions regarding such Uncertificated Security
originated by any other Person other than a court of competent jurisdiction
(Exhibit "G" shall be executed as to the Grantor Trust Right, even if not an
Uncertificated Security); (iv) with respect to a certificated security or
Uncertificated Security (as those terms are defined in the UCC) credited on the
books of a Clearing Corporation (including a Federal Reserve Bank, Participants
Trust Company or The Depository Trust Company), the Borrower shall promptly
notify the Collateral Agent thereof and shall promptly take all actions (x)
required (i) to comply with the applicable rules of such Clearing Corporation
and (ii) to perfect the security interest of the Noteholders under applicable
law (including, in any event, under Sections 9-115 (4)(a) and (b), 9-115 (1)(e)
and 8-106(d) of the UCC) and (y) as the Collateral Agent deems necessary or
desirable to effect the foregoing; and (v) in the case of any other Collateral
(such Collateral to be subject to the written approval of the Collateral Agent,
which approval may be withheld in the sole discretion of the Collateral Agent),
in such manner as the Collateral Agent shall agree to in writing. Except as
otherwise provided herein or, in the case of Additional Collateral, as otherwise
agreed by the Collateral Agent in accepting the same, all Collateral shall be
delivered free and clear of all liens and security interests other than the lien
and security interest created in favor of the Noteholders under this Pledge
Agreement and as provided in the Exchange Pledge Agreements and the Collateral
Sharing Agreement. Collateral delivered pursuant to the Prior Pledge Agreements
shall be retained by Value Partners, Ltd. and transferred to the Collateral
Agent at such time a the Collateral Agreement becomes effective. Current
possession of the Collateral by the Noteholders shall be deemed uninterrupted.
PAGE 13
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(b) In addition to the actions required to be taken pursuant to
preceding Section 2.2(a), the Borrower shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such Borrower whereby or
with respect to which the Noteholders may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any other provision of the UCC as
the same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of Maryland), the Borrower shall take
all actions as may be requested from time to time by the Majority Holders so
that "control" of such Collateral is obtained and at all times held by the
Majority Holders; and
(ii) Borrower shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) 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 respective Noteholder), to be filed in the relevant filing
offices so that at all times the Noteholders have a security interest in all
Collateral which is 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 9-115(4)(b)
of the UCC).
(c) Pursuant to the Collateral Sharing Agreement, the Collateral Agent
is appointed agent of the Noteholders for the purpose of retaining physical
possession of the Collateral which may be perfected by possession and as to all
other actions permitted in the Collateral Sharing Agreement, including
enforcement of rights and remedies of the Noteholders.
2.3 Assignment. In the First, Second, Third, Fourth and Fifth Pledge
Agreements, Value Partners, Ltd. was named as agent on behalf of the
Noteholders. Because there is presently only one Noteholder (Value Partners,
Ltd.) and because a Collateral Agent has been appointed for certain purposes,
all rights granted to the Agent in the Prior Pledge Agreements are granted to
the Noteholders. Certain of those rights and duties are assigned or assumed by
the Collateral Agent, as set forth herein or in the Collateral Sharing
Agreement. Rights granted the Collateral Agent herein are also deemed granted to
the Noteholders.
2.4 Notice, Registration and Consents.
On or prior to the date a Certificate, the Grantor Trust Right or any
other property becomes or is to become Collateral, the Borrower shall:
(a) obtain all requisite consents necessary to provide to the
Noteholders the rights granted in this Pledge Agreement, including the grant and
perfection of the Noteholders of a security interest in such Collateral and, in
the case of registered or certificated Collateral, to (at the sole discretion of
the Majority QIB Holders) deliver the Certificates with duly endorsed powers in
blank or deliver the Certificates or, in the discretion of the Majority QIB
Holders, cause the registration thereof (on the books of the Securitization
trustee, certificate transfer agent and registrar or similar Person) in the name
of Value Partners, Ltd. (or such other person as
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consented to by Value Partners, Ltd. and if Value Partners, Ltd. is no longer a
Noteholder or Replacement QIB Noteholder, in the name as designated by the
Majority QIB Noteholders) on behalf of the Noteholders as provided in Section
2.2(a); and
(b) provide all requisite notices necessary to provide to the
Noteholders the rights granted in this Pledge Agreement, including the grant and
perfection of the Noteholders' security interest in such Collateral, including
the notice set forth in Exhibit "G" attached hereto and by this reference
incorporated herein.
Notices and consents shall include notices to and consents of the
indenture trustee and the certificate transfer agent and registrar of any
Securitization.
2.5 Reserved.
2.6 Shared Collateral and Textron Collateral.
(a) Pursuant to the Collateral Sharing Agreement, (i) the lien granted
the holders of the Replacement QIB Notes by the Borrower under the Exchange
Pledge Agreement relating to such notes is pari passu with the lien in the
Collateral granted the Noteholders; which pari passu lien shall constitute a
first lien and security interest on all Collateral except the Pledged Shares and
a subordinated lien on the Pledged Shares, subject only to the first lien
thereon granted to the holders of the Replacement Non-QIB Notes in the Exchange
Pledge Agreement relating to such notes, and (ii) the holders of the Replacement
Non-QIB Notes are granted a first lien and security interest in the Pledged
Shares, with any recovery of proceeds from such Pledged Shares not to exceed
such sums as necessary to permit a pro-rata recovery of value equal to that of
the Noteholders and the holders of the Replacement QIB Notes.
(b) On the date Textron's security interest in the Textron Collateral
is terminated in accordance with the terms of the Textron Documents, the Textron
Collateral shall be deemed Collateral as if it were set forth in Section 2.1 and
included on Exhibit "C". Other than the prompt delivery of such Textron
Collateral (and delivery of appropriate endorsements in blank and all
certificates and documents required by the Securitization trustee) to the
Collateral Agent on behalf of the Noteholders for purposes of registration in
the name of Value Partners, Ltd. (or the designee of the Majority Holders) on
behalf of the Noteholders, the Borrower represents and warrants that no further
action on the part of the Borrower is required to obtain an effective perfected
pledge of the Textron Collateral. Commencing at such time the Noteholders shall
have a first priority lien and security interest therein pursuant to this Pledge
Agreement (subject to the pari passu lien of the holders of the Replacement QIB
Notes) and the Borrower shall within ten (10) Business Days after the expiration
of Textron's security interest deliver to the Collateral Agent and register in
the name of Value Partners, Ltd. (including in compliance with Section 2.2)
those items on Exhibit "F" hereto, together with any other such documents
necessary to perfect the Noteholders' first priority lien and security interest
therein and to grant control to the Noteholders under Article 8 with no further
action necessary to obtain such a grant.
PAGE 15
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2.7 Reserved.
2.8 Held in Trust. Any sums collected or received and any property
recovered or possessed by the Borrower in connection with the Collateral, which,
under the terms of this Pledge Agreement, should have been delivered to the
Collateral Agent or the Noteholders, shall be received and held by the Borrower
in trust for and on the Noteholders' behalf, shall be segregated from the other
assets and funds of the Borrower, and shall be delivered to or the Collateral
Agent for the benefit of the Noteholders.
