Exhibit 10.9
OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT
[BORROWER PLEDGE: GMAC PARTICIPATING PARTNERSHIPS]
OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (this "Pledge
Agreement"), dated as of January 30, 2002, by and between THE ▇▇▇▇▇▇▇ MASTER
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Borrower"), and FLEET
NATIONAL BANK, a national banking association having an address at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as agent (Fleet National Bank, in such
capacity as agent, hereinafter referred to as "Agent") for a syndicate of
Lenders (singly and collectively, the "Lenders") as specifically provided in the
Loan Agreement (as defined below).
W I T N E S S E T H
WHEREAS, pursuant to that certain Loan Agreement dated as of January 30,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Loan Agreement") entered into by and among the Borrower, the Agent and the
Lenders, the Agent and the Lenders have agreed to make a loan ("Loan") to the
Borrower in the aggregate principal amount of $225,000,000.00, upon the terms
and subject to the conditions set forth therein.
WHEREAS, the Borrower owns 100.0% of the limited partnership interests in
each of the Delaware limited partnerships described in Schedule 1 attached
hereto (the "Participating Limited Partnerships") and 100.0% of such series of
membership interests in ▇▇▇▇▇▇▇ ▇▇ Holding LLC (the "Holding Company"), a
Delaware limited liability company, as are specified on Schedule 2 attached
hereto.
WHEREAS, the Holding Company owns 100% of the membership interests in each
of the general partners of the Participating Limited Partnerships.
WHEREAS, as a condition to extending the Loan to the Borrower, the Agent
and the Lenders have required the Borrower to execute and deliver this Pledge
Agreement and certain other Security Documents to secure the Borrower's
obligations under the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Lenders
to make the Loan under the Loan Agreement, Borrower hereby agrees with Agent and
the Lenders as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are defined
in the Loan Agreement and used herein are so used as so defined, and the
following terms shall have the following meanings:
"Agent": as defined in the first paragraph of this Pledge Agreement.
"Borrower": as defined in the first paragraph of this Pledge
Agreement.
"Cash Management Agreement": shall mean that certain Cash Management
Agreement, dated as of January 30, 2002, among the Borrower, the Holding
Company, various other subsidiaries of the Borrower, the Agent and the
Lenders, as amended, supplemented or otherwise modified from time to time.
"Collateral": means the Pledged Interests and all Proceeds thereof.
"Consents": shall mean those certain Consents from the Participating
Limited Partnerships and the Holding Company referenced in Section 4 of
this Pledge Agreement.
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"Holding Company": as defined in the recitals of this Pledge
Agreement.
"Lenders": as defined in the first paragraph of this Pledge
Agreement.
"Loan": as defined in the recitals of this Pledge Agreement.
"Loan Agreement": as defined in the recitals of this Pledge
Agreement.
"Obligations": means all indebtedness, obligations and liabilities
of the Borrower to the Agent and/or any of the Lenders, whether now
existing or hereafter arising, direct or indirect, absolute or contingent,
under any one or more of: (i) this Pledge Agreement; (ii) the Loan
Agreement, Note or any other Loan Document; and (iii) each of the same as
hereafter modified, amended, extended or replaced, including, without
limitation, the Obligations (as defined in the Loan Agreement).
"Participating Limited Partnerships": as defined in the recitals of
this Pledge Agreement.
"Pledge Agreement": means this Ownership Interest Pledge and
Security Agreement, as amended, supplemented or otherwise modified from
time to time.
"Pledged Interests": means all right, title and interest of the
Borrower, whether now owned or hereafter acquired, as (i) the sole limited
partner of each of the Participating Limited Partnerships listed on
Schedule 1 hereto and (ii) the sole member and the holder of 100% of each
series of membership interest in the Holding Company listed on Schedule 2
hereto, together with all interests, certificates, options or rights of
any nature whatsoever which may be issued or granted to the Borrower by
the Participating Limited Partnerships or the Holding Company in respect
thereof.
"Proceeds": means (i) the Borrower's right, title and interest in
and to all Distributions, monies, fees, payments, compensations and
proceeds now or hereafter payable in respect of the Pledged Interests,
whether payable as profits, Distributions, asset Distributions, repayment
of loans or capital or otherwise and including all "proceeds" as such term
is defined in Section 9-306(1) of the UCC; (ii) all books, records,
electronically stored data and information relating to the Pledged
Interests and all rights of access to such books, records and information;
(iii) all contract rights, general intangibles, claims, powers,
privileges, benefits and remedies of the Borrower relating to the
foregoing; (iv) all additions to the Pledged Interests, all substitutions
therefor and all replacements thereof; and (v) all cash or non-cash
proceeds of any of the foregoing.
