FOURTH AMENDMENT AND CONSENT, dated as of June 25, 1997 (this
"Amendment and Consent"), to the Credit Agreement, dated as of August 13,
---------------------
1996 (as the same may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇ CORP., a New York
----------------
corporation (the "Company"), ▇▇▇▇▇▇ ▇▇▇▇▇ COMMAND COMPANY, a company
-------
organized and existing under the laws of the Province of Nova Scotia (the
"Canadian Borrower" and, together with the Company and its successors, the
------------------
"Borrowers"), the several banks and other financial institutions from time
---------
to time parties thereto (the "Lenders"), Canadian Imperial Bank of
-------
Commerce, New York Agency, as US Administrative Agent for the US$ Lenders
thereunder, and Canadian Imperial Bank of Commerce, as Canadian
Administrative Agent for the C$ Lenders thereunder.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain loans and other extensions of credit to the Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Amendment and
Consent becoming effective, the Lenders have agreed, that certain
provisions of the Credit Agreement be amended and certain transactions be
consented to, all in the manner provided for in this Amendment and Consent;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used herein
-------------
shall have the meanings given to them in the Credit Agreement.
II. Amendment to Section 11 of the Credit Agreement. Section 11 of the
-----------------------------------------------
Credit Agreement is hereby amended by adding thereto the following
subsection:
"11.18 Release of Certain Liens. The Lenders hereby agree to, and
------------------------
authorize and direct the Administrative Agents to execute and deliver
on their behalf all documents necessary or advisable in connection
with, the release of any and all Liens on the Capital Stock of the
Company arising pursuant to the Credit Agreement or any Loan Document
and the release of each of the Shareholders (as defined in the US
Global Guarantee and Security Agreement) from their covenants,
agreements, representations and warranties contained in the US Global
Guarantee and Security Agreement and any other Loan Document."
2
III. Consent. The Lenders hereby consent to: (a) the Company's
-------
redomestication into Pennsylvania pursuant to its merger (the "Merger")
------
with and into ▇▇▇▇▇▇ ▇▇▇▇▇ Inc., a Pennsylvania corporation which will
change its name to "▇▇▇▇▇▇ ▇▇▇▇▇ Corp." in the Merger; (b) the stock split
and recapitalization (the "Stock Recapitalization") to be effected by the
----------------------
Company immediately prior to the Merger, in which each outstanding share of
Class A and Class B Common Stock of the Company will be converted into
shares of one class of voting Common Stock of the Company; (c) the offering
by the Company of its Senior Subordinated Notes due 2007 (the "1997 Notes")
in an aggregate principal amount up to US$150,000,000 (the "Notes
-----
Offering"), to be issued pursuant to an Indenture between the Company and
--------
The Bank of New York, as trustee, provided that the terms and conditions
--------
thereof are in substantially the form of the draft of June 23, 1997 of such
Indenture; (d) the non-compliance by the Company with the requirements of
subsection 4.4(c) of the Credit Agreement in connection with the Notes
Offering and the concurrent public offerings by the Company and certain
shareholders of the Company of shares of the Company's Common Stock (i) in
the United States of America and Canada and (ii) internationally
(collectively, the "Equity Offerings"); (e) the termination by the Company
----------------
in contemplation of the Equity Offerings of its status as an S corporation
as defined in Section 1361 of the Code; (f) the use of substantially all of
the proceeds of the Equity Offerings to redeem up to $70 million principal
amount of the Company's 11-1/8% Senior Subordinated Notes due 2006 at a
price equal to 110% of their principal amount thereof plus accrued interest
through the date of redemption; (g) the granting of a third priority lien
on the stock of the Canadian Borrower to the holders of the 1997 Notes and
the amendment and restatement of the Pledge and Intercreditor Agreement to
reflect such lien; (h) the termination of the Shareholders' Agreement; and
(i) the execution of the Voting Trust Agreement and the tax indemnity
agreement described in the prospectus relating to the Equity Offering.
IV. Conditions to Effectiveness. This Amendment and Consent shall become
---------------------------
effective as of the date first above written (the "Amendment and Consent
---------------------
Effective Date") upon the Borrowers, each of the Guarantors, the US
--------------
Administrative Agent and the Required Lenders having executed and delivered
to the US Administrative Agent this Amendment and Consent.
V. General.
-------
1. Representations and Warranties. To induce the US Administrative Agent
------------------------------
and the Lenders parties hereto to enter into this Amendment and Consent,
the Company hereby represents and warrants to the US Administrative Agent
and each of the Lenders as of the Amendment and Consent Effective Date that
the representations and warranties made by the Company in the Loan
Documents are true and correct in all material respects on and as of the
Amendment and Consent Effective Date, after giving effect to the
effectiveness of this Amendment and Consent, as if made on and as of the
Amendment and Consent Effective Date (other than any representations and
warranties made as of a specific date, which continue to be true and
correct in all material respects as of such date).
3
2. Payment of Expenses. The Company agrees to pay or reimburse the US
-------------------
Administrative Agent for all of its reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment and Consent, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and
disbursements of counsel to the US Administrative Agent.
3. No Other Amendments and Consents; Confirmation. Except as expressly
----------------------------------------------
amended, modified and supplemented hereby, the provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force
and effect.
4. Governing Law; Counterparts.
---------------------------
(a) This Amendment and Consent and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
(b) This Amendment and Consent may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Amendment and Consent
signed by all the parties shall be lodged with each of the Company and the
US Administrative Agent. This Amendment and Consent may be delivered by
facsimile transmission of the relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Consent to be duly executed and delivered by their respective proper and
duly authorized officers as of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
By:
----------------------------------
Title:
▇▇▇▇▇▇ ▇▇▇▇▇ COMMAND COMPANY
By:
----------------------------------
Title:
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ AGENCY
as US Administrative Agent and as a Lender
By:
----------------------------------------
Title: Director, CIBC Wood Gundy Securities
Corp., AS AGENT
BANK OF IRELAND GRAND CAYMAN
as a Lender
By:
----------------------------------------
Title:
CREDIT LYONNAIS NEW YORK BRANCH
as a Lender
By:
----------------------------------------
Title:
FLEET NATIONAL BANK
as a Lender
By:
----------------------------------------
Title:
THE FIRST NATIONAL BANK OF MARYLAND
as a Lender
By:
----------------------------------------
Title:
▇▇▇▇▇▇ FINANCIAL
as a Lender
By:
----------------------------------------
Title:
▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST COMPANY
as a Lender
By:
----------------------------------------
Title:
THE BANK OF NEW YORK
as a Lender
By:
----------------------------------------
Title:
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned, as a Guarantor under that certain US Global
Guarantee and Security Agreement, dated as of August 13, 1996 (as amended,
supplemented or otherwise modified from time to time), made by each of such
Guarantors in favor of the US Administrative Agent, hereby acknowledges and
consents to the execution and delivery of this Fourth Amendment and Consent to
which this Acknowledgment and Consent is attached and hereby reaffirms its
obligations as a Guarantor under said US Global Guarantee and Security
Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
By:_____________________________________
Title:
PLC COMMAND I, INC.
By:_____________________________________
Title:
PLC COMMAND II, INC.
By:_____________________________________
Title:
PLC COMMAND I, L.P.
By PLC Command I, Inc., as its general partner
By:_____________________________________
Title:
PLC COMMAND II, L.P.
By PLC Command II, Inc., as its general partner
By:_____________________________________
Title:
FORM OF
AMENDED AND RESTATED PLEDGE AND INTERCREDITOR AGREEMENT
AMENDED AND RESTATED PLEDGE AND INTERCREDITOR AGREEMENT, dated as of July
__, 1997, by and among (a) PLC COMMAND I, L.P., a Pennsylvania limited
partnership ("PLC I"), PLC COMMAND II, L.P., a Pennsylvania limited partnership
-----
("PLC II" and, together with PLC I, the "Pledgors"), (b) CANADIAN IMPERIAL BANK
------ --------
OF COMMERCE, NEW YORK AGENCY, as collateral agent (together with its successors
in such capacity, the "Collateral Agent") for (i) the lenders (the "Lenders")
---------------- -------
from time to time parties to the Credit Agreement (as hereinafter defined) and
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders, (ii) the holders
--------------------
from time to time (the "1996 Holders") of the 11 1/8% Senior Subordinated Notes
------------
due 2006 (collectively, the "1996 Notes") issued pursuant to the 1996 Indenture
----------
(as defined below) of ▇▇▇▇▇▇ ▇▇▇▇▇ CORP., a Pennsylvania corporation as
successor by merger with a New York corporation having the same name (the
"Company"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation,
--------
as trustee (together with its successors in such capacity, the "1996 Trustee")
------------
for the 1996 Holders in accordance with the 1996 Indenture, and (iii) the
holders from time to time (the "1997 Holders") of the Company's __% Senior
------------
Subordinated Notes due 2007 (collectively, the "1997 Notes") issued from time to
----------
time pursuant to the 1997 Indenture (as defined below) of the Company and THE
BANK OF NEW YORK, a New York banking corporation, as trustee (together with its
successors in such capacity, the "1997 Trustee") for the 1997 Holders in
------------
accordance with the 1997 Indenture, (c) the Administrative Agent, (d) the 1996
Trustee and (e) the 1997 Trustee. The 1996 Holders and the 1997 Holders are
collectively referred to herein as the "Holders," the 1996 Notes and the 1997
-------
Notes are collectively referred to herein as the "Notes," the 1996 Indenture and
-----
the 1997 Indenture are collectively referred to herein as the "Indentures," and
----------
the 1996 Trustee and the 1997 Trustee are collectively referred to herein as the
"Trustees."
