Exhibit (b)(2)
XXXX INDUSTRIES, INC.
AS A PLEDGOR
AND
EACH OF ITS SUBSIDIARIES LISTED
ON THE SIGNATURE PAGES HEREOF
AS PLEDGORS
AND
ANY OTHER PLEDGORS
THAT HEREAFTER BECOME A PLEDGOR HEREUNDER
WITH
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
-----------------------------
PLEDGE AGREEMENT
DATED AS OF
MARCH 8, 2001
-----------------------------
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of March 8, 2001 (as amended, restated,
supplemented or otherwise modified from time to time, this "AGREEMENT"), is made
by XXXX INDUSTRIES, INC., a Delaware corporation (the "PARENT"), each of the
Parent's domestic Subsidiaries (as defined in the Credit Agreement hereinafter
referred to) party hereto, as pledgors (together with the Parent, the
"BORROWERS" or the "PLEDGORS" and each a "BORROWER" or a "PLEDGOR"), and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association, as administrative
agent (in such capacity, the "ADMINISTRATIVE AGENT") for the Lenders (as defined
below).
PRELIMINARY STATEMENTS:
1. The Pledgors, the financial institutions from time to time party
thereto, as lenders (collectively, the "LENDERS" and each a "LENDER"), and the
Administrative Agent are parties to the Credit Agreement of even date herewith
(as amended, restated, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), under which the Lenders have agreed, on certain terms and
subject to certain conditions, to make loans and other extensions of credit to
the Borrowers.
2. To secure its obligations and liabilities under the Credit Agreement
and the other Loan Documents, each Pledgor has agreed to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in all
of such Pledgor's assets, as more particularly provided for in this Agreement.
AGREEMENT:
In consideration of the premises and the mutual agreements contained in
this Agreement, the Pledgors and the Administrative Agent agree as follows:
SECTION 1. INTERPRETATION.
1.1 DEFINED TERMS. All capitalized terms used in this Agreement and not
otherwise defined have the meanings assigned to such terms in the Credit
Agreement. As used in this Agreement, the following terms have the meanings
specified below (such meanings to apply equally to both the singular and plural
forms of the terms defined; whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms):
AGREEMENT means this Pledge Agreement as the same may be amended,
restated, supplemented or otherwise modified from time to time in accordance
with its terms.
COLLATERAL has the meaning set forth in SECTION 2.1.
CREDIT AGREEMENT has the meaning set forth in the PRELIMINARY
STATEMENTS.
EQUITY INTERESTS means (i) all of the partnership interests in a
general or limited partnership at any time owned or held directly by any
Pledgor, (ii) all of the membership interests in a limited liability company at
any time owned or held directly by any Pledgor and (iii) all of the equity
interests (other than Stock) in any other form of organization at any time owned
or held directly by any Pledgor.
FOREIGN SUBSIDIARY means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
FOREIGN SUBSIDIARY VOTING STOCK means the voting Stock or voting Equity
Interest of any Foreign Subsidiary.
GOVERNING DOCUMENTS has the meaning as set forth in SECTION 3.2.
INTERCOMPANY AND THIRD PARTY NOTES means all promissory notes,
debentures, bonds, evidences of indebtedness and similar securities from time to
time issued to, or held by, any Pledgor, but shall not include any promissory
notes or other similar evidences of indebtedness of any employees of any Pledgor
that are from time to time issued to or held by such Pledgor.
ISSUER means the issuer of any Stock, Intercompany and Third Party
Notes or Equity Interests.
LENDER has the meaning as set forth in the PRELIMINARY STATEMENTS.
PLEDGED ENTITY means the Issuer of any Pledged Equity Interests.
PLEDGED EQUITY INTERESTS has the meaning as set forth in SECTION
2.1(c).
PLEDGED NOTES has the meaning as set forth in SECTION 2.1(b).
PLEDGED STOCK has the meaning as set forth in SECTION 2.1(a).
REVISED ARTICLE 9 means the version of the 1999 Official Text of
Article 9 of the Uniform Commercial Code with conforming amendments to Articles
1, 2, 2A, 4, 5, 6, 7 and 8 adopted in the State of Illinois.
STOCK means all of the issued and outstanding shares of stock of any
corporation at any time directly owned by any Pledgor.
SECURITY INTEREST means the security interest granted by a Pledgor
and/or by all Pledgors, as applicable, pursuant to SECTION 2.1 hereof.
UNIFORM COMMERCIAL CODE means the Uniform Commercial Code, as at any
time adopted and in effect in the State of Illinois, specifically including and
taking into account all amendments, supplements, revisions and other
modifications of the Uniform Commercial Code that hereafter are adopted or
otherwise take effect.
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1.2 UNIFORM COMMERCIAL CODE TERMS. Except as otherwise indicated, all
terms not specifically defined in this Agreement that are defined, or used, in
Revised Article 9 have the respective meanings assigned to such terms in Revised
Article 9.
1.3 ACCOUNTING TERMS. Except as otherwise indicated, all accounting
terms not specifically defined in this Agreement shall be construed in
accordance with, and certificates of compliance with covenants shall be based
upon, GAAP.
1.4 COMPUTATION OF TIME PERIODS. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the words
"from" or "commencing on" means "from and including" and the words "to",
"through", "ending on" and "until" each mean "to but excluding."
1.5 HEADINGS AND REFERENCES. Section and other headings are for
reference only, and do not affect the interpretation or meaning of any provision
of this Agreement. Any Section or clause references are to this Agreement,
unless otherwise specified. References to an annex, schedule or exhibit are,
unless otherwise specified, to an Annex, Schedule or Exhibit attached to this
Agreement. References in this Agreement to this Agreement and the other Loan
Documents or any other agreement include this Agreement and the other Loan
Documents and other agreements as the same may be amended, restated,
supplemented or otherwise modified from time to time under their respective
terms. A reference to any law, statute or regulation means that law, statute or
regulation as it may be amended, supplemented or otherwise modified from time to
time, and any successor law, statute or regulation. A reference to a Person
includes the successors and assigns of such Person, but such reference shall not
increase, decrease or otherwise modify in any way the provisions in this
Agreement or any other Loan Document governing the assignment of rights and
obligations under or the binding effect of any provision of this Agreement or
any other Loan Document. The provisions of this Agreement relating to
Subsidiaries apply only during such times as a Pledgor has one or more
Subsidiaries.
1.6 CONSTRUCTION. Each covenant contained in this Agreement shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision in this Agreement or any
other Loan Document refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person. The term "including"
is not limiting and means "including without limitation."
SECTION 2. SECURITY INTEREST.