"UCC": means the Uniform Commercial Code from time to time in effect
in The Commonwealth of Massachusetts; provided, that if by mandatory
provisions of law, the perfection or the effect of perfection or
non-perfection of the security interest granted hereunder in the
Collateral is governed by the Uniform Commercial Code of a jurisdiction
other than Massachusetts, "UCC" means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of provisions hereof
relating to such perfection or effect of perfection or non-perfection.
2. Pledge; Grant of Security Interest. As security for the full and
punctual payment and performance of the Obligations when due and payable
(whether upon stated maturity, by acceleration or otherwise), Borrower hereby
transfers, assigns, grants, bargains, sells, conveys, hypothecates, pledges,
sets over, endorses over and delivers to Agent all the Pledged Interests, and
Borrower
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hereby grants, pledges, hypothecates, transfers and assigns to Agent a
continuing lien on and security interest in all of the Collateral.
3. Delivery of Certificates, Instruments, Etc. The Borrower shall deliver
to Agent:
(a) all original certificates, instruments and other documents, if
any, evidencing or representing the Pledged Interests, concurrently with
the execution and delivery of this Pledge Agreement; and
(b) the original certificates, instruments or other documents, if
any, evidencing or representing all other Collateral (except for
collateral which this Pledge Agreement specifically permits the Borrower
to retain) within five (5) days after the Borrower's receipt thereof.
4. Powers and Transfer Instruments. Concurrently with the delivery to the
Agent of this Pledge Agreement and each certificate, if any, representing the
Pledged Interests, the Borrower shall deliver a duly executed Consent from each
Participating Limited Partnership and from the Holding Company.
5. Representations and Warranties. The Borrower represents and warrants
that:
(a) Except for any consents as may be required in connection with
any disposition of any portion of the Collateral by laws affecting the
offering and sale of securities generally or as otherwise contemplated by
the Loan Agreement, no consent of any other person or entity (including,
without limitation, any owner or creditor of the Borrower), and no
license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing (other than the filing of financing
statements under the UCC in order to perfect a security interest in that
portion of the Collateral in which a security interest is perfected by
filing) or declaration with any governmental instrumentality is required
in connection with (i) the execution, delivery, performance, validity or
enforceability of this Pledge Agreement, (ii) the perfection or
maintenance of the security interest created hereby (including the first
priority nature of such security interest) or (iii) the exercise by the
Lender of any rights provided for in this Pledge Agreement;
(b) The Pledged Interests in the Participating Limited Partnerships
listed on Schedule 1 constitute all of the limited partnership interests
owned by the Borrower in the Participating Limited Partnerships and
constitute 100.0% of the limited partnership interests in the
Participating Limited Partnerships;
(c) The Pledged Interests in the Holding Company constitute 100.0%
of each series of membership interest in the Holding Company listed on
Schedule 2;
(d) All the Pledged Interests have been duly and validly issued and
are fully paid. No certificate or other instrument has been issued at any
time to evidence the Pledged Interests. None of the limited partnership
interests or the membership interests comprising the Collateral are dealt
in or traded on securities exchanges or in securities markets, and none by
its terms expressly provides that it is a security governed by Article 8
of the UCC or that it is an investment company security, and none is held
in a securities account (as defined in Section 8-501 of the UCC);
(e) The Borrower is the sole holder of record and sole beneficial
owner of, and has good and valid title to, the Pledged Interests in the
Participating Limited Partnerships listed on Schedule 1 and the Pledged
Interests in the Holding Company listed on Schedule
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2, free of any and all liens or options in favor of, or claims of, any
other Person, except the lien created by this Pledge Agreement;
(f) Upon the filing of the Form UCC-1 Statements referred to in
Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such Pledged
Interests and Collateral with respect to that portion of the Collateral in
which a security interest is perfected by the filing of a financing
statement, enforceable as such against all creditors of Borrower and any
Persons purporting to purchase any Pledged Interests and related
Collateral from Borrower;
(g) There are no restrictions on the transfer of the Collateral to
the Agent hereunder, or with respect to any subsequent transfer thereof or
realization thereupon by the Agent and/or the Lenders (or, if there are
any such restrictions, such transfer restrictions have been duly waived by
all required parties), and, as set forth in the Consents, the Borrower has
obtained all consents needed in connection with any such transfer or
subsequent transfer, subject to matters resulting from the operation of
law.