--------
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, dated as of August 13, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
------
Agreement"), among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇ Command Company, a Nova Scotia
---------
unlimited liability company (together with the Company, the "Borrowers"), the
---------
Lenders and the administrative agents named therein, including, without
limitation, the Administrative Agent (the "Administrative Agents"), the Lenders
---------------------
have agreed to make loans (the "Loans") to the Borrowers upon the terms and
-----
subject to the conditions set forth therein;
WHEREAS, pursuant to the Indenture, dated as of July 15, 1996 (as amended,
supplemented or otherwise modified from time to time (the " 1996 Indenture"),
---------------
between the
2
Company and the 1996 Trustee, the Company has issued the 1996 Notes to the 1996
Holders, upon the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Pledge and Intercreditor Agreement, dated as of
August 13, 1996, by and among the Pledgor, the Collateral Agent, the
Administrative Agent and the 1996 Trustee (the "Existing Pledge and Inter-
---------------------------
creditor Agreement"), the Pledgors granted to the Collateral Agent (a) for the
------------------
benefit of the Lenders and the Administrative Agent, a first priority lien on
the Pledged Stock and (b) for the benefit of the 1996 Holders and the 1996
Trustee, a second priority lien on the Pledged Stock;
WHEREAS, pursuant to the Indenture, dated as of ___________, 1997 (as
amended, supplemented or otherwise modified from time to time, the "1997
----
Indenture"), between the Company and the 1997 Trustee, the Company has issued
---------
the 1997 Notes to the 1997 Holders, upon the terms and subject to the conditions
set forth therein;
WHEREAS, in connection with the 1997 Indenture, the Company has agreed to
cause each Pledgor to grant to the Collateral Agent for the benefit of the 1997
Holders and the 1997 Trustee a third priority lien on the Pledged Stock;
WHEREAS, each Pledgor is a Subsidiary of the Company, and it is to the
advantage of each Pledgor that the 1997 Holders purchase the 1997 Notes from the
Company;
WHEREAS, the Lenders have consented to the grant to the Collateral Agent
for the benefit of the 1997 Holders and the 1997 Trustee of a third priority
lien on the Pledged Stock;
WHEREAS, the parties hereto have agreed to amend and restate the Existing
Pledge and Intercreditor Agreement to (a) provide for the grant to the
Collateral Agent for the benefit of the 1997 Holders and the 1997 Trustee of a
third priority lien on the Pledged Stock and (b) make certain other changes to
the Existing Pledge and Intercreditor Agreement;
WHEREAS, each Pledgor is the legal and beneficial owner of the shares of
the Pledged Stock pledged by it hereunder; and
WHEREAS, (a) pursuant to the Credit Agreement, the Administrative Agent has
been granted the authority to act on behalf of all Lenders with respect to
matters specified herein, including the execution and delivery of this Amended
and Restated Pledge and Intercreditor Agreement; (b) pursuant to the 1996
Indenture, the 1996 Trustee has been granted the authority to act on behalf of
all 1996 Holders with respect to matters specified therein, including the
execution and delivery of this Amended and Restated Pledge and Intercreditor
Agreement; and (c) pursuant to the 1997 Indenture, the 1997 Trustee has been
granted the authority to act on behalf of all 1997 Holders with respect to
matters specified therein,
3
including the execution and delivery of this Amended and Restated Pledge and
Intercreditor Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration the receipt and adequacy of which is hereby acknowledged,
the parties hereby agree that the Existing Pledge and Intercreditor Agreement
shall be amended and restated to read in its entirety as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
-------------
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms shall have the following meanings:
"Agreement": this Amended and Restated Pledge and Intercreditor
---------
Agreement, as the same may be amended, supplemented or otherwise modified
from time to time.
"Code": the Uniform Commercial Code from time to time in effect in
----
the State of New York.
"Collateral": the Pledged Stock and all Proceeds.
----------
"Collateral Account": any account established to hold money Proceeds,
------------------
maintained under the sole dominion and control of the Collateral Agent,
subject to withdrawal by the Collateral Agent for the account of the
Secured Parties only as provided in Section 9(a).
"Default": until the Senior Payout Date, the meaning ascribed to such
-------
term in the Credit Agreement and, after the Senior Payout Date but prior to
the Senior Subordinated Payout Date, the meaning ascribed to such term in
the 1996 Indenture and, after the Senior Payout Date and the Senior
Subordinated Payout Date, the meaning ascribed to such term in the 1997
Indenture.
"Event of Default": until the Senior Payout Date, the meaning
----------------
ascribed to such term in the Credit Agreement and, after the Senior Payout
Date but prior to the Senior Subordinated Payout Date, the meaning ascribed
to such term in the 1996 Indenture and, after the Senior Payout Date and
the Senior Subordinated Payout Date, the meaning ascribed to such term in
the 1997 Indenture.
"Insolvency Event: (i) Either Pledgor commencing any case, proceeding
----------------
or other action (x) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
conservatorship or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
4
respect to it or its debts, or (y) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all
or any substantial part of its assets, or either Pledgor making a general
assignment for the benefit of its creditors; or (ii) there being commenced
against either Pledgor any case, proceeding or other action of a nature
referred to in clause (i) above which (x) results in the entry of an order
for relief or any such adjudication or appointment or (y) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there being commenced against either Pledgor any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) either Pledgor taking any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clauses (i), (ii) or (iii) above.
"Issuer": ▇▇▇▇▇▇ ▇▇▇▇▇ Command Company, a company incorporated under
------
the laws of Nova Scotia.
"Junior Subordinated Secured Obligations": the unpaid principal of
---------------------------------------
and interest on the 1997 Notes and all other obligations and liabilities of
the Company to the 1997 Trustee and the 1997 Holders (including, without
limitation, interest accruing at the then applicable rate provided in the
1997 Indenture after the maturity of the 1997 Notes and interest accruing
at the then applicable rate provided in the 1997 Indenture after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to either Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with the 1997 Notes, the 1997 Indenture or this
Agreement.
"Junior Subordinated Secured Parties": collectively, the 1997 Trustee
-----------------------------------
and the 1997 Holders.
"Pledged Stock": the shares of capital stock listed on Schedule 1
------------- ----------
hereto, together with all stock certificates, options or rights of any
nature whatsoever with respect to the Issuer's Capital Stock that may be
issued or granted by the Issuer to either Pledgor in respect of the Pledged
Stock while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-
--------
306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions with respect thereto.
5
"Secured Obligations": the collective reference to the Senior Secured
-------------------
Obligations and the Subordinated Secured Obligations.
"Secured Parties": collectively, the Senior Secured Parties and the
---------------
Subordinated Secured Parties.
"Securities Act": the Securities Act of 1933, as amended.
--------------
"Senior Payout Date": the date upon which the Senior Secured
------------------
Obligations shall have been paid in full and the Commitments under the
Credit Agreement shall have expired or been terminated.
"Senior Secured Obligations": the collective reference to:
--------------------------
(a) unpaid principal of and interest on the Loans and all other
obligations and liabilities of the Borrowers to the Administrative Agents
and the Lenders (including, without limitation, interest accruing at the
then applicable rate provided in the Credit Agreement after the maturity of
the Loans and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to either Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, this Agreement, the other Loan Documents or any other document
made, delivered or given in connection therewith;
(b) all obligations and liabilities of each Pledgor which may arise
under or in connection with this Agreement or any other Loan Document to
which such Pledgor is a party; and
(c) all obligations of the Borrowers with respect to any Interest Rate
Protection Agreement entered into with any Lender or any affiliate thereof.