ARTICLE III
FURTHER ASSURANCES
Subject to the terms of the Textron Documents and the Collateral
Sharing Agreement, the Borrower will, from time to time, at its expense,
execute, deliver, file, register, and record (in such manner and form as the
Majority Holders or Collateral Agent may require) any statement, assignment,
stock powers, instrument, document, agreement, or other paper and take any other
action (including, without limitation, any filings of financing or continuation
statements under the UCC) that the Majority Holders or Collateral Agent may from
time to time determine to be necessary or desirable in order to create,
preserve, upgrade in rank (to the extent required hereby), perfect, confirm, or
validate the lien and first or other priority security interests granted the
Noteholders, or to enable the Noteholders to obtain the full benefits of this
Pledge Agreement (including control, as that term is used in Articles 8 and 9 of
the UCC), and to enable the Noteholders to exercise and enforce any of its
rights, powers, and remedies hereunder with respect to any of the Collateral.
At the request of the Majority Holders or the Collateral Agent, the
Borrower will use its reasonable best efforts to obtain the consent or
acknowledgement of any Person that is necessary or desirable to effect the
pledge hereunder of any right, title, claims, and benefits now owned or
hereafter acquired by the Borrower.
To the extent permitted by law, the Borrower hereby authorizes the
Collateral Agent and each Noteholder to execute and file financing statements or
continuation statements without the Borrower's signature appearing thereon. The
Borrower agrees that a carbon, photographic, or other reproduction of this
Pledge Agreement or of a financing statement is sufficient as a financing
statement. The Borrower shall pay the costs of, or incidental to, any financing
or continuation statements concerning the Collateral. In the event that any
re-recording or refiling thereof (or filing of any statements of continuation or
assignment of any financing statement) is required to protect and preserve such
security interest, the Borrower, at its own cost and expense, shall cause the
same to be re-recorded and/or refiled at the time and in the manner requested by
the Collateral Agent or Majority Holders.
The Borrower hereby authorizes the Noteholders and the Collateral Agent
to file or refile any financing statements, continuation statements, and/or
amended statements with respect to the security interests granted or to be
granted pursuant to this Pledge Agreement which, at any time, may be required or
appropriate, although the same may have been executed only by the Collateral
Agent or the Noteholders, and to execute such statements on behalf of the
Borrower.
PAGE 16
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In addition, in the event and to the extent that any of the Collateral
consists of or is represented by Certificates, including instruments or other
evidences of ownership such as would require physical possession of the same in
order to perfect the security interests therein, subject to the terms of the
Collateral Sharing Agreement and the Textron Documents, the Borrower will
promptly, at its expense, deliver the same to the Collateral Agent, with any
necessary endorsements thereon. Upon the Majority Holders' request, subject to
the terms of the Collateral Sharing Agreement and the Textron Documents, the
Borrower shall promptly deliver any documents related to any of the Collateral
and provide the Noteholders all information each may reasonably request
concerning the Collateral. The Borrower will take all steps requested by the
Collateral Agent or Majority Holders to perfect a security interest in the
Additional Collateral, including delivery of physical possession, the granting
of control, the execution and delivery of assignments and/or endorsements, the
registration thereof in the name or names designated by the Majority QIB
Holders, and the execution of financing statements. The Borrower hereby
irrevocably designates each Noteholder and the Collateral Agent for the account
of the Noteholders as agent and attorney-in-fact for the Borrower for the
aforesaid purposes.
ARTICLE IV
COVENANTS
4.1 No Liens. Subject to the terms of the Textron Documents, the
Exchange Pledge Agreements and the Collateral Sharing Agreement, the Borrower
shall not, without the prior written consent of the holders of the majority in
aggregate principal amount of the Notes and the Exchange Notes, acting as a
single class, at the time outstanding, in any manner, transfer, assign or
further encumber or permit the encumbrance of the Borrower's interest in the
Collateral. If the Collateral, or any part thereof, is sold or otherwise
disposed of in violation of these provisions, the security interest of the
Noteholders shall continue in such Collateral or any part thereof
notwithstanding such sale or other disposition, and the Borrower will deliver
any proceeds thereof to the Collateral Agent.
4.2 Loan Documents. The Borrower shall at all times during the term of
this Pledge Agreement comply with all of the affirmative covenants, negative
covenants and other terms and provisions contained in the Loan Documents.
4.3 Consents. On the date Collateral is pledged, the Borrower shall
have obtained all consents of the respective issuer of any Collateral and of any
third party necessary for an effective pledge thereof, including the consent of
any Governmental Authority.
4.4 Textron Collateral. Subject to the terms of the Exchange Pledge
Agreement relating to the Replacement QIB Notes and the Collateral Sharing
Agreement, the Borrower shall take all action which is necessary or advisable in
order for the Noteholders to obtain, and the Noteholders shall receive, a first
priority lien and security interest in the Textron Collateral not less than ten
(10) Business Days following the date the lien of Textron in the Textron
Collateral terminates.
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4.5 Reserved.
4.6 Taxes. All payments due the Noteholders under the Loan Documents
shall be made without set-off or counterclaim and free and clear of any
deductions, including deductions for taxes, unless the Borrower is required by
law to make such deductions. If (a) any Noteholder shall be subject to any tax
with respect to any such payment (other than income or franchise taxes), or (b)
the Borrower shall be required to withhold or deduct any tax on any such
payment, then such Noteholder may claim compensation from the Borrower under
Section 4.7. Whenever taxes must be withheld by the Borrower with respect to any
such payments, the Borrower shall promptly furnish to the Noteholders official
receipts (to the extent that the relevant governmental authority delivers such
receipts) evidencing payment of any such taxes so withheld. If the Borrower
fails to pay any such taxes when due or fails to remit to the Noteholders the
required receipts evidencing payment of any such taxes so withheld or deducted,
the Borrower shall indemnify the affected Noteholder for any incremental taxes
and interest or penalties that may become payable by such Noteholder as a result
of any such failure.
4.7 Compensation Claims. Within fifteen (15) days after the receipt by
the Borrower of a certificate from the a Noteholder setting forth why such
Noteholder is claiming compensation under Section 4.6 and computations (in
reasonable detail) of the amount thereof, the Borrower shall pay to such
Noteholder such additional amounts as such Noteholder sets forth in such
certificate as sufficient fully to compensate it on account of the foregoing
provisions of Section 4.6, together with interest on such amount from the 15th
day after receipt of such certificate until payment in full thereof at the
applicable interest rate on the Notes which is then in effect. The reasonable
determination of such Noteholder of the amount to be paid to it and the basis
for computation thereof hereunder shall, in the absence of manifest error, be
conclusive. In determining such amount, such Noteholder may use any reasonable
averaging and attribution methods.