6. Covenants. The Borrower covenants and agrees with Agent and the Lenders
that from and after the date of this Pledge Agreement until this Pledge
Agreement shall be terminated:
(a) If the Borrower shall, as a result of its ownership of the
Pledged Interests, become entitled to receive or shall receive (i) any
limited liability company certificate (including, without limitation, any
certificate representing a 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, (ii) any
stock, (iii) any limited partnership interests (including, without
limitation, any certificate representing a 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, or (iv) any property other than cash, whether in addition to, in
substitution of, as a conversion of, or in exchange for any of the Pledged
Interests, or otherwise in respect thereof, the Borrower shall accept the
same as Agent's agent, hold the same in trust for Agent and deliver the
same forthwith to Agent in the exact form received, duly endorsed by the
Borrower to Agent, if required, together with an undated assignment or
power covering such certificate, duly executed in blank and with, if Agent
so requests, signature guaranteed, to be held by Agent hereunder as
additional security for the Obligations.
(b) Without the prior written consent of Agent, the Borrower will
not, directly or indirectly (i) vote to enable, or take any other action
to permit, the issuer(s) of the Pledged Interests to issue any interests
or shares, as applicable, or to issue any other securities convertible
into or granting the right to purchase or exchange for any interests of
the issuer(s) of the Pledged Interests, or (ii) if prohibited by the Loan
Agreement, sell, assign, transfer, exchange or otherwise dispose of, or
grant any option with respect to, the Collateral, or (iii) create, incur
or permit to exist any lien or option in favor of, or any claim of any
person or entity with respect to, any of the Collateral, or any interest
therein, except for the lien provided for by this Pledge Agreement and
liens permitted under the Loan Agreement. The Borrower will defend the
right, title and interest of Agent in and to the Collateral against the
claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
Agent, and at the sole expense of the Borrower, the Borrower will promptly
and duly execute and deliver such further instruments and documents and
take such further actions as Agent may reasonably request for the purposes
of obtaining or preserving the full benefits of this Pledge Agreement and
of the rights and powers herein granted. If any amount payable under or in
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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 promptly delivered to Agent, duly endorsed in a
manner satisfactory to Agent, to be held as Collateral pursuant to this
Pledge Agreement.
(d) The Borrower agrees to pay, and to indemnify and save Agent
harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all stamp, excise, sales or other taxes
(other than income taxes on the income of Agent or any of the Lenders)
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 Pledge Agreement.
(e) The Borrower shall, upon request from the Agent, from time to
time, cause the issuer of any securities comprising any of the Collateral
which may be, but have not been, certificated, to issue certificates with
respect thereto in the name of the Borrower or, if so requested by the
Agent, in the name of the Agent as secured party.
(f) The Borrower shall not exercise any right with respect to the
Collateral which would dilute or adversely affect Agent's rights in the
Collateral.
(g) Except as permitted in the Loan Agreement, the Borrower shall
not enter into or consent to any amendment or modification of, or with
respect to, the limited partnership agreements of the Participating
Limited Partnerships or the operating agreement of the Holding Company
without Agent's prior written consent in each instance, which consent
shall not be unreasonably withheld.
7. Cash Dividends; Distributions; Voting Rights.
(a) Unless an Event of Default shall have occurred and be
continuing, the Borrower shall be permitted to exercise all voting rights
with respect to the Pledged Interests; provided, however, that the
Borrower shall not, without the prior written consent of Agent in each
instance, which consent shall not be unreasonably withheld, vote the
Collateral in favor of, or consent to, any resolution or action which does
or might:
(i) impose any restrictions upon the sale, transfer or
disposition of the Collateral other than restrictions,
if any, the application of which is waived to the full
satisfaction of the Agent as to the Collateral; or
(ii) result in the issuance of any additional interest in the
Participating Limited Partnerships or the Holding
Company, or of any class or series of security, which
issuance might adversely affect the value of the
Collateral; or
(iii) vest additional powers, privileges, preferences or
priorities to any other class or series of interest in
the Participating Limited Partnerships or the Holding
Company to the detriment of the value of, or rights
accruing to, the Collateral; or
(iv) except as permitted in the Loan Agreement, permit the
Participating Limited Partnerships or the Holding
Company to sell, transfer, assign, pledge, mortgage or
otherwise encumber any property owned by any of them, or
to incur any new indebtedness
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in respect of such property, unless Agent has given its
prior written consent.