"Senior Secured Parties": collectively, the Administrative Agents, the
----------------------
Lenders and, in connection with the obligations described in clause (c) of
the definition of Senior Secured Obligations, affiliates of Lenders.
"Senior Subordinated Payout Date": the date upon which the Senior
-------------------------------
Subordinated Secured Obligations shall have been paid in full.
"Senior Subordinated Secured Obligations": the unpaid principal of
---------------------------------------
and interest on the 1996 Notes and all other obligations and liabilities of
the Company to the 1996 Trustee and the 1996 Holders (including, without
limitation, interest accruing
6
at the then applicable rate provided in the 1996 Indenture after the
maturity of the 1996 Notes and interest accruing at the then applicable
rate provided in the 1996 Indenture after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to either Borrower, whether or not a claim for post-
filing or post-petition interest is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, the 1996 Notes, the 1996 Indenture or this Agreement.
"Senior Subordinated Secured Parties": collectively, the 1996 Trustee
-----------------------------------
and the 1996 Holders.
"Subordinated Secured Obligations": the collective reference to the
--------------------------------
Senior Subordinated Secured Obligations and the Junior Subordinated Secured
Obligations.
"Subordinated Secured Parties": collectively, the Senior Subordinated
----------------------------
Secured Parties and the Junior Subordinated Secured Parties.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interests. (a) Each Pledgor hereby confirms
-----------------------------------
and reaffirms its mortgage, pledge and assignment of the Collateral to the
Collateral Agent, for the benefit of the Senior Secured Parties, and its grant
to the Collateral Agent, for the benefit of the Senior Secured Parties, of a
security interest in the Collateral, in each case as collateral security on a
first priority basis for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the Senior
Secured Obligations.
(b) Each Pledgor hereby confirms and reaffirms its mortgage, pledge and
assignment of the Collateral to the Collateral Agent, for the benefit of the
Senior Subordinated Secured Parties, and its grant to the Collateral Agent, for
the benefit of the Senior Subordinated Secured Parties, of a security interest
in the Collateral, in each case as collateral security on a second priority
basis for the prompt and complete payment and performance when due (whether at
the stated maturity, by acceleration or otherwise) of the Senior Subordinated
Secured Obligations.
7
(c) Each Pledgor hereby mortgages, pledges and assigns the Collateral to
the Collateral Agent, for the benefit of the Junior Subordinated Secured
Parties, and grants to the Collateral Agent, for the benefit of the Junior
Subordinated Secured Parties, a security interest in the Collateral, in each
case as collateral security on a third priority basis for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Junior Subordinated Secured Obligations.
(d) As set forth in the separate granting clauses contained in Sections
2(a), (b) and (c), it is the intent of the parties hereto that this Agreement
shall confirm, reaffirm and create three separate and distinct Liens in favor
of the Collateral Agent, the first for the benefit of the Senior Secured
Parties, the second for the benefit of the Senior Subordinated Secured Parties,
and the third for the benefit of the Junior Subordinated Secured Parties.
3. Subordination of Lien of Subordinated Secured Parties; Bailment. (a)
---------------------------------------------------------------
The 1996 Trustee acknowledges and agrees that (1) any interest that it or any
1996 Holder has or may have in the Collateral shall be junior and subordinate to
the interest of the Senior Secured Parties; (2) prior to the Senior Payout Date,
it will not take any action to enforce any rights it may have hereunder, without
the prior written consent of the Administrative Agent; and (3) prior to the
Senior Payout Date, any consent given in accordance with the terms of this
Agreement by the Collateral Agent at the direction of the Administrative Agent
to any amendment, waiver or other modification in respect of the obligations of
each Pledgor hereunder shall be binding upon the Senior Subordinated Secured
Parties with respect to any similar obligations of each Pledgor hereunder as
fully as if such consent had been given by the Senior Subordinated Secured
Parties.
(b) The 1996 Trustee appoints and authorizes the Collateral Agent, and the
Collateral Agent accepts such appointment and authorization by the 1996 Trustee,
to act as the agent of, and bailee for, the Senior Subordinated Secured Parties
to hold for the benefit of the Senior Subordinated Secured Parties those shares
of the Pledged Stock evidenced by certificates, subject, however, to the prior
security interest therein and rights thereto and to the proceeds thereof of the
Senior Secured Parties.
(c) The 1997 Trustee acknowledges and agrees that (1) any interest that it
or any 1997 Holder has or may have in the Collateral shall be junior and
subordinate to the interests of the Senior Secured Parties and the Senior
Subordinated Secured Parties; (2) prior to (x) the Senior Payout Date and (y)
the Senior Subordinated Payout Date, it will not take any action to enforce any
rights it may have hereunder, without the prior written consent of the
Administrative Agent and the 1996 Trustee or, if the Senior Payout Date shall
have occurred, of the 1996 Trustee; (3) prior to the Senior Payout Date, any
consent given in accordance with the terms of this Agreement by the Collateral
Agent at the direction of the Administrative Agent to any amendment, waiver or
other modification in respect of the obligations of each Pledgor hereunder shall
be binding upon the Junior Subordinated Secured Parties with respect to any
similar obligations of each Pledgor hereunder as fully as if such
8
consent had been given by the Junior Subordinated Secured Parties; and (4) after
the Senior Payout Date but prior to the Senior Subordinated Payout Date, any
consent given in accordance with the terms of this Agreement by the Collateral
Agent at the direction of the 1996 Trustee to any amendment, waiver or other
modification in respect of the obligations of each Pledgor hereunder shall be
binding upon the Junior Subordinated Secured Parties with respect to any similar
obligations of each Pledgor hereunder as fully as if such consent had been given
by the Junior Subordinated Secured Parties.
(d) The 1997 Trustee appoints and authorizes the Collateral Agent, and the
Collateral Agent accepts such appointment and authorization by the 1997 Trustee,
to act as the agent of, and bailee for, the Junior Subordinated Secured Parties
to hold for the benefit of the Junior Subordinated Secured Parties those shares
of the Pledged Stock evidenced by certificates, subject, however, to the prior
security interests therein and the respective rights thereto and to the proceeds
thereof of the Senior Secured Parties and the Senior Subordinated Secured
Parties.
4. Stock Powers. Concurrently with the delivery to the Collateral Agent
------------
of each certificate representing one or more shares of Pledged Stock, each
Pledgor has delivered an undated stock power, or such other instrument of
transfer as may have been reasonably requested by the Collateral Agent, covering
such certificate, duly executed in blank by such Pledgor with, if the Collateral
Agent so requested, signature guaranteed.
5. Representations and Warranties. Each Pledgor hereby represents and
------------------------------
warrants that:
(a) Such Pledgor has the partnership power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant the
first, second and third priority security interests in the Collateral pursuant
to, this Agreement and has taken all necessary action to authorize its
execution, delivery and performance of, and grant each of the security interests
in the Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding obligation of
such Pledgor, enforceable in accordance with its terms, except as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of any Requirement of Law or Contractual Obligation of
such Pledgor and will not result in the creation or imposition of any Lien on
any of the properties or revenues of such Pledgor pursuant to any Requirement of
Law or Contractual Obligation of such Pledgor, except the security interests
created by this Agreement.
9
(d) No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority, and no consent of any
other Person (including, without limitation, any stockholder or creditor of such
Pledgor), is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
(e) No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of such Pledgor,
threatened by or against such Pledgor or against any of its properties or
revenues with respect to this Agreement or any of the transactions contemplated
hereby.
(f) The shares of Pledged Stock constitute 65% of the issued and
outstanding shares of all classes of the Capital Stock of the Issuer.
(g) All the shares of the Pledged Stock have been duly and validly issued
and are fully paid and nonassessable.
(h) Such Pledgor is the record and beneficial owner of, and has good and
marketable title to, the shares of Pledged Stock pledged by such Pledgor, free
of any and all Liens or options in favor of, or claims of, any other Person,
except for the separate and distinct security interests granted to the Senior
Secured Parties, the Senior Subordinated Secured Parties and the Junior
Subordinated Secured Parties.
(i) The stock certificates evidencing the Pledged Stock having been
delivered to the Collateral Agent and assuming continuous possession by the
Collateral Agent of such certificates, each of the security interests granted
pursuant to this Agreement constitutes a separate, distinct and valid perfected
security interest in the Pledged Stock in favor of the Collateral Agent, for the
benefit of the Senior Secured Parties, the Senior Subordinated Secured Parties
and the Junior Subordinated Secured Parties, respectively, enforceable in
accordance with its terms against all creditors of such Pledgor and any Persons
purporting to purchase any shares of Pledged Stock from such Pledgor.