4.8 Other Information. The Borrower shall use its best efforts to, and
cause the trustee or servicing agent for a Securitization to, enable each
Noteholder's authorized officers and representatives, during normal business
hours upon reasonable notice and at reasonable intervals, to examine documents,
bank statements and other records and to make copies and notes therefrom for the
purpose of ascertaining the financial condition of the Borrower and its
subsidiaries and the condition of the Collateral, provided, however, that any
such examination shall be at the Borrower's expense, including all reasonable
and necessary travel expenses, but excluding salaries for the officers and
representatives conducting such examination.
4.9 Books and Records. The Borrower shall at all times keep its records
concerning the Collateral at its chief executive office and principal place of
business (which shall be one and the same) as set forth in this Pledge
Agreement, or so long as the Borrower shall have taken all steps reasonably
necessary to perfect the Noteholders' security interest in the Collateral with
respect to such new address, at such other address as the Borrower may specify
by notice actually received by the Collateral Agent and the Noteholders not less
than (10) Business Days prior to such change of address.
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4.10 Insurance Policies. The Borrower grants to the Collateral Agent on
behalf of the Noteholders full power and authority as its attorney-in-fact,
effective upon notice to the Borrower after the occurrence and during the
continuance of an Event of Default, to adjust and settle any insurance policy
owned by the Borrower insuring against loss to the Collateral, to endorse any
drafts thereon and to sign receipts for any payments thereunder. Any amounts
that the Collateral Agent on behalf of the Noteholders receives under any such
policy (including return of unearned premiums) insuring against loss to the
Collateral shall be delivered to the Collateral Agent to be held as Collateral.
4.11 Performance of Securitization Obligations. The Borrower shall
perform all servicing and other obligations required to be performed by it under
the Securitization agreements or any other agreement relating to the Collateral
and the Textron Collateral.
4.12 Protection of the Collateral. All Collateral shall be free and
clear of any liens and restrictions on the transfer hereof, except as
specifically permitted or granted herein. The Borrower shall defend the title to
the Collateral against all claims and demands which could have an effect on the
Noteholders' rights or privileges hereunder. Except as set forth in the
Securitization documents, the Collateral Sharing Agreement, the Exchange Pledge
Agreements and the Textron Documents, the Borrower shall keep the respective
Collateral free and clear of all liens, claims, security interests, restrictions
of transfer, charges, encumbrances, taxes and assessments, and shall pay all
taxes, assessments and fees relating to the Collateral. The Borrower will
exclude from contracts to which it becomes a party after the date hereof
provisions that would prevent the Borrower from creating and maintaining in
favor of the Noteholders a security interest in the Collateral as pledged
hereby. The Borrower shall not modify, amend or waive any terms or conditions of
the Collateral or the Textron Collateral (including the waiver of a default), or
any rights or interest therein, without the prior written consent of the
registered holders of not less than fifty percent (50%) in aggregate principal
amount of the Exchange Notes and the Notes, considered as a single class, then
outstanding that have a security interest in such Collateral. The Borrower will
not sell, assign, transfer or otherwise dispose of any of the Collateral. The
Borrower will not take any action or suffer to exist any conditions that could
have an adverse effect on the Noteholders' rights (including, without
limitation, the security interest in the Collateral) granted hereunder, subject
to the Textron Documents.
4.13 Applicable Law. The Borrower will not use any of the
Collateral in violation of any applicable law.
4.14 Reserved.
4.15 Records. The Borrower shall allow each Noteholder to inspect all
records of the Borrower relating to the Collateral or to the Notes, and to make
and take away copies of such records.
4.16 Notice of Change. The Borrower shall promptly notify the
Noteholders of any change in any fact or circumstances warranted or represented
by the Borrower in this Pledge
PAGE 19
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Agreement or in any other writing furnished by the Borrower to the Noteholders
in connection with the Collateral or the obligations.
4.17 Notice of Claims. The Borrower shall promptly notify the
Noteholders of any claim, action or proceeding affecting title to the
Collateral, or any part thereof, or the security interest herein, and, at the
request of the Majority Noteholders, appear in and defend, at the Borrower's
expense, any such action or proceeding.
4.18 Rule 144. The Borrower will cooperate fully with the Noteholders
and the Collateral Agent with respect to any sale by the Collateral Agent of any
of the Collateral, including full and complete compliance with all requirements
of Rule 144 under the Securities Act and will give to the Collateral Agent all
information and will do all things necessary, including the execution of all
documents, forms, instruments, and other items, to comply with Rule 144 and any
and all other rules, regulations or laws of the United States or the appropriate
state necessary for the complete and unrestricted sale and/or transfer of the
Collateral and will exercise its best efforts to have the issuer of such
collateral, upon the request of the Collateral Agent, publicly disseminate all
information required to satisfy Rule 144(c).
4.19 Merger. The Borrower shall not vote for, or consent to, any
amendment of the articles of incorporation or charter of any issuer of
Collateral that might materially adversely affect the value of the Collateral or
permit the issuer thereof to merge or consolidate with or into any other
corporation, firm or entity.
4.20 Dividends and Other Distributions. Unless and until an Event of
Default shall have occurred and be continuing, all ordinary cash dividends shall
be paid to the Borrower. The Collateral Agent on behalf of the Noteholders shall
be entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, instruments or other
securities or property (including, but not limited to, cash dividends
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, 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;
(iii) all other or additional stock, instruments or other
securities or property (including, but not limited to, cash) 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 reorganization; and
(iv) all other property (other than cash) paid or distributed
by way of dividend or distribution in respect of the Collateral.
All dividends, distributions or other payments which are received by
the Borrower contrary to the provisions of this Section 4.20 or Section 5 shall
be received in trust for the benefit of the Noteholders, shall be segregated
from other property or funds of the Borrower and
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shall be forthwith paid over to the Noteholders as Collateral in the same form
as so received (with any necessary endorsement).
Except as expressly provided for in this Agreement, all payments
received by the Collateral Agent with respect to the Collateral, shall, at the
Collateral Agent's option, be deposited in a special interest bearing account at
a bank (which may be, but need not be, a trust account or escrow account
maintained at the Collateral Agent) to be designated by the Collateral Agent in
the name of the Noteholders and the holders of the Replacement QIB Notes and the
Replacement Non-QIB Notes, as applicable, styled "Collateral Account". Funds in
said account are hereby assigned to the Collateral Agent on behalf of the
Noteholders and shall be impressed with a lien to secure the Notes, and shall be
applied by the Collateral Agent as provided for herein. Nothing herein shall
restrict the right of the Collateral Agent to exercise rights regarding the
distribution of proceeds as provided in Section 9-207 of the applicable UCC (or
a similar provision).