(b) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation, Sections
7.14, 7.15 and 7.16 thereof), the Consents, the Payment Direction Letters,
and the Cash Management Agreement (including, without limitation, Section
2.2 thereof), any and all cash dividends or Distributions or any other
payments received by the Borrower in respect of the Collateral shall be
directly deposited in a designated Depository Account in the name of the
Borrower. The Borrower agrees that, to the extent that the Borrower
receives directly any cash dividends or Distributions or any other
payments which are required to be deposited in a designated Depository
Account as provided for in the Loan Agreement, the Consents and/or the
Cash Management Agreement, then (i) such amounts shall be deemed to be
Collateral and shall be held in trust for the benefit of Agent, (ii) such
amounts shall not be commingled with any other funds or property of the
Borrower, and (iii) the Borrower shall deposit such amounts in the
applicable Depository Account within three Business Days of receipt.
8. Rights of Agent.
(a) If an Event of Default shall have occurred and be continuing,
Agent shall have the right to receive any and all cash dividends or
Distributions or other payments paid in respect of the Collateral and make
application thereof to the Obligations, in such order as Agent, in its
sole discretion, may elect. In connection therewith, if an Event of
Default shall have occurred and be continuing, the Agent shall have the
right to direct the issuer(s) of the Pledged Interests to pay all such
cash dividends or Distributions or other payment directly to the Agent or
as otherwise directed by the Agent.
(b) If an Event of Default shall have occurred and be continuing,
then any or all such Pledged Interests (including, without limitation, any
class of membership interest in the Holding Company) at Agent's option
shall be registered in the name of Agent or its nominee, and Agent or its
nominee may thereafter exercise (x) all voting and other rights pertaining
to such Pledged Interests and (y) any and all rights of conversion,
exchange, subscription and any other rights, privileges or options
pertaining to such Pledged Interests as if Agent were the absolute owner
thereof (including, without limitation, the right to exchange at its
discretion any and all of the Pledged Interests upon the merger,
consolidation, reorganization, recapitalization or other fundamental
change in the organizational structure of the Borrower, or upon the
exercise by the Borrower or Agent of any right, privilege or option
pertaining to such Pledged Interests, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Interests with any
committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability except to account for property actually received by it, but
Agent shall have no duty to exercise any such right, privilege or option
and shall not be responsible for any failure to do so or delay in so
doing.
(c) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
Borrower or against any other person or entity which may be or become
liable in respect of all or any part of the Obligations or against any
other Collateral security therefor, guarantee thereof or right of offset
with respect thereto. Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay
in doing so, nor shall it be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Borrower or any other
person
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or entity or to take any other action whatsoever with regard to the
Collateral or any part thereof.
9. Actions By Agent. The Borrower hereby designates Agent as the
attorney-in-fact of the Borrower to: (a) after the occurrence and during the
continuance of an Event of Default, endorse in favor of Agent any of the
Collateral; (b) after the occurrence and during the continuance of an Event of
Default, transfer, sell or otherwise dispose of any of the Collateral
(including, without limitation, any series of membership interest in the Holding
Company) in such name as Agent may from time to time determine; (c) cause the
issuance of certificates for book entry and/or uncertificated securities; (d)
renew, extend or roll over any Collateral; (e) make, demand and initiate actions
to enforce any of the Collateral or rights therein; and (f) take any other
action to effectuate the terms and provisions of this Pledge Agreement. Agent
may take such action with respect to the Collateral as Agent may reasonably
determine to be necessary to protect and preserve its interest in the
Collateral. Except as otherwise provided herein, all of the rights, remedies,
powers, privileges and discretions included in this Section 9 may be exercised
by Agent whether or not the Obligations are then due and whether or not an Event
of Default has occurred. The within designation and grant of power of attorney
is coupled with an interest, is irrevocable until the lien created by this
Pledge Agreement is terminated by a written instrument executed by a duly
authorized officer of Agent. The power of attorney shall not be affected by
subsequent disability or incapacity of the Borrower. Agent shall not be liable
for any act or omission to act pursuant to this Section 9, except for any act or
omission to act which is in actual bad faith.