6. Covenants. Each Pledgor covenants and agrees with the Collateral Agent
---------
and the Secured Parties that, from and after the date of this Agreement until
this Agreement is terminated and the security interests created hereby are
released:
(a) If such Pledgor shall, as a result of its ownership of the Pledged
Stock, become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock dividend or
a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights to Capital Stock, whether in addition to, in substitution of, as a
conversion of, or in exchange for any shares of the Pledged Stock, or otherwise
in respect thereof, such Pledgor shall accept the same as the agent of the
Collateral Agent and the Secured Parties, hold the same in trust for the
Collateral Agent and the Secured Parties
10
and deliver the same forthwith to the Collateral Agent in the exact form
received, duly indorsed by such Pledgor to the Collateral Agent, if required,
together with an undated stock power, or such other instrument of transfer as
may be reasonably requested by the Collateral Agent, covering such certificate
duly executed in blank by such Pledgor and with, if the Collateral Agent so
requests, signature guaranteed, to be held by the Collateral Agent, subject to
the terms hereof, as additional collateral security for the Secured Obligations.
Any sums paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of the Issuer shall be paid over to the Collateral Agent to be held
by it hereunder as additional collateral security for the Secured Obligations,
and in case any distribution of capital shall be made on or in respect of the
Pledged Stock or any property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or reclassification of the
capital of the Issuer or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Collateral Agent to be held by it
hereunder as additional collateral security for the Secured Obligations, unless,
in either case, such sums or property are distributed or otherwise paid to the
holders of the equity interests of such Pledgor. Subject to the "unless" clause
at the end of the previous sentence, if any sums of money or property so paid or
distributed in respect of the Pledged Stock shall be received by such Pledgor,
such Pledgor shall, until such money or property is paid or delivered to the
Collateral Agent, hold such money or property in trust for the Secured Parties,
segregated from other funds of such Pledgor, as additional collateral security
for the Secured Obligations.
(b) Without the prior written consent of the Administrative Agent (if the
Senior Payout Date shall not have occurred), the 1996 Trustee (if the Senior
Payout Date shall have occurred but the Senior Subordinated Payout Date shall
not have occurred) or the 1997 Trustee (if the Senior Payout Date and the Senior
Subordinated Payout Date shall have occurred), such Pledgor will not (1) vote to
enable, or take any other action to permit, the Issuer to issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of the Issuer except as permitted in the
Credit Agreement or the respective Indenture, as the case may be, (2) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral except as permitted in the Credit Agreement or the
respective Indenture, as the case may be, (3) create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person with respect to, any
of the Collateral, or any interest therein, except for the security interests
created by this Agreement and except for any Lien on the Collateral which is
junior to the Liens created hereby and which is created pursuant to an amendment
and restatement of this Agreement in form and substance satisfactory to, and
executed by, each of the parties hereto pursuant to which such junior Lien is
subordinated to all prior Liens on terms and conditions substantially similar to
those pursuant to which the Liens created hereby in favor of the Junior
Subordinated Secured Obligations are subordinated to the Liens created hereby in
favor of the Senior Secured Parties and the Senior Subordinated Secured Parties
or (4) enter into any agreement or undertaking restricting the right or ability
of such Pledgor or the Collateral Agent to sell,
11
assign or transfer any of the Collateral except as provided for in this
Agreement, the Credit Agreement and the Indentures.
(c) Such Pledgor shall not take any action inconsistent with maintaining
(i) the security interest created by Section 2(a) of this Agreement as a first
priority, perfected security interest, (ii) the security interest created by
Section 2(b) of this Agreement as a second priority, perfected security interest
and (iii) the security interest created by Section 2(c) of this Agreement as a
third priority, perfected security interest and, in each case of clauses (i),
(ii) and (iii), shall defend such security interest against claims and demands
of all Persons whomsoever.
(d) At any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of such Pledgor, such Pledgor will
promptly and duly execute and deliver such further instruments and documents and
take such further actions as the Collateral Agent may reasonably request for the
purposes of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument or
chattel paper shall be immediately delivered to the Collateral Agent, duly
endorsed in a manner satisfactory to the Collateral Agent, to be held as
Collateral pursuant to this Agreement.
(e) Such Pledgor shall pay, and save the Collateral Agent and the Secured
Parties harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other similar
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
7. Cash Dividends; Voting Rights. Unless an Event of Default shall have
-----------------------------
occurred and be continuing and the Collateral Agent shall have given notice to
the Pledgors of the Collateral Agent's intent to exercise its corresponding
rights pursuant to Section 9 below, each Pledgor shall be permitted to receive
all cash dividends or other distributions paid in the normal course of business
of the Issuer, to the extent permitted in the Credit Agreement, in respect of
the Pledged Stock and to exercise all voting and corporate rights with respect
to the Pledged Stock; provided, however, that no vote shall be cast or corporate
-------- -------
right exercised or other action taken which, in the Collateral Agent's
reasonable judgment, would impair the Pledged Stock or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, any other Loan Document, any Notes, the Indentures or this Agreement.
8. Rights of the Secured Parties and the Collateral Agent. (a) All money
------------------------------------------------------
Proceeds received by the Collateral Agent hereunder shall be held by the
Collateral Agent for the benefit of the Secured Parties in a Collateral Account.
All Proceeds while held by the Collateral Agent in a Collateral Account (or by
each Pledgor in trust for the Collateral Agent
12
and the Secured Parties) shall continue to be held as collateral security for
all the Secured Obligations and shall not constitute payment thereof until
applied as provided in Section 10(c).
(b) If an Event of Default shall occur and be continuing and the
Collateral Agent shall give notice of its intent to exercise any of such rights
to each Pledgor (1) the Collateral Agent shall have the right to receive any and
all cash dividends paid in respect of the Pledged Stock and make application
thereof to the Secured Obligations in the order provided in Section 10(c), and
(2) all shares of the Pledged Stock shall be registered in the name of the
Collateral Agent or its nominee, and the Collateral Agent or its nominee may
thereafter exercise (A) all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders of the Issuer or
otherwise and (B) any and all rights of conversion, exchange, subscription and
any other rights, privileges or options pertaining to such shares of the Pledged
Stock as if it were the absolute owner thereof (including, without limitation,
the right to exchange at its discretion any and all of the Pledged Stock upon
the merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of the Issuer, or upon the exercise by either
Pledgor or the Collateral Agent of any right, privilege or option pertaining to
such shares of the Pledged Stock, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Collateral Agent may determine), all without liability
except to account for property actually received by it, but the Collateral Agent
shall have no duty to any pledgee to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
9. Remedies. (a) If an Event of Default shall have occurred and be
--------
continuing, at any time at the Collateral Agent's election, the Collateral Agent
may apply all or any part of Proceeds held in any Collateral Account in payment
of the Secured Obligations in such order as provided in Section 10(c).
(b) If an Event of Default shall have occurred and be continuing, the
Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to
all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party with respect to the
Collateral under the Code. Without limiting the generality of the foregoing,
the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon either Pledgor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any
13
exchange, broker's board or office of the Collateral Agent or any Lender or
Holder or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any other
Secured Party shall have the right upon any such public sale or sales, and, to
the extent permitted by law, upon any such private sale or sales, to purchase
the whole or any part of the Collateral so sold, free of any right or equity of
redemption in either Pledgor, which right or equity is hereby waived or
released. The Collateral Agent shall apply any Proceeds from time to time held
by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Collateral Agent and the Secured Parties hereunder, including,
without limitation, reasonable attorneys' fees and disbursements of counsel to
the Collateral Agent, to the payment in whole or in part of the Secured
Obligations, in the order provided in Section 10(c), and only after such
application and after the payment by the Collateral Agent of any other amount
required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Collateral Agent account for the surplus, if
any, to the Pledgors. To the extent permitted by applicable law, each Pledgor
waives all claims, damages and demands it may acquire against the Collateral
Agent or any other Secured Party arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition.