ARTICLE V
REMEDIES
5.1 Remedies. If an Event of Default shall have occurred and be
continuing, then the Collateral Agent may, without limitation, to the fullest
extent permitted by applicable law, but subject to the Collateral Sharing
Agreement and the Textron Documents, exercise any or all of the following
rights:
(a) Proceed to exercise any rights or remedies the Noteholders may have
hereunder or under the Notes or any other Loan Documents or otherwise;
(b) Pursue, consecutively or cumulatively, any rights or remedies the
Noteholders may have at law, equity or otherwise, including all rights and
remedies available to secured parties under the applicable UCC provisions;
(c) Cancel or otherwise terminate any additional obligations to fund
without prior notice to the Borrower (and the Borrower will be liable to the
Noteholders for any resulting loss, costs and expenses), and the Collateral
Agent (or Noteholders) may: (i) set off any obligation to the Borrower hereunder
or thereunder against any obligation of the Borrower to the Noteholders
hereunder or thereunder; and (ii) realize upon property securing any obligation
to Noteholders hereunder or thereunder;
(d) Require the Borrower to, upon the Collateral Agent's request,
assemble the Collateral and otherwise make it available to the Collateral Agent.
The Collateral Agent may have a receiver appointed for all or any portion of the
Borrower's assets or business which constitutes the Collateral in order to
manage, protect, preserve, sell and otherwise dispose of all or any portion of
the Collateral in accordance with the terms of the Loan Documents, to continue
the operations of the Borrower and to collect all revenues and profits therefrom
to be applied to the payment of the Notes, including the compensation and
expenses of such receiver. Any Noteholder may offset and apply toward the
payment of the Notes (and/or toward the curing of any Event of Default) any
indebtedness from that Noteholder to the Borrower, including any
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indebtedness represented by deposits in any account maintained with any
Noteholder, regardless of the adequacy of any security for the Notes. The
Noteholders shall have no duty to determine the adequacy of any such security in
connection with any such offset;
(e) To the extent specified in written notice from the Collateral Agent
to the Borrower take any of the following actions (for the sole benefit of the
Noteholders but at the Borrower's expense):
(i) To ask for, demand, take, collect, ▇▇▇ for and receive all
payments in respect of any Collateral which the Borrower could otherwise ask
for, demand, take, collect, ▇▇▇ for and receive for its own use;
(ii) To extend the time of payment of any Collateral and to make
any allowance or other adjustment with respect thereto;
(iii) To settle, compromise, prosecute or defend any action or
proceeding with respect to any Collateral and to enforce all rights and remedies
thereunder which the Borrower could otherwise enforce;
(iv) To enforce the payment of any Collateral, either in the name
of the Borrower or in its own name, and to endorse the name of the Borrower on
all checks, drafts, money orders and other instruments tendered to or received
in payment of indebtedness to the Noteholders;
(v) To notify the third party payor with respect to any
Collateral of the existence of the security interest created hereby and to cause
all payments in respect thereof thereafter to be made directly to the Collateral
Agent, provided, however, that whether or not the Collateral Agent shall have so
notified such payor, the Borrower will at its expense render all reasonable
assistance to the Collateral Agent in collecting such items and in enforcing
claims thereon;
(vi) To sell, transfer, assign or otherwise deal in or with any
Collateral or the proceeds thereof, as fully as the Borrower otherwise could do;
(vii) To receive all amounts payable in respect of the
Collateral otherwise payable under Section 4.20 to the Borrower;
(viii) To vote all or any part of the Collateral (whether or not
transferred into the name of the Collateral Agent or the Noteholders) 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
(the Borrower hereby irrevocably constituting and appointing the Collateral
Agent the proxy and attorney in fact of the Borrower, with full power of
substitution to do so); and
(ix) To transfer all or any part of the Collateral into the
Collateral Agent's name or the name of its nominee or nominees;
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(f) All or any part of the Collateral may be sold for cash or other
value, and the proceeds thereof applied against any amounts owed to the
Noteholders by the Borrower, in any number of lots at public or private sale in
a commercially reasonable manner, without demand, advertisement or notice,
provided, however, that the Collateral Agent shall give the Borrower 10 days'
prior written notice by first class mail, postage prepaid, to the Borrower's
address as set forth in Section 14.3 of the time and place and proposed terms of
any public sale, or the time after which a private sale may be made, which
notice each of the Borrower and the Collateral Agent agrees to be reasonable. At
any sale or sales of Collateral, the Collateral Agent or the Noteholders or any
of their officers acting on their behalf, or their assigns, may bid for and
purchase all or any part of the property and rights so sold, may use all or any
portion of the indebtedness owed to the Noteholders as payment for the property
or rights so purchased, and upon compliance with the terms of such sale may hold
and dispose of such property and rights without further accountability to the
Borrower, except for the proceeds of such sale or sales pursuant to Article X.
The Borrower acknowledges that any such sale will be made by the Collateral
Agent or the Noteholders on an "as is" basis with disclaimers of all warranties,
whether express or implied. The Borrower will execute and deliver or cause to be
executed and delivered such instruments, documents, assignments, waivers,
certificates and affidavits, will supply or cause to be supplied such further
information and will take such further action, as the Collateral Agent or the
Majority Holders shall reasonably request in connection with any such sale. The
Collateral Agent and the Noteholders shall not be obligated to make such sale of
Collateral regardless of whether such notice of sale has theretofore been given.
Each purchaser at any such sale shall hold the property so sold absolutely free
from any claim or right on the part of the Borrower. In lieu of selling the
Collateral, the Noteholders may credit the current market value of the
Collateral, as determined in a commercially reasonable manner, all free from any
right of redemption, against any amounts owed by the Borrower to the
Noteholders; provided, however, that the Borrower shall remain liable for any
deficiency and shall pay interest on such deficiency as prescribed in the Notes
(the Borrower agreeing that, to the extent that applicable law requires the
giving of notice by the Collateral Agent to the Borrower of any such
disposition, the minimum time required by such law (or if no minimum time is
specified, one Business Day) shall constitute reasonable notice). Neither the
Collateral Agent nor any Noteholder 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 action whatsoever with regard
thereto;
(g) If, at any time when the Collateral Agent shall determine to
exercise its rights hereunder to sell all or a part of the securities included
in the Collateral, the securities in question shall not be effectively
registered under applicable law, the Collateral Agent may, in its sole
discretion, sell such securities by private or other sale not requiring such
registration in such manner and in such circumstances as the Collateral Agent
may deem necessary or advisable in order that such sale may be effected in
accordance with applicable securities laws without such registration and the
related delays, uncertainty and expense. Without limiting the generality of the
foregoing, in any event the Collateral Agent may in its sole discretion; (a)
approach and negotiate with a single purchaser or one or more possible
purchasers to effect such sale; (b) restrict such sale to one or more purchaser
each of whom will represent and agree that such purchaser is purchasing for its
own account, for investment and not with a view to the
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distribution or sale of such securities; and (c) cause to be placed on
certificates representing the securities in question a legend to the effect that
such securities have not been registered under applicable law and may not be
disposed of in violation of the provisions thereof. The Borrower agrees that
such manner of disposition is commercially reasonable, that it will, upon the
Collateral Agent's request, give any such purchaser access to such information
regarding the issuer of the securities in question as the Collateral Agent may
reasonably request and that the Collateral Agent shall not incur any
responsibility for selling all or a part of the securities included in the
Collateral at any private or other sale not requiring such registration,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration under applicable law
or until made in compliance with certain other rules or exemptions from the
registration provisions under applicable law. The Borrower acknowledges that no
adequate remedy at law exists for breach by it of this provision and that such
breach would not be adequately compensable in damages and therefore agrees that
this provision may be specifically enforced; and/or
(h) Transfer or assign the Loan Documents to any Person without the
prior written consent of the Borrower.