10. Remedies.
(a) If an Event of Default shall have occurred and be continuing,
Agent may exercise, in addition to all other rights and remedies granted
in this Pledge Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the UCC. Without limiting the generality
of the foregoing, Agent, if an Event of Default shall have occurred and be
continuing, 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 the Borrower or any other person or
entity (all and each of which demands, presentments, protests,
advertisements or notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral,
or any part thereof (including, without limitation, any series of
membership interest in the Holding Company), 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 (including, without limitation, any
series of membership interest in the Holding Company) at public or private
sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of Agent 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. Agent
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 (including, without limitation,
any series of membership interest in the Holding Company) so sold, free of
any right or equity of redemption in the Borrower, which right or equity
is hereby waived or released. 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 therein or incidental
to the care or safekeeping of any of the Collateral or in any way relating
to the Collateral or the rights of Agent hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as Agent may elect,
and only after such application and after the payment by Agent of any
other amount required by any provision of law,
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including, without limitation, Section 9-615(a) of the UCC, need Agent
account for the surplus, if any, to the Borrower. To the extent permitted
by applicable law, the Borrower waives all claims, damages and demands it
may acquire against Agent arising out of the exercise by Agent of any of
its rights hereunder, except for any claims, damages and demands it may
have against Agent arising from the gross negligence or willful misconduct
of Agent. 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. The Borrower shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Collateral are insufficient
to pay the Obligations and the fees and disbursements of any attorneys
employed by Agent to collect such deficiency.
(b) If any Event of Default occurs and is continuing, any deposits,
balances or other sums credited by or due from Agent, any affiliate of
Agent or FleetBoston Financial Corporation or any of the Lenders, or from
any affiliate of any of the Lenders, to the Borrower may to the fullest
extent not prohibited by applicable law at any time or from time to time,
without regard to the existence, sufficiency or adequacy of any other
collateral, and without notice or compliance with any other condition
precedent now or hereafter imposed by statute, rule of law or otherwise,
all of which are hereby waived to the fullest extent permitted by law, be
set off, appropriated and applied by Agent against any or all of the
Obligations irrespective of whether demand shall have been made, in such
manner as Agent in its sole and absolute discretion may determine. Within
three (3) Business Days of making any such set off, appropriation or
application, Agent agrees to notify Borrower thereof, provided the failure
to give such notice shall not affect the validity of such set off or
appropriation or application. ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY
OF THE LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
11. Private Sales.
(a) The Borrower recognizes that Agent may be unable to effect a
public sale of any or all the Pledged Interests, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view
to the distribution or resale thereof. The Borrower acknowledges and
agrees that any such private sale may result in prices and other terms
less favorable to Agent than if such sale were a public sale. Agent shall
be under no obligation to delay a sale of any of the Pledged Interests for
the period of time necessary to permit the Borrower to register such
securities for public sale under the Securities Act of 1933, as amended,
or under applicable state securities laws, even if the Borrower would
agree to do so.
(b) The Borrower further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make any sale
or sales of all or any portion of the Pledged Interests pursuant to this
paragraph 11 valid and binding and in compliance with any and all other
applicable requirements of law; provided, however, that the Borrower shall
be under no obligation to register the Pledged Interests for public sale
under the Securities Act of 1933, as amended, or under applicable state
securities laws. The Borrower further agrees that a breach of any of the
covenants contained in this paragraph 11 will cause irreparable
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injury to Agent, that Agent has no adequate remedy at law in respect of
such breach and, as a consequence, that each and every covenant contained
in this paragraph 11 shall be specifically enforceable against the
Borrower, and the Borrower hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that no default has occurred with respect to the
Obligations.
12. Limitation on Duties Regarding 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 UCC or otherwise, shall be to
deal with it in the same manner as Agent deals with similar securities and
property for its own account. Neither Agent nor any of its 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
the Borrower or otherwise.
13. Financing Statements; Other Documents. The Borrower shall deliver to
Agent UCC- 1 financing statements with respect to the Collateral, duly executed
by the Borrower suitable for filing in such jurisdictions as Agent shall
reasonably request. The Borrower agrees to deliver any other document or
instrument which Agent may reasonably request in connection with the
administration and enforcement of this Pledge Agreement or with respect to the
Collateral for the purposes of obtaining or preserving the full benefits of this
Pledge Agreement and of the rights and powers herein granted.
14. Powers Coupled with an Interest. All authorizations and agencies and
powers herein contained with respect to the Collateral are irrevocable and
coupled with an interest.