10. Rights in Collateral; Application of Payments and Proceeds. (a)
----------------------------------------------------------
Notwithstanding anything to the contrary contained in any agreement, document or
instrument in favor of the Senior Subordinated Secured Parties and/or the Junior
Subordinated Secured Parties and irrespective of:
(1) the time, order or method of attachment or perfection of the
security interests created hereby,
(2) the time or order of filing or recording of financing statements
or other documents filed or recorded to perfect security interests in any
Collateral,
(3) anything contained in any filing or agreement to which the Senior
Secured Parties, the Senior Subordinated Secured Parties and/or the Junior
Subordinated Secured Parties now or hereafter may be a party, and
(4) the rules for determining priority under the Code or any other
law governing the relative priorities of secured creditors,
any security interest in the Collateral in favor of the Senior Secured Parties
has and shall have priority, to the extent of any unpaid Senior Secured
Obligations, over any security interest in
14
such Collateral in favor of the Senior Subordinated Secured Parties and the
Junior Subordinated Secured Parties, and any security interest in the Collateral
in favor of the Senior Subordinated Secured Parties has and shall have priority,
to the extent of any unpaid Senior Subordinated Secured Obligations, over any
security interest in such Collateral in favor of the Junior Subordinated Secured
Parties.
(b) In exercising rights and remedies with respect to the Collateral, the
Collateral Agent may enforce the provisions hereof and exercise remedies
hereunder, all in such order and in such manner as the Senior Secured Parties
may determine in the exercise of their sole business judgment. Such exercise
and enforcement shall include, without limitation, the rights to collect, sell,
dispose of or otherwise realize upon all or any part of the Collateral, to incur
expenses in connection with such collection, sale, disposition or other
realization and to exercise all the rights and remedies of a secured lender
under the Code of any applicable jurisdiction. The Subordinated Secured Parties
hereby (1) waive any right that they may have (whether by contract, by law or
otherwise) to require the Collateral Agent to give notice of any collection,
sale, disposition or other realization of or upon any or all of the Collateral
contemplated by this Agreement or any such right the Subordinated Secured
Parties may have to object to or otherwise contest any such collection, sale,
disposition or other realization of or upon any or all of the Collateral by the
Senior Secured Parties (including, without limitation, any requirement that the
Collateral Agent foreclose upon such Collateral under applicable law) and (2)
agree not to contest or otherwise challenge any such collection, sale,
disposition or other realization of or upon all or any of the Collateral or to
assert any claim or defense that any such collection, sale, disposition or other
realization of or upon all or any part of the Collateral was not commercially
reasonable or otherwise failed to comply in any respect with applicable law. It
is understood and agreed that, for purposes of this paragraph, after the Senior
Payout Date, the term "Senior Secured Parties", when used in this paragraph,
shall be deemed to mean the Senior Subordinated Secured Parties and the term
"Subordinated Secured Parties", when used in this paragraph, shall be deemed to
mean the Junior Subordinated Secured Parties.
(c) Any money, property or securities realized upon the sale, disposition
or other realization by the Collateral Agent or the Subordinated Secured
Parties, as the case may be, upon all or any part of the Collateral (including,
without limitation, any payment or distribution of assets of either Pledgor
consisting of, or in respect of, Collateral, whether in cash, property or
securities during the continuance of an Insolvency Event with respect to such
Pledgor) (collectively, "Realizations"), shall be applied in the following
------------
order:
(1) First, to the payment in full of all reasonable costs and
-----
expenses (including, without limitation, attorneys' reasonable fees and
disbursements) paid or incurred by the Collateral Agent in connection with
such Realization or the protection of its rights and interests in the
Collateral;
15
(2) Second, to the Administrative Agent to be applied to the payment
------
in full of all Senior Secured Obligations then due and payable in such
order as the Administrative Agent may elect in its sole discretion;
(3) Third, to the 1996 Trustee to be applied to the payment in full
-----
of all Senior Subordinated Secured Obligations then due and payable in such
order as the 1996 Trustee may elect in its sole discretion;
(4) Fourth, to the 1997 Trustee to be applied to the payment in full
------
of all Junior Subordinated Secured Obligations then due and payable in such
order as the 1997 Trustee may elect in its sole discretion; and
(5) Fifth, to pay to the applicable Pledgor, or its representative or
-----
as a court of competent jurisdiction may direct, any surplus then
remaining.
(d) Prior to the Senior Payout Date, the Subordinated Secured Parties
shall not (1) enforce or apply any security interest in all or any of the
Collateral, (2) collect or receive any proceeds of any of the Collateral or
otherwise enforce or apply any security interest in the proceeds of any of the
Collateral; or (3) in any other manner interfere with the security interest
granted in favor of the Senior Secured Parties in any of the Collateral (or the
proceeds thereof). In addition, the Subordinated Secured Parties hereby (x)
agree not to assert prior to the Senior Payout Date any claim for marshalling;
(y) consent to the collection, sale, disposition or other realization of or upon
all or any of the Collateral by the Collateral Agent prior to the Senior Payout
Date free of any security interest therein in favor of the Subordinated Secured
Parties; and (z) at the sole cost and expense of the Pledgors, agree to execute
prior to the Senior Payout Date all such releases and other documents that the
Administrative Agent may reasonably request in writing to facilitate the
collection, sale, disposition or other realization of or upon any or all of the
Collateral by the Collateral Agent (including, without limitation, the
termination of any security interests in any of the Collateral in favor of the
Subordinated Secured Parties concurrently with such sale, disposition or other
realization).
(e) If any payment or distribution, whether consisting of money, property
or securities, from any Realizations is collected or received by the
Subordinated Secured Parties in respect of the Subordinated Secured Obligations
in violation of Section 10(d), the Subordinated Secured Parties shall forthwith
deliver the same to the Collateral Agent, in the form received, duly indorsed to
the Collateral Agent, if required, to be applied to the payment or prepayment of
the Senior Secured Obligations until the Senior Secured Obligations are paid in
full. Until so delivered, such payment or distribution shall be held in trust
by the Subordinated Secured Parties as the property of the Senior Secured
Parties, segregated from other funds and property held by the Subordinated
Secured Parties.
16
(f) Prior to the Senior Subordinated Payout Date, the Junior Subordinated
Secured Parties shall not (1) enforce or apply any security interest in all or
any of the Collateral, (2) collect or receive any proceeds of any of the
Collateral or otherwise enforce or apply any security interest in the proceeds
of any of the Collateral; or (3) in any other manner interfere with the security
interest granted in favor of the Senior Subordinated Secured Parties in any of
the Collateral (or the proceeds thereof). In addition, the Junior Subordinated
Secured Parties hereby (x) agree not to assert prior to the Senior Subordinated
Payout Date any claim for marshalling; (y) consent to the collection, sale,
disposition or other realization of or upon all or any of the Collateral by the
Collateral Agent prior to the Senior Subordinated Payout Date free of any
security interest therein in favor of the Senior Subordinated Secured Parties;
and (z) at the sole cost and expense of the Pledgors, agree to execute after the
Senior Payout Date but prior to the Senior Subordinated Payout Date all such
releases and other documents that the 1996 Trustee may reasonably request in
writing to facilitate the collection, sale, disposition or other realization of
or upon any or all of the Collateral by the Collateral Agent (including, without
limitation, the termination of any security interests in any of the Collateral
in favor of the Junior Subordinated Secured Parties concurrently with such sale,
disposition or other realization).
(g) If any payment or distribution, whether consisting of money, property
or securities, from any Realizations is collected or received by the Junior
Subordinated Secured Parties after the Senior Payout Date in respect of the
Junior Subordinated Secured Obligations in violation of Section 10(f), the
Junior Subordinated Secured Parties shall forthwith deliver the same to the
Collateral Agent, in the form received, duly indorsed to the Collateral Agent,
if required, to be applied to the payment or prepayment of the Senior
Subordinated Secured Obligations until the Senior Subordinated Secured
Obligations are paid in full. Until so delivered, such payment or distribution
shall be held in trust by the Junior Subordinated Secured Parties as the
property of the Senior Subordinated Secured Parties, segregated from other funds
and property held by the Junior Subordinated Secured Parties.
11. Release of Pledged Stock. The Collateral Agent agrees that it will
------------------------
not release or otherwise dispose of any of the Pledged Stock or other Collateral
except (a) to the 1996 Trustee or the 1997 Trustee in accordance with the terms
hereof, unless instructed by the applicable Trustee to the contrary, or (b) in
the exercise of its remedies under the terms hereof or (c) to the respective
Pledgor upon satisfaction of all Secured Obligations.