5.2 Cost and Expenses on Default. If an Event of Default shall have
occurred, the Collateral Agent and Noteholders shall be entitled to collect, in
addition to principal, interest and delinquency charges hereunder, all costs of
collection, including without limitation, reasonable attorneys' fees and
disbursements, incurred in connection with the protection or realization of
Collateral or in connection with any of such collection efforts, whether or not
suit on the Notes or any foreclosure proceeding is filed, and all such costs and
expenses shall be payable on demand and until paid shall also be secured by the
Collateral and other Loan Documents and by all other collateral held by the
Collateral Agent or Noteholders as security for the Borrower's obligations to
the Noteholders.
5.3 Marshaling. Neither the Collateral Agent nor any Noteholder shall
be required to make any demand upon, or pursue or exhaust any of its rights or
remedies against, the Borrower or any guarantor, pledgor or any other Person
with respect to the payment of the Notes or to pursue or exhaust any of its
rights or remedies with respect to any Collateral therefore or any direct or
indirect guarantee thereof or insurance with respect thereto. Neither the
Collateral Agent nor the Noteholders shall be required to marshal the Collateral
or any guarantee of the Notes or to resort to the Collateral or any such
guarantee in any particular order, and all of its rights hereunder or under any
other Loan Document shall be cumulative. To the extent it may lawfully do so,
the Borrower absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against the Collateral Agent or the
other Noteholders, any valuation, stay, appraisement, extension, redemption or
similar laws now or hereafter existing which, but for this provision, might be
applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Pledge Agreement, or otherwise. Without limiting the generality of the
foregoing, the Borrower: (a) agrees that it will not invoke or utilize any law
which might prevent, cause a delay in or otherwise impede the enforcement of the
rights of the Collateral Agent or the Noteholders in the Collateral; (b) waives
all such laws; and (c) agrees that it will not invoke or raise as a
PAGE 24
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defense to any enforcement by the Collateral Agent or any Noteholder of any
rights and remedies relating to the Collateral or the Notes, any legal or
contractual requirement with which the Collateral Agent or any Noteholder may
have in good faith failed to comply. In addition, the Borrower waives any right
to prior notice (except to the extent expressly required by the other provisions
of this Pledge Agreement) or judicial hearing in connection with foreclosure on
or disposition of any Collateral, including any such right which the Borrower
would otherwise have under the Constitution of the United States of America, any
state or territory thereof or any other jurisdiction. The Borrower 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.
5.4 Any action or decision to be made by the Noteholders hereunder or
direction provided to the Collateral Agent hereunder may be by the Majority QIB
Holders. All rights in this Section granted to the Collateral Agent are deemed
are also granted to the Noteholders. So long as the Collateral Agent is
authorized and capable of exercising such rights under the Collateral Sharing
Agreement, it shall be permitted to do so.
ARTICLE VI
CONTINUING SECURITY INTEREST
The Borrower shall not assign or otherwise transfer this Pledge
Agreement or any interest herein without the Majority Holders' prior written
consent. This Pledge Agreement shall create a continuing security interest in
the Collateral and shall: (a) remain in full force and effect until the final
payment in full of all amounts payable under the Notes and the other Loan
Documents; (b) bind the Borrower, its successors and permitted assigns; and (c)
inure to the benefit of the Noteholders and their successors, transferees and
assigns.
Subject to the requirements of Sections 3.2 of the Purchase Agreement,
upon transfer of Notes, each Noteholder may transfer its interest in the Loan
Documents to any of its successors or assigns, by notice to the Borrower, and
such other person or entity shall thereupon be vested with all the benefits in
respect thereof granted to such Noteholder herein or otherwise; provided that
such successor or assign has agreed in a writing, which shall be delivered to
the Borrower, to assume all of the obligations of the respective Noteholder
under the Loan Documents.
ARTICLE VII
REPRESENTATIONS, WARRANTIES
AND ADDITIONAL COVENANTS OF BORROWER
7.1 Representations and Warranties. The Borrower represents and
warrants to the Noteholders continuously throughout the term of the Notes, that:
(a) The Collateral is owned by the Borrower free and clear of all
liens, claims or encumbrances, except for those granted Noteholders herein
(except as provided in the Collateral Sharing Agreement and the Exchange Pledge
Agreements, and as to the Textron Collateral, the security interest of Textron,
and as to the Certificates and the Grantor Trust Right, subject to the
PAGE 25
26
applicable Securitization). Except as disclosed in this Pledge Agreement, none
of the Collateral is subject to any option to purchase or similar rights of any
Person;
(b) All Collateral (other than cash, the Grantor Trust Right or
Additional Collateral consented to in writing) shall be evidenced by
certificates or instruments, which certificates or instruments shall, pursuant
to Section 2.2, be endorsed in blank or be registered in the name as designated
by the Majority Holders (initially Value Partners, Ltd.) and delivered to the
Collateral Agent with any related assignment forms, duly completed by the
Borrower, required by the Securitization agreements (or as to the Textron
Collateral, shall be subject to the Textron Documents until such registration
and delivery as provided herein). The Borrower will, promptly upon the receipt
thereof, deliver to the Collateral Agent any certificate or similar instrument
representing any of such Collateral, together with appropriate, duly executed
assignment forms, in accordance with the terms hereof. The Borrower will take
all steps necessary to register the pledge to the Collateral Agent or
Noteholders, as requested by the Majority Holders (or ownership if requested by
the Majority Holders in writing) on the books of the issuer, purchaser, trustee
or custodian, as the case may be, with respect to all Collateral that is not
evidenced by certificates or other instruments in accordance with the terms
hereof;
(c) The Borrower has obtained any and all permits, licenses, approval
and consents of any Governmental Authority and any third party as may be
required to own, purchase, pledge, sell or otherwise dispose of the Collateral
and to conduct or to transact its business or own, lease or operate its
properties and is in material compliance with all applicable requirements of
law;
(d) Subject to the Exchange Pledge Agreements, the lien of Textron as
provided in the Textron Documents, and the Collateral Sharing Agreement, the
lien created by this Pledge Agreement constitutes a first priority perfected and
enforceable security interest in the Collateral in favor of the Noteholders; on
each occasion which the Borrower makes a Delivery of Collateral to the
Collateral Agent, the Borrower will be the sole record and beneficial owner of
that Collateral (until registration thereof as provided in Section 2.2) and
will, subject to the terms of this Pledge Agreement, have the right to receive
all payments (subject to the terms of any sales and servicing or pooling and
servicing agreement, indenture or any similar agreement pursuant to which the
Certificates were issued or to which the Grantor Trust Right or any other right
or interest arose) on the Collateral, in each case free and clear of all liens
and security interests other than the lien of this Pledge Agreement, and those
liens set forth above in this paragraph;
(e) Except for financing statements contemplated or permitted by this