2.1 PLEDGE AND GRANT OF SECURITY INTEREST. As security for the prompt
and complete payment and performance when due of the Obligations, each Pledgor
hereby pledges and grants to the Administrative Agent a continuing security
interest in, and as part of such grant and pledge, hereby transfers and assigns
to the Administrative Agent as collateral security all of the following whether
now existing or hereafter acquired (collectively, the "COLLATERAL"):
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(a) the Stock and the certificates representing the Stock, if any,
indicated in EXHIBIT A hereto as being presently owned by such Pledgor, and
all additional Stock hereafter acquired by such Pledgor in any manner from
time to time, together with all dividends, cash, instruments and other
property hereafter from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the foregoing
(all of the Stock referred to in this CLAUSE (a) subject to the limitations
of the last sentence of this SECTION 2.1, collectively, the "PLEDGED
STOCK");
(b) the Intercompany and Third Party Notes, and the instruments
evidencing the Intercompany and Third Party Notes, if any, indicated in
EXHIBIT B hereto as being presently owned by such Pledgor, and all
additional Intercompany and Third Party Notes hereafter from time to time
owed to such Pledgor, and all interest, cash, instruments and other
property hereafter from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the foregoing
(all of the Intercompany and Third Party Notes referred to in this CLAUSE
(b), collectively, the "PLEDGED NOTES");
(c) the Equity Interests, if any, indicated in EXHIBIT C hereto as
being presently owned by such Pledgor, and all additional Equity Interests
hereafter from time to time acquired by such Pledgor in any manner (all of
the Equity Interests referred to in this CLAUSE (c) subject to the
limitations of the last sentence of this SECTION 2.1, collectively, the
"PLEDGED EQUITY INTERESTS"), and all of such Pledgor's other rights, title
and interests in, or in any way related to, each Pledged Entity to which
any of such Equity Interests relate, including, without limitation:
(i) all interests in the capital of any Pledged Entity and in all
profits, losses and other distributions to which such Pledgor shall at
any time be entitled in respect of any such Equity Interest;
(ii) all other payments due or to become due to such Pledgor in
respect of any such Equity Interest, whether under any partnership
agreement, limited liability company agreement, other agreement or
otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority,
puts, calls, options, security interests, liens and remedies, if any,
under any partnership agreement, limited liability company agreement,
other agreement or at law or otherwise in respect of any such Equity
Interest;
(iv) all present and future claims, if any, of the Pledgor
against any such Pledged Entity for moneys loaned or advanced, for
services rendered or otherwise;
(v) all of such Pledgor's rights under any partnership agreement,
limited liability company agreement, other agreement or at law to
exercise and enforce any and every right, power, remedy, authority,
option and privilege of such Pledgor relating to any such Equity
Interest including any power to (a) terminate, cancel or modify any
partnership agreement, limited liability company agreement or other
agreement, (b) execute any instruments and to take any and all other
action on behalf
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of and in the name of such Pledgor in respect of any such Equity
Interest and any such Pledged Entity, (c) exercise voting rights or
make determinations, (d) exercise any election (including, but not
limited to, election of remedies), (e) exercise any "put", right of
first offer or first refusal, or other option, (f) exercise any right
of redemption or repurchase, (g) give or receive any notice, consent,
amendment, waiver or approval, (h) demand, receive, enforce, collect
or receipt for any of the foregoing, (i) enforce or execute any
checks, or other instruments or orders, (j) file any claims and to
take any action in connection with any of the foregoing or (k)
otherwise act as if the Administrative Agent were the absolute owner
of such Equity Interests and all rights associated therewith;
(vi) all other property hereafter delivered in substitution for
or in addition to any of the foregoing;
(vii) all certificates and instruments representing or evidencing
any of the foregoing; and
(viii) all cash, securities, interest, distributions, dividends,
rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all thereof; and
(d) all proceeds of any and all of the foregoing (regardless whether
such proceeds constitute property of the types described above).
Notwithstanding anything herein to the contrary, (i) in no event shall more than
65% of the total outstanding Foreign Subsidiary Voting Stock of any Foreign
Subsidiary be required to be pledged hereunder and (ii) Foreign Subsidiary
Voting Stock and Equity Interests not required to be pledged hereunder shall not
be included in the definitions of "Pledged Stock" or "Pledged Equity Interests."
2.2 DELIVERY OF CERTIFICATES AND INSTRUMENTS FOR PLEDGED STOCK, PLEDGED
NOTES AND PLEDGED EQUITY INTERESTS. (A) On or prior to the Initial Closing Date,
each Pledgor will pledge and deposit with the Administrative Agent all
certificates or instruments, if any, representing any Pledged Stock, Pledged
Notes or Pledged Equity Interests at the time owned by such Pledgor and subject
to the Security Interest hereof, duly endorsed in blank in the case of Pledged
Notes, and accompanied by undated stock powers duly executed in blank by such
Pledgor or such other instruments of transfer as are acceptable to the
Administrative Agent, in the case of Pledged Stock or Pledged Equity Interests.
(B) If a Pledgor shall acquire (by purchase, conversion, exchange,
stock dividend or otherwise) any additional Stock, Intercompany and Third Party
Notes or Equity Interests, at any time or from time to time after the date
hereof that is or are intended to be subjected to the Security Interest hereof
and that is or are represented by certificates or instruments, such Pledgor will
(i) forthwith pledge and deposit with the Administrative Agent all such
certificates or instruments, duly endorsed in blank in the case of Intercompany
and Third Party Notes, and accompanied by undated stock powers duly executed in
blank by such Pledgor or such other instruments of transfer as are acceptable to
the Administrative Agent, in the case of Stock or Equity Interests, and (ii)
promptly thereafter deliver to the Administrative Agent a certificate executed
by a Responsible Officer of such
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Pledgor with a supplement to the applicable schedule to this Agreement (which
schedule shall be deemed updated by such supplement) describing such Stock,
Intercompany and Third Party Notes or Equity Interests and certifying that the
same have been duly pledged with the Administrative Agent hereunder.
2.3 PERFECTION UNDER THE UNIFORM COMMERCIAL CODE OF SECURITY INTEREST
IN UNCERTIFICATED SECURITIES AND SECURITIES HELD IN A SECURITIES ACCOUNT.
Without limitation of any other provision of this Agreement, if any of the
Stock, Intercompany and Third Party Notes or Equity Interests of a Pledgor
(whether or not now owned or hereafter acquired) that are intended to be
subjected to the Security Interest hereof is an "uncertificated security", as
such term is defined in Section 8-102 of the Uniform Commercial Code, or is held
in a "securities account", as such term is defined in Section 8-501 of the
Uniform Commercial Code, such Pledgor shall promptly notify the Administrative
Agent thereof, and shall promptly take all actions as directed by the
Administrative Agent that are required to be taken in order to perfect the
Security Interest of the Administrative Agent therein under the Uniform
Commercial Code of any applicable jurisdiction. Each Pledgor further agrees to
take such actions as the Administrative Agent deems reasonably necessary or
desirable to effect the foregoing and to permit the Administrative Agent to
exercise any of its rights and remedies hereunder in respect thereof, and agrees
to provide an opinion of counsel reasonably satisfactory to the Administrative
Agent with respect to any such pledge of uncertificated securities, or any
securities held in a securities account, promptly upon the request of the
Administrative Agent.