12. Obligations of the Collateral Agent. (a) Unless the Collateral Agent
-----------------------------------
has theretofore received a written notice from each of the 1996 Trustee and the
1997 Trustee to the effect that the Senior Subordinated Secured Obligations and
the Junior Subordinated Secured Obligations, respectively, have been paid in
full, if the Collateral Agent shall have resigned as collateral agent hereunder,
not later than the tenth business day following the Senior Payout Date, the
Collateral Agent will deliver at the cost and expense of the Pledgors, directly
to the successor collateral agent appointed in accordance with Section 15(h) or,
if prior to such tenth business day the Collateral Agent shall not have received
notification of
17
the identity of such successor collateral agent, to the 1996 Trustee (or, if the
Collateral Agent shall have received a written notice from the 1996 Trustee to
the effect that the Senior Subordinated Secured Obligations have been paid in
full, to the 1997 Trustee), all the certificates representing the Pledged Stock
and all other documents and instruments evidencing or relating to the Collateral
then remaining in the possession of the Collateral Agent, together with any
necessary instruments of assignment or transfer pertaining thereto. Each
Pledgor agrees to give written notice to each of the 1996 Trustee and the 1997
Trustee of the Senior Payout Date within three business days thereof, and, after
receipt of such notice, the Senior Subordinated Secured Parties (unless the
Senior Subordinated Payout Date has occurred) or (if the Senior Subordinated
Payout Date has occurred) the Junior Subordinated Secured Parties agree to
promptly give written notice to the Collateral Agent requesting delivery of the
Pledged Stock and such other documents and instruments. In no event shall the
Collateral Agent relinquish control over such certificates representing the
Pledged Stock or any such other documents and instruments after the Senior
Payout Date, except as set forth in this Section or Section 11(c).
(b) Unless the 1996 Trustee has theretofore received a written notice from
the 1997 Trustee to the effect that the Junior Subordinated Secured Obligations
have been paid in full, if the 1996 Trustee shall have resigned as successor
collateral agent hereunder, not later than the tenth business day following the
Senior Subordinated Payout Date, the 1996 Trustee will deliver at the cost and
expense of the Pledgors, directly to the successor collateral agent appointed in
accordance with Section 15(h) or, if prior to such tenth business day the 1996
Trustee shall not have received notification of the identity of such successor
collateral agent, to the 1997 Trustee, all the certificates representing the
Pledged Stock and all other documents and instruments evidencing or relating to
the Collateral then remaining in the possession of the 1996 Trustee, together
with any necessary instruments of assignment or transfer pertaining thereto.
Each Pledgor agrees to give written notice to the 1997 Trustee of the Senior
Subordinated Payout Date within three business days thereof, and, after receipt
of such notice, the Junior Subordinated Secured Parties agree to promptly give
written notice to the 1996 Trustee requesting delivery of the Pledged Stock and
such other documents and instruments. In no event shall the 1996 Trustee
relinquish control over such certificates representing the Pledged Stock or any
such other documents and instruments after the Senior Subordinated Payout Date,
except as set forth in this Section or in Section 11(c).
(c) In taking any action hereunder (including the giving of consents and
waivers hereunder) prior to the Senior Payout Date, the Collateral Agent shall
not be obligated to consider the interests of the Subordinated Secured Parties
except as set forth in Section 12(a) or Section 21. In taking any action
hereunder (including the giving of consents and waivers hereunder) prior to the
Senior Subordinated Payout Date, the 1996 Trustee, or its designee, shall not be
obligated to consider the interests of the Junior Subordinated Secured Parties
except as set forth in Section 12(b) or Section 21.
18
13. Dispositions of Collateral. Notwithstanding any provision to the
--------------------------
contrary contained in any agreement, document or instrument in favor of the
Subordinated Secured Parties or to which any of the Subordinated Secured Parties
is a party, the parties hereto agree as follows:
(a) Upon the occurrence of any sale, lease, transfer or other
disposition of any of the Collateral (a "Disposition"), as between the
-----------
Senior Secured Parties and the Subordinated Secured Parties, until the
Senior Payout Date, all Collateral, including all proceeds thereof and all
prepayments or distributions in respect thereof, shall be distributed or
applied or paid to the Administrative Agent, acting on behalf of the Senior
Secured Parties, for application to the Senior Secured Obligations without
obtaining any further consent or agreement of the Subordinated Secured
Parties and in any manner as the Administrative Agent may determine, and
the Subordinated Secured Parties shall be deemed to have consented to such
Disposition and no further consent thereto or notice or accounting in
respect thereof on the part of any such Person shall be required, and,
until the Senior Payout Date, none of such Collateral shall be distributed
or paid to (or retained by) the Subordinated Secured Parties for
application to the Subordinated Secured Obligations, and the Subordinated
Secured Parties shall not have any right to restrict or permit, or approve
or disapprove, any Disposition of all or any portion or item of the
Collateral.
(b) Upon a Disposition, as between the Senior Subordinated Secured
Parties and the Junior Subordinated Secured Parties, after the Senior
Payout Date and until the Senior Subordinated Payout Date, all Collateral,
including all proceeds thereof and all prepayments or distributions in
respect thereof, shall be distributed or applied or paid to the 1996
Trustee, acting on behalf of the Senior Subordinated Secured Parties, for
application to the Senior Subordinated Secured Obligations without
obtaining any further consent or agreement of the Junior Subordinated
Secured Parties and in any manner as the 1996 Trustee may determine, and
the Junior Subordinated Secured Parties shall be deemed to have consented
to such Disposition and no further consent thereto or notice or accounting
in respect thereof on the part of any such Person shall be required, and
until the Senior Subordinated Payout Date, none of such Collateral shall be
distributed or paid to (or retained by) the Junior Subordinated Secured
Parties for application to the Junior Subordinated Secured Obligations, and
the Junior Subordinated Secured Parties shall not have any right to
restrict or permit, or approve or disapprove, any Disposition of all or any
portion or item of the Collateral.
(c) If the Collateral Agent is in possession of any proceeds from any
Disposition of any Collateral following the Senior Payout Date, the
Collateral Agent shall deliver such remaining proceeds to: (x) the 1996
Trustee if any Senior Subordinated Secured Obligations shall be then
outstanding (which each Pledgor hereby irrevocably consents to); (y) the
1997 Trustee if any Junior Subordinated Secured Obligations shall be then
outstanding (which each Pledgor hereby irrevocably
19
consents to) and the Collateral Agent has received a written notice from
the 1996 Trustee to the effect that the Senior Subordinated Secured
Obligations have been paid in full; and (z) each Pledgor or its successors
or assigns, if the Collateral Agent has received a written notice from the
1996 Trustee and the 1997 Trustee to the effect that the Senior
Subordinated Secured Obligations or the Junior Subordinated Secured
Obligations, as the case may be, have been paid in full and the 1996
Trustee and the 1997 Trustee shall agree in writing, or to whomever may be
lawfully entrusted to receive the same as a court of competent jurisdiction
shall so direct.
(d) The Senior Subordinated Secured Parties and the Junior
Subordinated Secured Parties will, immediately upon the request of the
Administrative Agent acting on behalf of the Lenders at any time prior to
the Senior Payout Date, release or otherwise terminate and discharge their
respective subordinated liens in any Collateral to the extent such
Collateral is the subject of a Disposition, and will deliver to the
Collateral Agent all documents and instruments reasonably deemed by the
Collateral Agent to be necessary or appropriate in connection therewith.
In the event that the Collateral Agent, acting on behalf of the Senior
Secured Parties at any time prior to the Senior Payout Date, settles,
adjusts or compromises any claim in respect of all or any portion or item
of Collateral, including, without limitation, any settlement, adjustment or
compromise made in connection with any bankruptcy, reorganization or
insolvency proceeding by or against either Pledgor or a Subsidiary of
either of them, or accepts or is required to accept substitute or
replacement collateral in exchange for or in lieu of or in full or partial
settlement of any Collateral, the Subordinated Secured Parties shall be
bound by any such settlement, adjustment or compromise, and shall,
immediately upon the request of the Collateral Agent, confirm their consent
to the same and release any claim that the Subordinated Secured Parties
might otherwise have in respect of such Collateral; provided that the
Senior Subordinated Secured Parties shall be granted a lien and security
interest in any such substitute or replacement Collateral on a second
priority basis and the Junior Subordinated Secured Parties shall be granted
a lien and security interest in any such substitute or replacement
Collateral on a third priority basis, which liens and security interests
shall constitute subordinated liens.