Pledge Agreement, the Exchange Pledge Agreements or the Collateral Sharing
Agreement, there are no financing statements or other actions required under the
UCC or similar law of any state or jurisdiction required in connection with the
grants of security interests to the Noteholders set forth in this Pledge
Agreement;
(f) No representation or warranty made by or on behalf of Borrower
contained in any Loan Document and no information (written or oral),
certificate, financial statement or report furnished or to be furnished by or on
behalf of the Borrower thereunder or in connection with the transactions
contemplated thereby, contains or will contain an untrue statement of a material
fact,
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27
or, omits or will omit to state any material fact (including without limitation,
whether, to the best knowledge of Borrower, Borrower or any of its respective
officers or directors (past or present) is (or during the last five (5) years
has been) under civil or criminal investigation by a Governmental Authority or
is under indictment by any Governmental Authority) necessary to make the
statements herein or therein contained, in light of the circumstances in which
made, not misleading;
(g) The Borrower does not have any reason to believe that it will not
be able to perform in all material respects all covenants and agreements to be
performed by it under this Pledge Agreement and each of the other Loan
Documents;
(h) Each of the representations and warranties of the Borrower
contained in the other Loan Documents is true and correct;
(i) The right of Borrower to receive a residual cash payment pursuant
to Section 4.05(b)(xvii) of the sale Agreement arising from the Mego Mortgage
Home Loan Trust 1996-3 is non-certificated and is evidenced only by the Sale
Agreement arising from that Securitization;
(j) Any Residual Interest Instrument pledged as Collateral shall
represent the right of the holder thereof to receive one hundred percent (100%)
of the residual interest in the interest and principal payments due on the
underlying loans securitized in that Securitization, except as follows: (a)
Class R Certificate R-0001, 1996-3 represents the right to receive one hundred
percent (100%) of the residual interests in Group 1 Loans, as that term is
defined in the Sale Agreement for that Securitization; and (b) Residual Interest
Instrument No. 1 1997-1 and Residual Certificate ▇▇. ▇, ▇▇▇▇-▇ each represent
the right to receive ninety-nine percent (99%) of the residual interest in the
respective Securitization;
(k) Except as disclosed on Schedule I hereto, there is no circumstance
presently in existence which prohibits the receipt of payment of obligations due
pursuant to the terms of the Certificates and the Grantor Trust Right pledged as
Collateral;
(l) To the best of Borrower's knowledge, all of the Collateral has been
duly and validly authorized, issued, is fully paid and non-assessable and is
subject to no options to purchase or similar rights;
(m) Each Pledged Share is validly authorized, issued, is fully paid and
non assessable and is subject to no option to purchase or similar rights;
(n) The execution, delivery and consummation of this Pledge Agreement
will not violate the charter or bylaws of the Borrower or the issuer of any
Collateral or any law, regulation, mortgage, indenture, contract, instrument,
judgment or decree applicable to or binding on the Borrower or the issuer of any
Collateral;
(o) The Pledged Shares constitute and shall at all times constitute one
hundred percent of the issued and outstanding voting and nonvoting stock of The
Money Centre;
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(p) The Borrower has held the Pledged Shares, free and clear of all
liens, encumbrances and debt, and borne the full economic risk thereof since the
time of acquisition thereof on August 31, 1999 and at no time during said period
did the Borrower hold any short position in the Pledged Shares or option to sell
such shares, and at no time during such period did any other party hold a short
position in the Pledged Shares or an option to sell such shares;
(q) Other than as provided in the Collateral Sharing Agreement and the
Exchange Pledge Agreements, the pledge, collateral assignment to the Noteholders
and delivery to and continuous possession by the Collateral Agent of the
Collateral consisting of certificated securities pursuant to this Pledge
Agreement creates a valid and perfected first priority security interest in such
securities and the proceeds thereof, 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 the Borrower which would include the Collateral and
the Noteholders are 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; and
(r) "Control" (as defined in Section 8-106 of the UCC) has been
obtained by the Noteholders over all Collateral consisting of securities with
respect to which such "control" may be obtained pursuant to Section 8-106 of the
UCC.
ARTICLE VIII
THE AGENT MAY PERFORM
The Borrower hereby appoints any officer, general partner or agent of
the Collateral Agent and/or the Noteholders as the Borrower's true and lawful
attorney-in-fact with full authority in the place and stead of the Borrower and
in the name of the Collateral Agent or the Noteholders (as the case may be) or
otherwise, from time to time in the Collateral Agent's or the Majority Holders'
discretion, to take any action and to execute any agreements, documents and
instruments which the Collateral Agent or the Majority Holders may deem
necessary or advisable to accomplish the purpose of this Pledge Agreement. The
powers conferred on the Collateral Agent or the Noteholders (as the case may be)
hereunder are solely to protect the Noteholders' interest in the Collateral and
shall not impose any duty upon the Collateral Agent or the Noteholders to
exercise any such powers. All authorization and agencies herein contained with
respect to the Collateral are irrevocable and powers coupled with an interest.
ARTICLE IX
CUSTODY OF COLLATERAL
Except as provided by applicable law that cannot be waived, neither the
Noteholders nor the Collateral Agent will have any duty as to the custody and
protection of the Collateral, the collection of any part thereof or of any
income thereon or the preservation or exercise of any rights pertaining thereto,
including rights against prior parties, except for the use of reasonable care in
the custody and physical preservation of any Collateral in its possession.
Neither the Noteholders nor the Collateral Agent will be liable or responsible
for any loss or damage to any
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Collateral, or for any diminution in the value thereof, by reason of the act or
omission of any agent selected by the Collateral Agent or the Noteholders acting
in good faith.
ARTICLE X
APPLICATION OF COLLATERAL AND PROCEEDS
Subject to the Collateral Sharing Agreement, the proceeds of any sale
of, or other realization upon, all or any part of the Collateral shall be
applied in the order set forth in Section 5.3 of the Notes.
ARTICLE XI
SECURITY INTEREST ABSOLUTE
All rights of the Noteholders hereunder and the interest and all
obligations of the Borrower hereunder shall be absolute and unconditional
irrespective of:
(a) except as expressly provided in Section 14.9, any lack of
validity or enforceability of the Loan Documents or any other agreement or
instrument relating to the Loan Documents;
(b) any change in the time, manner or place of payment of, or
in any other term of, the Loan Documents, or any renewal or extension of the
Loan Documents or any other amendment or waiver of or any consent to any
departure from this Pledge Agreement or any other agreement or instrument;
(c) any sale, exchange, release or nonperfection of any of the
Collateral, or any release of any guarantor or any person liable in any manner
for the collection of the Notes, or any amendment or waiver of or consent to or
departure from any guaranty or the Loan Documents; or
(d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower in respect of any of the
Loan Documents.