2.4 NO ASSUMPTION OF LIABILITY. (A) The Security Interest of any
Pledgor is granted as security only and shall not subject the Administrative
Agent to, or in any way alter or modify, any obligation or liability of such
Pledgor with respect to or arising out of any of the Collateral.
(B) Nothing herein shall be construed to make the Administrative Agent
liable as a general partner or limited partner of any Pledged Entity or a
shareholder of any corporation, and the Administrative Agent by virtue of this
Agreement or any actions taken as contemplated hereby (except as referred to in
the following sentence) shall not have any of the duties, obligations or
liabilities of a general partner or limited partner of any Pledged Entity or a
stockholder of any corporation. The parties hereto expressly agree that, unless
the Administrative Agent shall become the absolute owner of an Equity Interest
pursuant hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Administrative Agent and/or a Pledgor or any other
Person.
(C) Except as provided in the last sentence of SECTION 2.4(b), the
Administrative Agent, by accepting this Agreement, does not intend to become a
general partner, limited partner or member of any Pledged Entity or a
shareholder of any corporation or otherwise be deemed to be a co-venturer with
respect to any Pledgor or any Pledged Entity or a shareholder of any corporation
either before or after an Event of Default shall have occurred. The
Administrative Agent shall have only those powers set forth herein and shall
assume none of the duties, obligations or liabilities of a general partner or
limited partner of any Pledged Entity or of a Pledgor.
2.5 REVISIONS OF UNIFORM COMMERCIAL CODE. For avoidance of doubt it is
expressly understood and agreed that, to the extent the Uniform Commercial Code
is revised subsequent to the date hereof such that the definition of any of the
foregoing terms included in the description of Collateral is changed, the
parties hereto desire that any property that is included in such changed
definitions that would not otherwise be included in the foregoing grant on the
date hereof be included
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in such grant immediately upon the effective date of such revision, it being the
intention of the Grantors that the description of Collateral set forth above be
construed to include the broadest possible range of assets. Notwithstanding the
immediately preceding sentence, the foregoing grant is intended to apply
immediately on the date hereof to all Collateral to the fullest extent permitted
by applicable law regardless whether any particular item of Collateral is
currently subject to the Uniform Commercial Code.
2.6 REGISTRATION OF COLLATERAL IN THE NAME OF THE ADMINISTRATIVE AGENT.
The Administrative Agent shall have the right, at any time during the existence
of an Event of Default, in its discretion and without notice to any Pledgor, to
transfer to or to register in the name of the Administrative Agent or any of its
nominees any or all of the Collateral, subject only to the revocable voting and
similar rights specified in SECTION 5. In addition, the Administrative Agent
shall have the right at any time during the existence of an Event of Default to
exchange certificates or instruments representing or evidencing Collateral for
certificates or instruments of smaller or larger denominations.
2.7 APPOINTMENT OF SUBAGENTS; RELEASE OF CERTAIN PLEDGED NOTES. The
Administrative Agent shall have the right to appoint one or more subagents for
the purpose of retaining physical possession of the instruments and certificates
evidencing any of the Collateral. The Administrative Agent and any subagent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if such Collateral is accorded
treatment substantially equivalent to that which the Administrative Agent or
such subagent, in its individual capacity, accords its own property consisting
of similar instruments or interests. The Administrative Agent shall not be
derivatively responsible for the acts or omissions of any subagent chosen by the
Administrative Agent with reasonable care. So long as no Event of Default has
occurred and is continuing, the Administrative Agent or such subagent shall,
promptly upon request of any Pledgor, make appropriate arrangements for making
any Intercompany and Third Party Note issued by any Person other than a Credit
Party or a Subsidiary pledged by such Pledgor available to such Pledgor for
purposes of presentation, collection or renewal (any such arrangement to be
effected, to the extent reasonably deemed appropriate by the Administrative
Agent, against trust receipt or like document).
SECTION 3. REPRESENTATIONS AND WARRANTIES.
Each Pledgor represents and warrants to the Administrative Agent, which
representations and warranties shall survive execution and delivery of this
Agreement, as follows:
3.1 INITIAL COLLATERAL COMPREHENSIVE. At and as of the date hereof, the
only Stock, Intercompany and Third Party Notes and Equity Interests owned by
such Pledgor, other than Foreign Subsidiary Voting Stock that is not required to
be pledged under SECTION 2.1, are the Pledged Stock, Pledged Notes and Pledged
Equity Interests, if any, which are correctly described on EXHIBIT A, B or C
hereto, as applicable, as being owned by such Pledgor.
3.2 AUTHORITY TO PLEDGE. Such Pledgor has full power, authority and
legal right to pledge all of its Pledged Stock, Pledged Notes and Pledged Equity
Interests. Such Pledgor has delivered to the Administrative Agent true, correct
and complete copies of all agreements evidencing or relating to its investment
in, or ownership, voting or disposition of, such Pledged Stock, Pledged
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Notes and Pledged Equity Interests or any future investment or other obligations
with respect thereto (collectively, the "GOVERNING DOCUMENTS").
3.3 TITLE TO COLLATERAL. Such Pledgor is the legal, beneficial and
record owner of, and has good and marketable title to, all of its Collateral,
subject to no pledge, lien, mortgage, hypothecation, security interest, charge,
option, voting agreement or limitation, pledge or transfer limitation or other
encumbrance of any kind or nature whatsoever, except for the Security Interest
created by this Agreement. There is no effective financing statement (or similar
statement or instrument of registration in effect under the law of any
jurisdiction) covering or purporting to cover any interest of any kind of such
Pledgor in the Collateral, except for financing statements, continuation
statements and other documents and registrations filed to perfect or continue
the perfection of the Security Interest.
3.4 STATUS OF COLLATERAL. (A) All of the shares of the Pledged Stock of
such Pledgor hereunder have been duly and validly issued and are fully paid and
nonassessable.
(B) Each of the Pledged Notes of such Pledgor issued by any Credit
Party or a Subsidiary of a Credit Party, when executed by the Issuer thereof,
will be the legal, valid and binding obligation of the Issuer thereof,
enforceable in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforceability of creditors' rights generally and to
general principles of equity. Such Pledgor has no obligation to make any further
or additional loans or advances to, or purchases of securities from, any Issuer
that are to be evidenced by any Pledged Note that is subject to the Security
Interest of such Pledgor hereunder.