(e) The Junior Subordinated Secured Parties will, immediately upon
the request of the 1996 Trustee at any time after the Senior Payout Date
but prior to the Senior Subordinated Payout Date, release or otherwise
terminate and discharge their respective subordinated liens in any
Collateral to the extent such Collateral is the subject of a Disposition,
and will deliver to the Collateral Agent all documents and instruments
reasonably deemed by the Collateral Agent to be necessary or appropriate in
connection therewith. In the event that the Collateral Agent, acting on
behalf of the Senior Subordinated Secured Parties at any time after the
Senior Payout Date but prior to the Senior Subordinated Payout Date,
settles, adjusts or compromises any claim in respect of all or any portion
or item of Collateral, including, without limitation, any
20
settlement, adjustment or compromise made in connection with any
bankruptcy, reorganization or insolvency proceeding by or against either
Pledgor or a Subsidiary of either of them, or accepts or is required to
accept substitute or replacement collateral in exchange for or in lieu of
or in full or partial settlement of any Collateral, the Junior Subordinated
Secured Parties shall be bound by any such settlement, adjustment or
compromise, and shall, immediately upon the request of the Collateral
Agent, confirm their consent to the same and release any claim that the
Junior Subordinated Secured Parties might otherwise have in respect of such
Collateral; provided that the Junior Subordinated Secured Parties shall be
granted a lien and security interest in any such substitute or replacement
Collateral on a second priority basis, which lien and security interest
shall constitute a subordinated lien and security interest.
14. Irrevocable Authorization and Instruction to Issuer. Each Pledgor
---------------------------------------------------
hereby authorizes and instructs the Issuer to comply with any instruction
received by it from the Collateral Agent in writing that (a) states that an
Event of Default has occurred and is continuing and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from either Pledgor, and such Pledgor agrees that the Issuer shall
be fully protected in so complying.
15. The Collateral Agent. (a) Appointment. Each Secured Party hereby
-------------------- -----------
irrevocably designates and appoints the Collateral Agent as the agent of such
Secured Party under this Agreement, and each such Secured Party irrevocably
authorizes the Collateral Agent to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such duties
as are expressly delegated to the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Collateral Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any other Secured
Party, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Collateral Agent.
(b) Delegation of Duties. The Collateral Agent may execute any of its
--------------------
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Collateral Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
(c) Exculpatory Provisions. None of the Collateral Agent or any of its
----------------------
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(1) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct) or (2) responsible in any
manner to any of the Secured Parties for any recitals, statements,
representations or warranties made by either Pledgor or any officer thereof
contained in this
21
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by such Collateral Agent under or in connection
with, this Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or for any failure of either
Pledgor to perform its obligations hereunder. The Collateral Agent shall not be
under any obligation to any other Secured Party to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
either Pledgor.
(d) Reliance by Collateral Agent. The Collateral Agent shall be entitled
----------------------------
to rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrowers), independent accountants and other
experts selected by the Collateral Agent. The Collateral Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with such Collateral Agent. The Collateral Agent shall be fully justified
in failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders (or, at any
time after the Senior Payout Date but prior to the Senior Subordinated Payout
Date, the 1996 Trustee or, at any time after the Senior Payout Date and the
Senior Subordinated Payout Date, the 1997 Trustee), as it deems appropriate or
it shall first be indemnified to its satisfaction by the Senior Secured Parties
and/or the Subordinated Secured Parties against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
such action. The Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders (or, at any time after the Senior Payout Date
but prior to the Senior Subordinated Payout Date, the 1996 Trustee or, at any
time after the Senior Payout Date and the Senior Subordinated Payout Date, the
1997 Trustee), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Secured Parties and all future holders of
the Loans.
(e) Notice of Default. The Collateral Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default unless
the Collateral Agent has received notice from a Lender (if the Senior Payout
Date shall not have occurred), the 1996 Trustee (if the Senior Payout Date shall
have occurred but the Senior Subordinated Payout Date shall not have occurred)
or by the 1997 Trustee (if the Senior Payout Date and the Senior Subordinated
Payout Date shall have occurred) or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Collateral Agent receives such a
notice, the Collateral Agent shall give notice thereof to the Pledgors and the
Senior Secured Parties (if the Senior Payout Date shall not have occurred), the
Senior Subordinated Secured Parties (if the Senior Payout Date shall have
occurred but the Senior Subordinated Payout Date shall not
22
have occurred) or the Junior Subordinated Secured Parties (if the Senior Payout
Date and the Senior Subordinated Payout Date shall have occurred). The
Collateral Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders (if the Senior
Payout Date shall not have occurred) or by the 1996 Trustee (if the Senior
Payout Date shall have occurred but the Senior Subordinated Payout Date shall
not have occurred) or by the 1997 Trustee (if the Senior Payout Date and the
Senior Subordinated Payout Date shall have occurred); provided that unless and
--------
until the Collateral Agent shall have received such directions, the Collateral
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as they
shall deem advisable in the best interests of the Senior Secured Parties (if the
Senior Payout Date shall not have occurred), the Senior Subordinated Secured
Parties (if the Senior Payout Date shall have occurred but the Senior
Subordinated Payout Date shall not have occurred) or the Junior Subordinated
Secured Parties (if the Senior Payout Date and the Senior Subordinated Payout
Date shall have occurred).
(f) Non-Reliance on Collateral Agent. Each other Secured Party expressly
--------------------------------
acknowledges that none of the Collateral Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Collateral Agent
hereinafter taken shall be deemed to constitute any representation or warranty
by the Collateral Agent to any Secured Party. Except for notices, reports and
other documents expressly required to be furnished to the Secured Parties by the
Collateral Agent hereunder, the Collateral Agent shall not have any duty or
responsibility to provide any other Secured Party with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of either Pledgor which may come
into the possession of the Collateral Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
(g) Collateral Agent in Its Individual Capacity. The Collateral Agent and
-------------------------------------------
its Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with either Pledgor as though the Collateral Agent were not
the Collateral Agent hereunder.
(h) Successor Collateral Agent. The Collateral Agent may resign as
--------------------------
Collateral Agent upon 10 days' notice to the Lenders. If the Collateral Agent
shall resign as Collateral Agent under this Agreement, then the Required Lenders
shall appoint from among the Lenders a successor Collateral Agent, which
successor agent shall succeed to the rights, powers and duties of such
Collateral Agent hereunder. Upon the Senior Payout Date, the Collateral Agent
shall automatically be deemed to have resigned as Collateral Agent under this
Agreement, and (if the Senior Subordinated Payout Date has not occurred) the
1996 Trustee shall appoint a successor collateral agent for the Subordinated
Secured Parties within 10 days after its receipt of notice from the Collateral
Agent of such resignation or, in the absence of such appointment, the 1996
Trustee shall automatically be appointed as successor collateral agent on the
tenth day after its receipt of such notice, which successor collateral agent
23
(whether it shall be the 1996 Trustee or any other Person) shall succeed to the
rights, powers and duties of such Collateral Agent hereunder. After the Senior
Payout Date and upon the Senior Subordinated Payout Date, the 1996 Trustee, or
its designee, appointed in accordance with the preceding sentence, shall
automatically be deemed to have resigned as successor Collateral Agent under
this Agreement, and the 1997 Trustee shall appoint a successor collateral agent
for the Junior Subordinated Secured Parties within 10 days after its receipt of
notice from the Collateral Agent of such resignation or, in the absence of such
appointment, the 1997 Trustee, or its designee, shall automatically be appointed
as successor collateral agent on the tenth day after its receipt of such notice,
which successor collateral agent shall succeed to the rights, powers and duties
of such Collateral Agent hereunder. Effective upon any such appointment, the
term "Collateral Agent" shall mean such successor agent, and such former
Collateral Agent's rights, powers and duties as Collateral Agent shall be
terminated, without any other or further act or deed on the part of such former
Collateral Agent or any of the parties to this Agreement or any Secured Party.
After any retiring Collateral Agent's resignation as Collateral Agent, the
provisions of this Section 15 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Collateral Agent under this Agreement.
Anything in this Agreement to the contrary notwithstanding, in the event of an
automatic resignation of the Collateral Agent in the circumstances described in
the third or fourth sentence of this paragraph, such resignation shall become
effective upon the appointment of a successor collateral agent in accordance
with the provisions of such third or fourth sentence, as the case may be, and,
thereafter, the sole obligation of the Collateral Agent hereunder shall be to
make delivery of the certificates representing the Pledged Stock to such
successor collateral agent or, if the Collateral Agent shall not have received
from the 1996 Trustee a written notice of the appointment of a successor
collateral agent other than the 1996 Trustee, to the 1996 Trustee, or, if the
Collateral Agent shall not have received from the 1997 Trustee a written notice
of the appointment of a successor collateral agent other than the 1997 Trustee,
to the 1997 Trustee, as the case may be.