ARTICLE XII
REMEDIES CUMULATIVE
Each right, power and remedy of the Collateral Agent and the
Noteholders provided for in this Pledge Agreement or any other Loan 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 Collateral Agent or the
Noteholders of any one or more of the rights, powers or remedies provided for in
this Pledge Agreement or any other Loan Document or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by the Collateral Agent of all such other rights, powers or
remedies, and no failure or delay on the part of the Collateral Agent to
exercise any such right, power or remedy shall operate as a waiver thereof.
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30
Unless otherwise required by the Loan Documents, no notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar other circumstances or constitute waiver of any of the
rights of the Collateral Agent to any other or further action in any
circumstances without demand or notice. The obligations of the Borrower under
the Loan Documents are with full recourse to the Borrower and the Borrower shall
remain liable for any deficiency upon the exercise of remedies by Collateral
Agent.
ARTICLE XIII
REFERENCES IN PLEDGE AGREEMENT AND
CONFIRMATION OF LIENS
13.1 References in Pledge Agreement. All references in this Pledge
Agreement to the Notes, the Loan Documents and this Pledge Agreement shall
henceforth include references to the Notes, the Loan Documents and this Pledge
Agreement as such documents are amended, modified, extended, renewed, restated,
reinstated and increased hereby, and as such documents may, from time to time,
be further amended, modified, extended, renewed, restated, reinstated and/or
increased.
13.2 Confirmation of Liens. The Borrower hereby modifies, confirms,
extends, renews and affirms to the Noteholders the security interests, liens and
rights of any and all security for the Notes, including without limitation, the
liens, security interests and rights set forth in the Prior Loan Documents and
the Loan Documents, to secure repayment of the Notes. The Borrower confirms that
the liens, security interests and rights of the Noteholders under the Prior Loan
Documents and the Loan Documents are valid and subsisting liens, security
interests and rights against the property described therein. The Borrower
confirms that this modification shall in no manner affect or impair any of the
liens, security interests or rights securing payment of the Notes and other
obligations as set forth in the Prior Loan Documents and that none of those
liens, security interests and rights shall in any manner be waived, the purpose
of this instrument being in part to carry forward, renew and extend all those
liens, security interests and rights. The Noteholders shall have the right to
exercise all of their rights and remedies under the Loan Documents and under
applicable law upon the occurrence of any Default or Event of Default under any
of the Loan Documents and under any and all existing or future amendment,
restatement or modification to any of the Loan Documents or the terms hereof. To
the extent not provided in this Pledge Agreement, this Pledge Agreement,
including Section 2.1, shall be deemed amended to include as an obligation,
repayment of which is secured thereby, all future advances by the Noteholders to
the Borrower whether under the Loan Documents, as they may be modified, amended,
extended, restated, reinstated, renewed and/or increased from time to time, or
under other separate documents, agreements or instruments. The parties do not
intend this Pledge Agreement to constitute a novation of any Prior Pledge
Agreement.
13.3 Representations, Warranties, Covenants and Agreements of the
Borrower.
The Borrower further represents, warrants and covenants and agrees with
the Noteholders as follows:
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(a) the information set forth in the recitals of this Pledge Agreement
are true and correct in all respects and that such recitals shall be deemed a
part of this Pledge Agreement for all purposes;
(b) Except to the extent set forth in the Collateral Sharing Agreement
and the Exchange Pledge Agreements, Borrower has not pledged, transferred,
conveyed, or assigned any interest in the Collateral except to the Noteholders
pursuant to the Loan Documents.
13.4 Continued Effect.
All terms, provisions and conditions of the Loan Documents (including
all documents executed in connection herewith) shall be enforceable and binding
in accordance with their respective terms.
13.5 Waiver of Defaults.
All defaults of the Collateral Agent on behalf of the Noteholders, if
any, under the Prior Loan Documents are hereby waived.
ARTICLE XIV
RESERVED
ARTICLE XV
MISCELLANEOUS
14.1 Successors and Assigns; No Third-Party Beneficiaries. This Pledge
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns. Except as expressly set
forth herein and in the Collateral Sharing Agreement, this Pledge Agreement
shall not confer any rights, obligations, remedies or liabilities upon any
Person other than the parties hereto and their permitted successors and assigns.
14.2 GOVERNING LAW. THE PARTIES HERETO ACKNOWLEDGE THAT THE
TRANSACTIONS CONTEMPLATED BY THIS PLEDGE AGREEMENT AND THE NOTES BEAR A
REASONABLE RELATION TO THE STATE OF MARYLAND IN THAT, INTER ALIA, AN INTENDED
PARTICIPANT IN THE NOTES HAS ITS PRINCIPAL PLACE OF BUSINESS IN THE STATE OF
MARYLAND, PART OF THE NEGOTIATIONS RELATING TO THE TRANSACTIONS CONTEMPLATED
HEREBY HAS OCCURRED IN THE STATE OF MARYLAND AND THE CLOSING WILL OCCUR IN SUCH
STATE. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF.
14.3 Notices. All notices, requests, demands, claims and other
communications under this Pledge Agreement shall be in writing (unless otherwise
specified herein) and shall be
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deemed duly given if (and then two (2) Business Days after) it is sent by
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to Borrower:
Altiva Financial Corporation
Sixth Floor
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office of the Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Driver, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Initial Noteholder:
Value Partners, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bergman, ▇▇▇▇▇ & Bird, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And
Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
12th Floor
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Collateral Agent:
▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And
United States Trust Company of New York
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may send any notice, request, demand, claim or other
communications hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
14.4 Amendments; Waivers. Subject to the Collateral Sharing Agreement
and except to the extent a different percentage is authorized, this Pledge
Agreement may not be amended, modified or supplemented except in writing signed
by each of the parties hereto (or the successors and assigns thereof) or the
parties constituting the necessary percentage of Noteholders authorized to take
such actions. Each party may, by written notice to the other, extend the time
for or waive the performance of any of the obligations of such other hereunder.
The waiver by any party hereto of a breach of this Pledge Agreement shall not
operate or be construed as a waiver of any other or subsequent breach. No delay,
omission or act by a party shall be deemed a waiver of such party's rights,
powers or remedies. No course of dealing between the parties hereto shall
operate a waiver of any provision hereof.