(C) All of the Pledged Equity Interests of such Pledgor issued by any
Credit Party or a Subsidiary of a Credit Party have been duly and validly issued
and are fully paid and nonassessable. Such Pledgor is not in default in the
payment of any portion of any mandatory capital contribution, cash call, or
other funding, if any, required to be made under any Governing Document relating
to any of the Pledged Equity Interests of such Pledgor, and such Pledgor is not
in violation of any other material provisions of any such Governing Document, or
otherwise in default or violation thereunder.
3.5 VALIDITY OF SECURITY INTEREST. The Security Interest granted by
such Pledgor constitutes a legal and valid security interest in all of the
Collateral of such Pledgor, securing the payment and performance of the
Obligations.
3.6 PERFECTION OF SECURITY INTEREST UNDER UNIFORM COMMERCIAL CODE.
Prior to the perfection of the Security Interest granted by this Agreement, the
Pledgors will ensure that all notifications and other actions, including,
without limitation, (a) all deposits of certificates and instruments evidencing
any Collateral (duly endorsed or accompanied by appropriate instruments of
transfer), (b) all notices to and acknowledgments of any bailee or other person,
(c) all acknowledgments and agreements respecting the right of the
Administrative Agent to "control" any Collateral, as such term is now or
hereafter defined in the Uniform Commercial Code, and (d) all filings,
registrations and recordings, which are necessary or appropriate to create,
preserve, protect and perfect the Security Interest granted by such Pledgor to
the Administrative Agent hereby in respect of its portion of the Collateral,
have been given, made, obtained, done and accomplished, and at such time the
Security Interest granted by such Pledgor to the Administrative Agent pursuant
to
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this Agreement in and to its portion of the Collateral will be perfected, to the
extent a security interest in such Pledgor's portion of the Collateral can be
perfected under the Uniform Commercial Code of any applicable jurisdiction.
SECTION 4. GENERAL COVENANTS.
4.1 NO OTHER LIENS; DEFENSE OF TITLE. (A) No Pledgor will make or
grant, or suffer or permit to exist, any Lien on any of its Collateral, except
for the Security Interest created by this Agreement.
(B) Each Pledgor, at its sole cost and expense, will take any and all
actions reasonably necessary to defend title to its Collateral against any and
all persons and to defend the validity, perfection, effectiveness and priority
of the Security Interest of the Administrative Agent therein against any Lien
not permitted under SECTION 4.1(A) above.
4.2 FURTHER ASSURANCES; FILINGS AND RECORDINGS. (A) Each Pledgor, at
its sole cost and expense, will duly execute, acknowledge and deliver all such
agreements, instruments and other documents and take all such actions
(including, without limitation, obtaining from other persons lien waivers,
agreements evidencing the exclusive control and dominion of the Administrative
Agent over any Collateral, and other agreements, instruments and documents) as
the Administrative Agent may from time to time reasonably request better to
assure, preserve, protect and perfect the Security Interest of the
Administrative Agent in the Collateral of such Pledgor, and the rights and
remedies of the Administrative Agent hereunder, or otherwise to further
effectuate the intent and purposes of this Agreement and to carry out the terms
hereof.
(B) Each Pledgor, at its sole cost and expense, will (i) at all times
cause this Agreement (including proper notices, financing or other statements in
respect hereof, and supplemental collateral assignments or collateral security
agreements in respect of any portion of the Collateral) to be duly filed,
recorded, registered and published, and refiled, rerecorded, reregistered and
republished in such manner and in such places as may be required under the
Uniform Commercial Code or other applicable law in order to establish, perfect,
preserve and protect the rights, remedies and Security Interest of the
Administrative Agent in or with respect to the Collateral of such Pledgor and
(ii) pay all taxes, fees and charges and comply with all statutes and
regulations, applicable to such filing, recording, registration and publishing
and such refiling, rerecording, reregistration and republishing. Each Pledgor
irrevocably authorizes the Administrative Agent to file any financing statements
with respect to the Collateral of such Pledgor without the signature of such
Pledgor where the Administrative Agent is permitted by applicable law to do so.
4.3 CONTINUING OBLIGATIONS OF THE PLEDGORS IN RESPECT OF THE
COLLATERAL. Each Pledgor shall remain liable to, and shall duly pay, observe,
perform and satisfy all of the obligations, terms, covenants, provisions and
conditions to be paid, observed, performed and satisfied by it under each
contract, agreement and instrument relating to its Collateral, all in accordance
with the terms, covenants, provisions and conditions thereof.
4.4 NO DISPOSITION OF THE COLLATERAL. No Pledgor may sell, assign or
otherwise dispose of any of its Collateral, except in compliance with the
applicable requirements of the Credit Agreement and this Agreement.
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4.5 MODIFICATION OF, AND NOTICES UNDER, GOVERNING DOCUMENTS. (A) No
Pledgor will enter into any modification of the terms or provisions of any of
the Governing Documents relating to any of its Collateral, other than
modifications made when no Event of Default is in existence that (i) does not
increase the monetary obligations of such Pledgor under such Governing Documents
and (ii) otherwise is not materially adverse to the interests of the
Administrative Agent and the Lenders as creditors of such Pledgor.
(B) Each Pledgor shall promptly furnish the Administrative Agent with
copies of (i) all modifications to any of the Governing Documents relating to
any of its Collateral and (ii) any written claim or other demand, notice or
document received by it in connection with any such Governing Document that
could reasonably be expected to have a Material Adverse Effect on the value of
such Collateral.
(C) No Pledgor shall withdraw as a partner or member of any Pledged
Entity, or file or pursue or take any action that may, directly or indirectly,
cause a dissolution or liquidation of or with respect to any Pledged Entity or
seek a partition of any property of any Pledged Entity, except as permitted by
the Credit Agreement.
4.6 PROTECTIVE ADVANCES BY THE ADMINISTRATIVE AGENT. At its option, but
without being obligated to do so, the Administrative Agent may, upon prior
notice to any applicable Pledgor, (a) pay and discharge past due taxes,
assessments and governmental charges, at any time levied on or with respect to
any of the Collateral of such Pledgor that such Pledgor has failed to pay and
discharge in accordance with the requirements of this Agreement or any of the
other Loan Documents and (b) pay and discharge any claims of other creditors of
such Pledgor that are secured by any Lien on any Collateral that is not
permitted under SECTION 4.1(A) hereof, and each Pledgor agrees to reimburse the
Administrative Agent, on demand, for all reasonable payments and expenses
incurred by the Administrative Agent with respect to such Pledgor or any of its
Collateral pursuant to the foregoing authorization; PROVIDED, HOWEVER, that
nothing in this section shall be construed as excusing any Pledgor from the
performance of, or imposing any obligation on the Administrative Agent to cure
or perform, any covenants or other agreements of any Pledgor with respect to any
of the foregoing matters as set forth herein or in any of the other Loan
Documents.