16. Collateral Agent's Appointment as Attorney-in-Fact. (a) Each Pledgor
--------------------------------------------------
hereby irrevocably constitutes and appoints the Collateral Agent and any officer
or agent of the Collateral Agent, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of such Pledgor and in the name of such Pledgor or in the
Collateral Agent's own name, from time to time in the Collateral Agent's
discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall lawfully do
or cause to be done pursuant to the power of attorney granted in Section 16(a).
All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
24
17. Duty of Collateral Agent. The Collateral Agent's sole duty with
------------------------
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the Code or otherwise, shall be to
deal with it in the same manner as the Collateral Agent deals with similar
securities and property for its own account, except that the Collateral Agent
shall have no obligation to invest funds held in any Collateral Account and may
hold the same as demand deposits. Neither the Collateral Agent, any Lender, the
Trustees, any Holder nor any of their respective directors, officers, employees
or agents shall be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of either Pledgor
or any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
18. Execution of Financing Statements. Pursuant to Section 9-402 of the
---------------------------------
Code, each Pledgor authorizes the Collateral Agent to file financing statements
with respect to the Collateral without the signature of such Pledgor in such
form and in such filing offices as the Collateral Agent reasonably determines
appropriate to perfect the security interests of the Collateral Agent under this
Agreement. A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
19. Notices. All notices, requests and demands to or upon the Company,
-------
either Pledgee or either Pledgor to be effective shall be in writing (or by
telex, fax or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (1) when delivered by hand or (2) if
given by mail, two days after being deposited in the mails by certified mail,
return receipt requested, or (3) if by telex, fax or similar electronic
transfer, when sent and receipt has been confirmed, addressed to such party at
its address or transmission number for notices provided under its signature
below. Any party hereto may change their addresses and transmission numbers for
notices by notice in the manner provided in this Section.
20. Severability. Any provision of this Agreement which is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
21. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
-----------------------------------------------------
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each Pledgor,
the Collateral Agent and, if the Senior Payout Date shall not have occurred, the
Administrative Agent or, if the Senior Payout Date shall have occurred but the
Senior Subordinated Payout Date shall not have occurred, the 1996 Trustee or, if
the Senior Payout Date and the Senior Subordinated Payout Date shall have
occurred, the 1997 Trustee, provided that any provision of this Agreement may be
--------
waived by the Collateral Agent and, if the Senior Payout Date shall not have
25
occurred, the Administrative Agent or, if the Senior Payout Date shall have
occurred but the Senior Subordinated Payout Date shall not have occurred, the
1996 Trustee or, if the Senior Payout Date and the Senior Subordinated Payout
Date shall have occurred, the 1997 Trustee in a letter or agreement executed by
the Collateral Agent or by telex or facsimile transmission from the Collateral
Agent and, if the Senior Payout Date shall not have occurred, the Administrative
Agent or, if the Senior Payout Date shall have occurred but the Senior
Subordinated Payout Date shall not have occurred, the 1996 Trustee or, if the
Senior Payout Date and the Senior Subordinated Payout Date shall have occurred,
the 1997 Trustee and, provided, further, that no such waiver, amendment,
-------- -------
supplement or other modification which materially and adversely affects: (x) any
Senior Subordinated Secured Party shall be effective unless it shall have been
consented to by the 1996 Trustee or (y) any Junior Subordinated Secured Party
shall be effective unless it shall have been consented to by the 1997 Trustee.
(b) Neither the Collateral Agent nor any Secured Party shall by any act
(except by a written instrument pursuant to Section 21(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Collateral Agent or any Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or any
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or such
Secured Party would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
22. Transfer of Pledged Stock to the Company. Notwithstanding anything in
----------------------------------------
this Agreement to the contrary, the Pledgor shall be entitled to transfer the
Pledged Stock to the Company, provided that such transfer shall be made
--------
expressly subject to the terms and conditions of this Agreement and that,
simultaneously with such transfer, the Company shall expressly assume, pursuant
to a written instrument in form and substance satisfactory to the Collateral
Agent, the obligations of the Pledgors hereunder and, pursuant to the terms of
such instrument, this Agreement shall be amended in a manner reasonably
acceptable to the Administrative Agent (if the Senior Payout Date shall not have
occurred), the 1996 Trustee (if the Senior Payout Date shall have occurred but
the Senior Subordinated Payout Date shall not have occurred) or the 1997 Trustee
(if the Senior Payout Date and the Senior Subordinated Payout Date shall have
occurred) to reflect such transfer, including the confirmation and reaffirmation
of the grant of first, second and third priority Liens to the Senior Secured
Parties, Senior Subordinated Secured Parties and Junior Subordinated Secured
Parties, respectively, with respect to the Pledged Stock.
26
23. Section Headings. The section headings used in this Agreement are for
----------------
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
24. Trustees Not Responsible for Recitals, Etc. The recitals hereto shall
-------------------------------------------
not be taken as those of the Trustee or either of them, and neither of the
Trustees assumes any responsibility for their correctness. Neither of the
Trustees makes any representations as to the title of the Pledgors to the
Pledged Stock, or the title to, or validity or genuineness of, any Collateral at
any time pledged and deposited with the Collateral Agent hereunder, or as to the
validity or sufficiency of this Agreement.
25. Successors and Assigns. This Agreement shall be binding upon the
----------------------
successors and assigns of the Company and shall inure to the benefit of the
Collateral Agent and the Secured Parties and their successors and assigns.
26. Governing Law. This Agreement shall be governed by, and construed and
-------------
interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective officers, thereunto duly authorized as of the date
first above written.
PLC COMMAND I, L.P., as Pledgor
By PLC COMMAND I, INC., its general partner
By:
-------------------------------
Title:
Address for Notices:
PLC Command I, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Partner
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
PLC COMMAND II, L.P., as Pledgor
By PLC COMMAND II, INC., its general partner
By:
------------------------------
Title:
Address for Notices:
PLC Command II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Partner
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY,
as Collateral Agent and Administrative Agent
By:
------------------------------
Title:
Address for Notices:
Canadian Imperial Bank of Commerce,
New York Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
UNITED STATES TRUST COMPANY
OF NEW YORK, as 1996 Trustee
By:
------------------------------
Title:
Address for Notices:
United States Trust Company of
New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK,
as 1997 Trustee
By:
------------------------------
Title:
Address for Notices:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Amended and
Restated Pledge and Intercreditor Agreement dated July __, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Pledge Agreement"),
----------------
made by and among (a) PLC COMMAND I L.P., PLC COMMAND II L.P., (b) CANADIAN
IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY (together with its successors in such
capacity, the "Collateral Agent"), (c) CANADIAN IMPERIAL BANK OF COMMERCE, NEW
----------------
YORK AGENCY, as administrative agent (in such capacity, the "Administrative
--------------
Agent"), (d) UNITED STATES TRUST COMPANY OF NEW YORK, a New York banking
-----
corporation, as trustee (together with its successors in its capacity, the "1996
----
Trustee") and (e) THE BANK OF NEW YORK, a New York banking corporation, as
-------
trustee (together with its successors in its capacity, the "1997 Trustee"). The
------------
undersigned agrees for the benefit of the Collateral Agent and the Secured
Parties (as defined in the Pledge Agreement) as follows:
1. The undersigned will be bound by the terms of the Pledge Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Collateral Agent promptly in writing of
the occurrence of any of the events described in Section 6(a) of the Pledge
Agreement.
3. The only evidence which will be required by the Company to prove the
Collateral Agent's right to a transfer of the Pledged Collateral will be the
certificates pertaining thereto and an instrument of transfer as contemplated in
Sections 14 and 15 of the Company's Memorandum of Association.
▇▇▇▇▇▇ ▇▇▇▇▇ COMMAND COMPANY
By
--------------------------------------
Title
-----------------------------------
Address for Notices:
▇▇▇▇▇▇ ▇▇▇▇▇ Command Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1 TO AMENDED AND RESTATED
PLEDGE AND INTERCREDITOR AGREEMENT
----------------------------------
DESCRIPTION OF PLEDGED STOCK
Stock
Certificate
Issuer Class of Stock No. No. of Shares
----------------- --------------- --------------- -------------
▇▇▇▇▇▇ ▇▇▇▇▇ Common Shares 3 105
Command Company
▇▇▇▇▇▇ ▇▇▇▇▇ Common Shares 4 105
Command Company
▇▇▇▇▇▇ ▇▇▇▇▇ Common Shares 5 395
Command Company
▇▇▇▇▇▇ ▇▇▇▇▇ Common Shares 6 395
Command Company