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14.5 Payment of Expenses; Indemnity. The Borrower shall:
(a) pay or reimburse the Noteholders and the Collateral Agent on demand
for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of any amendment,
modification or supplement to, or any waiver under, any Loan Document and any
other document prepared in connection therewith, and the consummation of the
transactions contemplated thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Collateral Agent and the Noteholders;
(b) pay on demand all reasonable costs and expenses of the Noteholders
and the Collateral Agent, including, without limitation, the reasonable fees and
disbursements of counsel to the Noteholders and the Collateral Agent, in
connection with the occurrence or continuance of an Event of Default and the
enforcement, collection, protection or preservation (whether through
negotiation, legal proceedings or otherwise) of this Pledge Agreement or any
other Loan Document, the Collateral, and any obligation or any rights, remedy,
power or privilege of the Noteholders and the Collateral Agent hereunder or
thereunder;
(c) pay and hold the Noteholders and Collateral Agent harmless from and
against any and all present and future stamp, excise, recording or other similar
taxes or fees payable in connection with the execution, delivery, recording and
filing of any Loan Document and hold the Noteholders harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
to pay such taxes or fees; and
(d) indemnify and hold harmless the Noteholders and Collateral Agent
and their respective directors, officers, partners, employees and agents from
and against, any and all liabilities, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements, including, without
limitation, the reasonable fees and disbursement of counsel to the Noteholders
and Collateral Agent and such other parties, incurred by any of them in
connection with, arising out of or in any way relating to any investigation,
claim, litigation or other proceeding, pending or threatened (whether or not any
of them is designated a party thereto), in connection with, arising out of or in
any way related to this Pledge Agreement or any other Loan Document or any of
the transactions contemplated herein or therein or any use of the proceeds of
the Notes by the Borrower; provided that the Noteholders and Collateral Agent
shall not be entitled to any indemnification for any of the foregoing resulting
from their gross negligence or willful misconduct as determined by a court of
competent jurisdiction.
If, and to the extent that, the indemnity obligations of the Borrower
hereunder may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contributions to the payment and satisfaction of each of such
indemnity obligations which is permissible under applicable law.
14.6 Limited Liability. No recourse under any Loan Document shall be
had against, and no personal liability shall attach to, any officer, employee,
director, partner, affiliate, shareholder or agent of any party hereto, as such,
by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise in respect of any of the Loan Documents, it
being expressly agreed and understood that each Loan Document is solely a
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corporate or limited liability entity obligation of each party hereto, and that
any and all personal liability, either at common law or in equity, or by statute
or constitution, of every such officer, employee, director, partner, affiliate,
shareholder or agent for breaches by any party hereto of any obligation under
any Loan Document is hereby expressly waived as a condition of and in
consideration for the execution and delivery of this Pledge Agreement.
14.7 Counterparts. This Pledge Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
14.8 Severability; Interpretation. Any term or provision of this Pledge
Agreement that is invalid, illegal or unenforceable in any situation in any
jurisdiction shall not affect the validity, legality or enforceability of the
remaining terms and provisions hereof or the validity, legality or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
14.9 Usury. All agreements between Borrower and the Noteholders,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of demand or
acceleration of the Maturity Date, as that term is defined in the Notes, or
otherwise, shall the interest contracted for, charged, received, paid or agreed
to be paid to the Noteholders exceed the maximum amount permissible under the
laws of the State of Maryland (hereinafter the "Applicable Law"). If, from any
circumstance whatsoever, interest would otherwise be payable to the Noteholders
in excess of the maximum amount permissible under the Applicable Law, the
interest payable to the Noteholders shall be reduced to the maximum amount
permissible under the Applicable Law, and if from any circumstance the
Noteholders shall ever receive anything of value deemed interest by the
Applicable Law in excess of the maximum amount permissible under the Applicable
Law, an amount equal to the excessive interest shall be applied to the reduction
of the principal of the Notes and not to the payment of interest, or if such
excessive amount of interest exceeds the unpaid balance of principal of the
Notes, such excess shall be refunded to the Borrower. All interest paid or
agreed to be paid to the Noteholders shall, to the extent permitted by the
Applicable Law, be amortized, pro-rated, allocated and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest on the Notes for such full period shall not
exceed the maximum amount permissible under the Applicable Law. The Noteholders
expressly disavow any intent to contract for, charge or receive interest in an
amount which exceeds the maximum amount permissible under the Applicable Law.
This paragraph as well as a similar paragraph as set forth in the Notes shall
control all agreements between Borrower and the Noteholders.
14.10 Time is of the Essence; No Waiver; Cumulative Remedies. Time and
exactitude of each of the terms, obligations, covenants and conditions of this
Pledge Agreement are hereby declared to be of the essence.
14.11 Binding Effect. This Pledge Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and
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assigns. Subject to Article VI, a Noteholder may assign its interest in this
Pledge Agreement, and if assigned, the assignee shall be entitled, upon
notifying the Borrower, to the payment and performance of the obligations
arising under the Loan Documents and agreements of the Borrower hereunder and to
all of the rights and remedies of such Noteholder hereunder, and the Borrower
will assert no claims or defenses the Borrower may have against the Noteholders
against the assignee. The gender and number used in this Pledge Agreement are
used for reference term only and shall apply with the same effect whether the
parties are masculine, feminine, neuter, singular or plural.
14.12 Multiple Counterparts. This Pledge Agreement may be executed in
separate or multiple counterparts by the parties, and all of such counterparts
shall be considered as one and the same instrument notwithstanding the fact that
various counterparts are signed by only one or more of the parties, and all of
such Pledge Agreements shall be deemed but one and the same Pledge Agreement.
14.13 Headings. The captions and Section headings in this Pledge
Agreement are for convenience of reference only, and shall not limit or
otherwise affect the meaning or interpretation of any provision hereof.
14.14 Secured Party. This Pledge Agreement shall constitute a security
agreement, and the Noteholders shall have all of the rights in the Collateral of
a secured party, including under Articles 8 and 9 of the UCC.
14.15 Chief Executive Office; Records. The Chief Executive Office of
the Borrower is located at the address specified in the introduction. The
Borrower's state of incorporation is Delaware. The Borrower will not move its
Chief Executive Office or change its state of incorporation except to such new
location as such Borrower may establish in accordance with the last sentence in
this Section 14.15. The Borrower shall not establish a new location for such
office or change it state of incorporation until (i) it shall have given to the
Noteholders and the Collateral Agent not less than 30 days' prior written notice
of its intention so to do, clearly describing such new location and providing
such other information in connection therewith as the Noteholders and the
Collateral Agent may reasonably request and (ii) with respect to such new
location or state of incorporation, it shall have taken all action satisfactory
to the Noteholders and the Collateral Agent to maintain the security interest of
the Noteholders in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect.
14.16 Beneficial Owners. References herein to registered holders of
Notes and Exchange Notes shall be deemed to include beneficial owners of Notes
and Exchange Notes to the extent provided in the Notes and in the Indenture
relating to the Exchange Notes, respectively.
14.17 Unless and until the Exchange, as defined in the Exchange
Agreement, has been consummated with respect to not less than 92% aggregate
principal amount of Old Notes (as defined in the Exchange Agreement), (a) all
rights granted the Collateral Agent, including the right to possess the
Collateral and to enforce remedies, belong solely to the Noteholders and (b)
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all references to the holders of Exchange Notes shall be inapplicable and all
rights granted such holders shall belong to the Noteholders.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the date first above written.
VALUE PARTNERS, LTD.
By: ▇▇▇▇▇ & PARTNERS,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Partner
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ALTIVA FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇. B Meyercord
Title: Chief Executive Officer
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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