SECTION 5. VOTING WHILE NO EVENT OF DEFAULT.
So long as no Event of Default shall have occurred and be continuing,
each Pledgor shall be entitled to exercise all voting and incidental rights
attaching to any and all Collateral owned by it, and to give consents, waivers
or ratifications in respect thereof; PROVIDED that, no vote shall be cast or any
consent, waiver or ratification given or any action taken that would violate,
result in breach of any covenant contained in or be inconsistent with any of the
terms of this Agreement or any other Loan Document, or that would have the
effect of impairing the interests of the Administrative Agent therein. All such
rights of such Pledgor to vote and to give consents, waivers and ratifications
shall cease so long as an Event of Default shall occur and be continuing.
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SECTION 6. DIVIDENDS AND OTHER DISTRIBUTIONS.
6.1 ENTITLEMENT OF PLEDGORS TO CASH DISTRIBUTIONS. A Pledgor shall be
entitled to receive all dividends, interest, principal or other distributions
that are payable in cash in respect of its Collateral, except as otherwise
provided in SECTION 6.2.
6.2 ENTITLEMENT OF ADMINISTRATIVE AGENT TO DIVIDENDS AND DISTRIBUTIONS.
The Administrative Agent shall be entitled to receive and to retain as part of
the Collateral:
(a) all cash dividends, interest, principal and other
distributions payable in respect of the Collateral at any time when an
Event of Default shall have occurred and be continuing; and
(b) regardless whether or not a Default or an Event of Default
shall have occurred and be continuing at the time of payment or
distribution thereof:
(i) all other or additional stock, other securities,
partnership interests, membership interests or property (other
than cash to which a Pledgor is entitled under SECTION 6.1) paid
or distributed by way of dividend or otherwise in respect of the
Collateral;
(ii) all other or additional stock, other securities,
partnership interests, membership interests or property
(including cash) paid or distributed in respect of the Collateral
by way of stock-split, spin-off, split-up, reclassification,
combination of shares or similar rearrangement; and
(iii) all other or additional stock, other securities,
partnership interests, membership interests or property
(including cash) that may be paid in respect of the Collateral by
reason of any consolidation, merger, exchange of stock,
conveyance of assets, liquidation or similar corporate,
partnership or limited liability company reorganization.
6.3 APPLICATION OF DIVIDENDS AND DISTRIBUTIONS. If an Event of Default
shall have occurred and be continuing all dividends and distributions received
by the Administrative Agent and then held by it pursuant to this SECTION 6 as
part of the Collateral will be applied as provided in SECTION 7 hereof.
6.4 TURNOVER BY PLEDGORS. All dividends, distributions or other
payments that are received by any Pledgor contrary to the provisions of this
SECTION 6 or SECTION 7 shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith paid over to the Administrative Agent as
Collateral in the same form as so received (with any necessary endorsement).
11
SECTION 7. REMEDIES IN CASE OF AN EVENT OF DEFAULT.
7.1 REMEDIES GENERALLY; OBTAINING OF THE COLLATERAL. Each Pledgor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, subject to any mandatory requirements of applicable law
then in effect, the Administrative Agent, in addition to any rights now or
hereafter existing under applicable law, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and may
exercise any or all of the following rights (all of which each Pledgor hereby
agrees is commercially reasonable):
(a) receive all amounts payable in respect of the Collateral
otherwise payable under SECTION 6.1 to a Pledgor;
(b) exercise any rights the Administrative Agent may have as an
"entitlement holder" in respect of any "financial assets" included in
the Collateral, as such terms are defined in the Uniform Commercial
Code of any applicable jurisdiction;
(c) transfer all or any part of the Collateral into the
Administrative Agent's name or the name of its nominee or nominees;
(d) accelerate any Pledged Note that may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note (including, without limitation, to make any
demand for payment thereon);
(e) pay and discharge taxes, Liens or claims on or against any of
the Collateral;
(f) pay, perform or satisfy, or cause to be paid, performed or
satisfied, for the benefit of any Pledgor, any of the obligations,
terms, covenants, provisions or conditions to be paid, observed,
performed or satisfied by such Pledgor under any contract, agreement
or instrument relating to its Collateral, all in accordance with the
terms, covenants, provisions and conditions thereof, as and to the
extent that such Pledgor fails or refuses to perform or satisfy the
same;
(g) enter into any extension, reorganization, deposit, merger or
consolidation agreement, or any other agreement in any way relating to
any of the Collateral;
(h) make any compromise or settlement the Administrative Agent
deems desirable or proper with respect to any of the Collateral; or
(i) vote all or any part of the Collateral (whether or not
transferred into the name of the Administrative Agent) and give all
consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright
owner thereof (each Pledgor hereby irrevocably constituting and
appointing the Administrative Agent the proxy and attorney-in-fact of
such Pledgor, with full power of substitution to do so).
7.2 DISPOSITION OF THE COLLATERAL. Upon the occurrence and continuance
of a Default or an Event of Default and provided such action is consistent with
Section 12 of the Credit Agreement, any Collateral transferred into the
Administrative Agent's name under or pursuant to SECTION 7.1 and
12
any other Collateral whether or not so transferred into the Administrative
Agent's may be sold, assigned, leased or otherwise disposed of under one or more
contracts or as an entirety, and without the necessity of gathering at the place
of sale of the property to be sold, and in general in such manner, at such time
or times, at such place or places and on such terms as the Administrative Agent
may, in compliance with any mandatory requirements of applicable law, determine
to be commercially reasonable. Any of the Collateral may be sold, leased or
otherwise disposed of, in the condition in which the same existed when taken by
the Administrative Agent. Any such disposition that shall be a private sale or
other private proceedings permitted by such requirements shall be made upon not
less than five days' written notice to such Pledgor specifying the time at which
such disposition is to be made and the intended sale price or other
consideration therefor, and shall be subject, for the five days after the giving
of such notice, to the right of the relevant Pledgor or any nominee of the
relevant Pledgor to acquire the Collateral involved at a price or for such other
consideration at least equal to the offered sale price or other consideration so
specified. Any such disposition that shall be a public sale permitted by such
requirements shall be made upon not less than five days' written notice to the
relevant Pledgor specifying the time and place of such sale and, in the absence
of applicable requirements of law, shall be by public auction (that may, at the
Administrative Agent's option, be subject to reserve), after publication of
notice of such auction not less than five days prior thereto in two newspapers
in general circulation in the city where such Collateral is located. To the
extent permitted by any such requirement of law, the Administrative Agent may
bid for and become the purchaser (by bidding in Obligations or otherwise) of the
Collateral or any item thereof, offered for sale in accordance with this SECTION
7.2 without accountability to the relevant Pledgor (except to the extent of
surplus money received as provided in SECTION 7.4). If, under mandatory
requirements of applicable law, the Administrative Agent shall be required to
make disposition of the Collateral within a period of time that does not permit
the giving of notice to the Pledgor as hereinabove specified, the Administrative
Agent need give the relevant Pledgor only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of applicable law.
7.3 WAIVER OF CLAIMS. Except as otherwise provided in this Agreement,
EACH PLEDGOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE ADMINISTRATIVE AGENT'S TAKING
POSSESSION OR THE ADMINISTRATIVE AGENT'S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE PLEDGOR WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF
ANY STATE, and each Pledgor hereby further waives, to the extent permitted by
law:
(a) all damages occasioned by such taking of possession except
any damages that are determined by a final judgment of a court of
competent jurisdiction to be the result of the Administrative Agent's
gross negligence or wilful misconduct;
(b) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Administrative Agent's rights hereunder; and
13
(c) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and each
Pledgor, for itself and all who may claim under it, insofar as it or
they now or hereafter lawfully may, hereby waives the benefit of all
such laws.
Any sale of, or the grant of options to purchase, or any other realization upon
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Pledgor therein and thereto,
and shall be a perpetual bar both at law and in equity against the relevant
Pledgor and against any and all persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under the relevant Pledgor.
7.4 APPLICATION OF PROCEEDS. All Collateral and proceeds of Collateral
obtained and realized by the Administrative Agent in connection with the
enforcement of this Agreement pursuant to this SECTION 7 shall be applied as
follows:
(i) FIRST, to the payment to the Administrative Agent, for
application to the Obligations as provided in Section 12.3 of the
Credit Agreement; and
(ii) SECOND, to the extent remaining after the application
pursuant to the preceding CLAUSE (i) and following the
termination of this Agreement pursuant to SECTION 9.11 hereof, to
the relevant Pledgor or to whomever may be lawfully entitled to
receive such payment.
7.5 REMEDIES CUMULATIVE. Each and every right, power and remedy hereby
specifically given to the Administrative Agent shall be in addition to every
other right, power and remedy specifically given under this Agreement or the
other Loan Documents or now or hereafter existing at law or in equity, or by
statute, and each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time or simultaneously
and as often and in such order as may be deemed expedient by the Administrative
Agent. All such rights, powers and remedies shall be cumulative and the exercise
or the beginning of exercise of one shall not be deemed a waiver of the right to
exercise of any other or others. No delay or omission of the Administrative
Agent in the exercise of any such right, power or remedy, or partial or single
exercise thereof, and no renewal or extension of any of the Obligations, shall
impair or constitute a waiver of any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an acquiescence
therein. No notice to or demand on any Pledgor in any case shall entitle it to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Administrative Agent to any
other or further action in any circumstances without notice or demand. In the
event that the Administrative Agent shall bring any suit to enforce any of its
rights hereunder and shall be entitled to judgment, then in such suit the
Administrative Agent may recover reasonable expenses, including attorneys' fees,
and the amounts thereof shall be included in such judgment.
7.6 DISCONTINUANCE OF PROCEEDINGS. If the Administrative Agent shall
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Administrative Agent, then and in every such case the relevant
Pledgor, the Administrative Agent and each holder of any of the Obligations
shall be restored to their former positions and rights hereunder with respect to
the Collateral subject to the
14
security interest created under this Agreement, and all rights, remedies and
powers of the Administrative Agent shall continue as if no such proceeding had
been instituted.
7.7 PURCHASERS OF COLLATERAL. Upon any sale of any of the Collateral by
the Administrative Agent hereunder (whether by virtue of the power of sale
herein granted, pursuant to judicial process or otherwise), the receipt of the
Administrative Agent or the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Administrative Agent or such officer
or be answerable in any way for the misapplication or nonapplication thereof.
SECTION 8. SALE OF PLEDGED STOCK IN CONNECTION WITH ENFORCEMENT;
REGISTRATION.
8.1 PLEDGOR TO REGISTER PLEDGED STOCK OF SUBSIDIARIES UNDER 1933 ACT.
If an Event of Default shall have occurred and be continuing and the relevant
Pledgor shall have received from the Administrative Agent a written request or
requests that such Pledgor cause any registration, qualification or compliance
under any Federal or state securities law or laws to be effected with respect to
all or any part of the Stock of its Subsidiaries, such Pledgor as soon as
practicable and at its sole cost and expense will use its best efforts to cause
such registration to be effected (and be kept effective) and will use its best
efforts to cause such qualification and compliance to be effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Stock, including, without limitation, registration under
the Securities Act of 1933, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other governmental
requirements; PROVIDED that the Administrative Agent shall furnish to such
Pledgor such information regarding the Administrative Agent as such Pledgor may
request in writing and as shall be required in connection with any such
registration, qualification or compliance. The relevant Pledgor will cause the
Administrative Agent to be kept reasonably advised in writing as to the progress
of each such registration, qualification or compliance, and as to the completion
thereof, will furnish to the Administrative Agent such number of prospectuses,
offering circulars and other documents incident thereto as the Administrative
Agent from time to time may reasonably request, and will indemnify the
Administrative Agent and all others participating in the distribution of such
Stock against all claims, losses, damages or liabilities caused by any untrue
statement (or alleged untrue statement) of a material fact contained therein (or
in any related registration statement, notification or the like) or by any
omission (or alleged omission) to state therein (or in any related registration
statement, notification or the like) a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same may have been caused by an untrue statement or omission
based upon information furnished in writing to such Pledgor by the
Administrative Agent expressly for use therein.
8.2 SALE OF PLEDGED STOCK IN CONNECTION WITH ENFORCEMENT. If at any
time when the Administrative Agent shall determine to exercise its right to sell
all or any part of the Pledged Stock pursuant to SECTION 7, and such Pledged
Stock or the part thereof to be sold shall not, for any reason whatsoever, be
effectively registered under the Securities Act of 1933, as then in effect, then
the Administrative Agent may, in its sole and absolute discretion, sell such
Pledged Stock or part thereof by private sale in such manner and under such
circumstances as the Administrative Agent may deem
15
necessary or advisable in order that such sale may legally be effected without
such registration; PROVIDED that, at least ten days' notice of the time and
place of any such sale shall be given to the relevant Pledgor. Without limiting
the generality of the foregoing, in any such event the Administrative Agent, in
its sole and absolute discretion, (a) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Pledged Stock or part thereof shall have been filed under such Securities
Act, (b) may approach and negotiate with a single possible purchaser to effect
such sale and (c) may restrict such sale to a purchaser who will represent and
agree that such purchaser is purchasing for its own account, for investment, and
not with a view to the distribution or sale of such Pledged Stock or part
thereof. In the event of any such sale, the Administrative Agent shall incur no
responsibility or liability to any Pledgor for selling all or any part of the
Pledged Stock at a price that the Administrative Agent may in good xxxxx xxxx
reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until the
registration as aforesaid.
SECTION 9. MISCELLANEOUS.
9.1 NOTICES. All notices and other communications provided for
hereunder shall be given in accordance with the terms of the Credit Agreement.
9.2 ENTIRE AGREEMENT. This Agreement and the other Loan Documents set
forth the entire agreement of the Borrowers, the Agents and the Lenders with
respect to the matters addressed in this Agreement, the Credit Agreement and the
other Loan Documents. This Agreement and the other Loan Documents supersede all
prior written or oral agreements, instruments or other documents respecting such
matters.
9.3 AMENDMENTS AND WAIVERS. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by (a) each Pledgor affected thereby (it being
understood that the addition or release of any Pledgor hereunder shall not
constitute a change, waiver, modification or variance affecting any Pledgor
other than the Pledgor so added or released) and (b) the Administrative Agent .
9.4 OBLIGATIONS ABSOLUTE. The obligations of each Pledgor under this
Agreement shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
other than indefeasible payment in full of, and complete performance of, all of
the Obligations, including, without limitation:
(a) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from other Loan Documents or any
other instrument or agreement referred to therein, or any assignment
or transfer of any thereof;
(b) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument or
this Agreement except as expressly provided in such renewal,
extension, amendment, modification, addition, supplement, assignment
or transfer;
16
(c) any furnishing of any additional security to the
Administrative Agent or its assignee or any acceptance thereof or any
release of any security by the Administrative Agent or its assignee;
(d) any limitation on any person's liability or obligations under
any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating
to a Pledgor or any Subsidiary of a Pledgor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court,
in any such proceeding, whether or not a Pledgor shall have notice or
knowledge of any of the foregoing; or
(f) any other event or circumstance that, but for this provision,
might release or discharge a guarantor or other surety from its
obligations as such.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each
Pledgor and its successors and assigns and shall inure to the benefit of the
Administrative Agent and its successors and assigns; PROVIDED that, no Pledgor
may transfer or assign any or all of its rights or obligations hereunder without
the written consent of the Administrative Agent. All agreements, statements,
representations and warranties made by each Pledgor herein or in any certificate
or other instrument delivered by such Pledgor or on its behalf under this
Agreement shall be considered to have been relied upon by the Administrative
Agent and shall survive the execution and delivery of this Agreement and the
other Loan Documents.
9.6 HEADINGS DESCRIPTIVE. The headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
9.7 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.8 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF ILLINOIS.
9.9 ENFORCEMENT EXPENSES. The Pledgors jointly and severally agree to
pay, or reimburse the Administrative Agent, to the extent not paid pursuant to
Section 15.5 of the Credit Agreement, for any and all out-of-pocket fees, costs,
and expenses of whatever kind or nature incurred in connection with the
creation, preservation or protection of the Security Interest of the
Administrative Agent in the Collateral, including, without limitation, all fees
and taxes in connection with the recording or filing of instruments and
documents in public offices, payment or discharge of any taxes or Liens upon or
in respect of the Collateral, premiums for insurance with respect to the
Collateral and all other fees, costs, and expenses in connection with the
enforcement of this Agreement, the
17
protection, preservation and maintenance of the Collateral and the
Administrative Agent's interest therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions, suits or proceedings
arising out of or relating to the Collateral, the perfection of the Security
Interest, and any amendment, waiver or consent relating hereto (including,
without limitation, the reasonable fees and disbursements of counsel employed by
the Administrative Agent).
9.10 TERMINATION; RELEASE. At such time as the Commitments are
terminated, all Letters of Credit have expired or have been cash collateralized
and the principal and interest on the Notes, all other amounts payable by the
Borrowers under the Credit Agreement, the other Loan Documents and the
Obligations under this Agreement (other than unasserted indemnity obligations)
shall have been paid in full, this Agreement shall terminate (except for
provisions that by their terms survive such termination). Upon such termination,
the Administrative Agent, at the expense of the Pledgors, shall take such
actions as are appropriate and reasonably requested by the Pledgors in
connection therewith to evidence such termination. Upon any disposition of
Collateral by any Pledgor permitted under the Credit Agreement, such Collateral
shall be sold or otherwise disposed of free and clear of the Lien created by the
Collateral Documents and the obligations of this Agreement and the
Administrative Agent, at the expense of the Pledgors, shall take such actions as
are appropriate and reasonably requested by the Pledgors in connection
therewith.
9.11 ADMINISTRATIVE AGENT. The Administrative Agent or its subagent in
accordance with the provisions of SECTION 2.7 will hold in accordance with this
Agreement all items of the Collateral at any time received under this Agreement.
The acceptance by the Administrative Agent of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Administrative Agent to appear in or defend any action or
proceeding relating to the Collateral to which it is not a party, or to take any
action hereunder or thereunder, or to expend any money or incur any expenses or
perform or discharge any obligation, duty or liability under the Collateral.
Notwithstanding anything to the contrary contained in SECTION 9.3 of this
Agreement or Section 15.1 of the Credit Agreement, this SECTION 9.11, and the
duties and obligations of the Administrative Agent set forth in this SECTION
9.11, may not be amended or modified without the consent of the Administrative
Agent.
9.12 OTHER CREDITORS NOT THIRD PARTY BENEFICIARIES. No creditor of any
Pledgor or any of its Affiliates, or other person claiming by, through or under
any Pledgor or any of its Affiliates, other than the Administrative Agent, and
its respective successors and assigns, shall be a beneficiary or third party
beneficiary of this Agreement or otherwise shall derive any right or benefit
herefrom.
9.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Parent and the
Administrative Agent.
9.14 EFFECTIVENESS. This Agreement shall be effective as to any Pledgor
upon its execution and delivery to the Administrative Agent of a counterpart of
this Agreement manually executed on behalf of such Pledgor, regardless of the
date of this Agreement or the date this Agreement is executed and delivered by
any other party hereto.
18
9.15 WAIVER OF JURY TRIAL. EACH PLEDGOR AND THE ADMINISTRATIVE AGENT
EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PLEDGOR HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY SECURED CREDITOR HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH SECURED CREDITOR WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9.16 ADDITIONAL PLEDGORS. Each Subsidiary of the Parent (other than a
Non-United States Subsidiary) that was not in existence or not such a Subsidiary
on the date of the Credit Agreement is required to enter this Agreement as a
Pledgor upon becoming a Subsidiary if such Subsidiary owns or possesses property
of a type that would be considered Collateral hereunder. Upon execution and
delivery by the Administrative Agent and such a Subsidiary of an instrument in
the form of ANNEX I hereto, such Subsidiary shall become a Pledgor hereunder
with the same force and effect as if originally named a Pledgor herein. The
execution and delivery of any such instrument shall not require the consent of
any other Pledgor hereunder. The rights and obligations of each Pledgor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Pledgor as party to this Agreement.
SECTION 10. THE ADMINISTRATIVE AGENT.
LaSalle Bank National Association, a national banking association, has
been appointed Administrative Agent for the Lenders hereunder pursuant to
Section 13 of the Credit Agreement. It is expressly understood and agreed by the
parties to this Agreement that any authority conferred upon the Administrative
Agent hereunder is subject to the terms of the delegation of authority made by
the Lenders to the Administrative Agent pursuant to the Credit Agreement and
that the Administrative Agent has agreed to act (and any successor
administrative agent shall act) as such hereunder only on the express conditions
contained in such Section 13. Any successor administrative agent appointed
pursuant to Section 13 of the Credit Agreement shall be entitled to all the
rights, interests and benefits of the Administrative Agent hereunder.
[Remainder of page intentionally blank.]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
PARENT:
XXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
ADMINISTRATIVE AGENT:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxx
-------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
PLEDGORS:
XXXX INSTALLATION SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
XXXX ENCLOSURES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
XXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
XXXX PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
XXXX CONSTRUCTION, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
FOLDING CARRIER CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
XXXX FOREIGN HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
UNR REALTY, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
EXHIBIT A
LIST OF STOCK
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NAME OF PLEDGOR NAME OF TYPE NUMBER CERTIFICATE PERCENTAGE
ISSUING OF OF NO. OWNED/PLEDGED
CORPORATION SHARES SHARES
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A-1
EXHIBIT B
LIST OF INTERCOMPANY AND THIRD PARTY NOTES
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ISSUER PAYEE PRINCIPAL INTEREST RATE MATURITY DATE
AMOUNT
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B-1
EXHIBIT C
LIST OF PLEDGED ENTITIES
----------------------------------------------------------------------------------------------------------------
NAME OF PLEDGOR NAME OF PLEDGED ENTITY TYPE OF EQUITY INTEREST
ORGANIZATION OWED/PLEDGED
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C-1
ANNEX I
to
Pledge Agreement
[FORM OF NEW PLEDGOR SUPPLEMENT]
SUPPLEMENT NO. dated as of ______________, 20__ (this
"SUPPLEMENT"), to the Pledge Agreement dated as of March 8, 2001 (the "PLEDGE
AGREEMENT"), among XXXX INDUSTRIES, INC., a Delaware corporation (the "PARENT"),
each of the Parent's domestic Subsidiaries (as defined in the Credit Agreement
hereinafter referred to) party hereto, as pledgors (together with the Parent,
the "BORROWERS" or the "PLEDGORS" and each a "BORROWER" or a "PLEDGOR"), and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders (as defined below).
PRELIMINARY STATEMENTS:
1. Reference is made to the Credit Agreement dated as of March 8, 2001
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrowers, the lenders from time to time party thereto
(the "LENDERS"), the Administrative Agent and National City Bank, a national
banking association, as syndication agent for the Lenders (in such capacity, the
"SYNDICATION AGENT").
2. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
3. The Pledgors have entered into the Pledge Agreement to induce the
Lenders to make Term Loans and Revolving Loans (together, the "LOANS") to the
Borrowers and the Issuing Banks have agreed to issue Letters of Credit. Pursuant
to Section 10.11 of the Credit Agreement, each Subsidiary of the Borrower (other
than a Non-United States Subsidiary) that was not in existence or not a
Subsidiary on the date of the Credit Agreement is required to enter into the
Pledge Agreement as a Pledgor upon becoming a Subsidiary if such Subsidiary owns
or possesses property of a type that would be considered Collateral under the
Pledge Agreement. Section 9.16 of the Pledge Agreement provides that such
Subsidiaries may become Pledgors under the Pledge Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "NEW PLEDGOR") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Pledgor under the Pledge
Agreement in order to induce the Lenders to make additional Loans and of the
Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
AGREEMENT:
In consideration of the premises and the mutual agreements contained in
this Agreement, the New Pledgor and the Administrative Agent agree as follows:
1. In accordance with Section 9.16 of the Pledge Agreement, the New
Pledgor by its signature below becomes a Pledgor under the Pledge Agreement with
the same force and effect as if originally named therein as a Pledgor and the
New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge
Agreement applicable to it as a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct on and as of the date hereof. In furtherance of
the foregoing, the New Pledgor, as security for the payment and performance in
full of the Obligations (as defined in the Credit Agreement), does hereby create
and grant to the Administrative Agent, its successors and assigns, for the
benefit of the Lenders, their successors and assigns, a security interest in and
lien on all the New Pledgor's right, title and interest in and to the Collateral
(as defined in the Pledge Agreement) of the New Pledgor. Each reference to a
"Pledgor" in the Pledge Agreement shall be deemed to include the New Pledgor.
The Pledge Agreement is hereby incorporated herein by reference.
2. The New Pledgor represents and warrants to the Administrative Agent
and the Lenders that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency and similar laws affecting the enforceability of creditors' rights
generally and to general principles of equity.
3. This Supplement may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Pledgor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
4. The New Pledgor hereby represents and warrants that set forth on
EXHIBITS A through C attached hereto are true and correct schedules of all its
Collateral.
5. Except as expressly supplemented hereby, the Pledge Agreement shall
remain in full force and effect.
6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS.
7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired.
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
8. All communications and notices hereunder shall be given in
accordance with the terms of the Credit Agreement.
9. The New Pledgor agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including
the reasonable fees, other charges and disbursements of counsel for the
Administrative Agent (including, without limitation, the reasonable fees and
disbursements of counsel employed by the Administrative Agent).
IN WITNESS WHEREOF, the New Pledgor and the Administrative Agent have
duly executed this Supplement to the Pledge Agreement as of the day and year
first above written.
[Name of New Pledgor], as New Pledgor
By:
-----------------------------------
Name:
Title:
Address:
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent,
By:
-----------------------------------
Name:
Title:
EXHIBIT A
LIST OF STOCK
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NAME OF PLEDGOR NAME OF TYPE NUMBER CERTIFICATE PERCENTAGE
ISSUING OF OF NO. OWNED/PLEDGED
CORPORATION SHARES SHARES
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EXHIBIT B
LIST OF INTERCOMPANY AND THIRD PARTY NOTES
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ISSUER PAYEE PRINCIPAL INTEREST RATE MATURITY DATE
AMOUNT
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B-1
EXHIBIT C
LIST OF PLEDGED ENTITIES
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NAME OF PLEDGOR NAME OF PLEDGED ENTITY TYPE OF EQUITY INTEREST
ORGANIZATION OWED/PLEDGED
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C-1