15. Security Interest Absolute. All rights of the Agent hereunder, the
grant of a security interest in the Collateral and all obligations of the
Borrower hereunder, shall be absolute and unconditional irrespective of (i) any
lack of validity or enforceability of the Loan Agreement, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (ii) any change in time, manner or place of payment of,
or in any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from the Note or any other
agreement or instrument, (iii) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of or consent to or
departure from any guarantee, for all or any of the Obligations, or (iv) any
other circumstance which might otherwise constitute a defense available to
(other than the defense of indefeasible payment), or a discharge of, the
Borrower in respect of the Obligations or in respect of this Pledge Agreement.
16. Fees and Expenses. To the extent provided in the Loan Agreement, the
Borrower shall be obligated to, upon demand, pay to the Agent the amount of any
and all reasonable expenses, including the reasonable fees and expenses of its
counsel and of any experts or agents which the Agent or any Lender may incur in
connection with (i) the sale of, collection from, or other realization upon, any
of the Collateral, or (ii) during the continuance of an Event of Default, the
exercise or enforcement of any of the rights of the Agent hereunder. Any such
amounts payable as provided hereunder or thereunder shall be additional
obligations secured hereby and by the other Security Documents.
17. Termination. Upon the payment in full of the Obligations, in
immediately available funds, including, without limitation, all unreimbursed
costs and expenses of the Agent and of each Lender for which the Borrower is
responsible, the Agent shall release the Collateral granted to the Agent as
provided for herein. However, such release by the Agent shall not be deemed to
terminate or release the Borrower from any obligation or liability under this
Pledge Agreement which specifically by its terms survives the payment in full of
the Obligations.
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18. Severability. Any provision of this Pledge 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.
19. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction, or be taken into consideration in interpreting, this Pledge
Agreement.
20. No Waiver; Cumulative Remedies. Agent shall not by any act delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any 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 Agent, 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 Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
21. Waivers and Amendments; Successors and Assigns; Governing Law; Venue.
None of the terms or provisions of this Pledge Agreement may be waived, amended,
or otherwise modified except by a written instrument executed by the party
against which enforcement of such waiver, amendment, or modification is sought.
This Pledge Agreement shall be binding upon the Borrower and Agent, and the
successors and assigns of each, and shall inure to the benefit of Agent and the
Lenders and their successors and assigns and to the benefit of the Borrower and
the Borrower's successors and permitted assigns; provided that the Borrower
shall not have any right to (i) assign this Pledge Agreement or any interest
herein, or (ii) to assign any interest in the Collateral or any part thereof, or
otherwise pledge, encumber or grant any option with respect to the Collateral or
any part thereof, or any cash or property held by the Borrower as Collateral
under this Pledge Agreement if any such assignment, pledge, encumbrance or grant
would constitute a violation of the Loan Agreement. The rights of Agent under
this Pledge Agreement shall automatically be transferred to any transferee to
which Agent transfers the Note and the Loan Agreement pursuant to the terms
thereof. The construction, interpretation, validity, enforceability and effect
of all provisions of this Pledge Agreement including, but not limited to, the
payment of the Obligations and the legality of the interest rate and other
charges shall be construed and enforced in accordance with the internal laws of
The Commonwealth of Massachusetts (without regard to conflicts of laws). The
Borrower agrees to submit to non-exclusive personal jurisdiction in Suffolk
County, in The Commonwealth of Massachusetts in any action or proceeding arising
out of this Pledge Agreement and, in furtherance of such agreement, the Borrower
hereby agrees and consents that, without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the Borrower in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in The Commonwealth of Massachusetts and that any process or notice of
motion or other application to any such court in connection with any such action
or proceeding may be served upon the Borrower by registered or certified mail to
or by personal service at the last known address of the Borrower, whether such
address be within or without the jurisdiction of any such court.
22. Executive Offices. The Borrower shall not (i) change the location of
its chief executive offices or sole place of business from the location as of
the date hereof or remove its books and records from such location, or (ii)
change its name, identity or structure if, in either case, such change is
prohibited by the Loan Agreement.
-10-
23. Notices. Notices by Agent to the Borrower, to be effective, shall be
in writing and shall be hand-delivered or sent by Federal Express, or other
reputable national overnight courier service, or by postage pre-paid registered
or certified mail, return receipt requested, addressed to the Borrower at its
address set forth below their signatures hereto, with a copy in each instance to
Rosenman & Colin LLP at the address set forth in Section 14.1 of the Loan
Agreement, and shall be deemed to have been duly given or made (a) when
delivered if hand-delivered or sent by Federal Express, or other reputable
national overnight courier service, or (b) when delivered if sent by registered
or certified mail. Any communications by the Borrower to Agent may be given in
any manner set forth in the immediately preceding sentence, with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., to the addresses
set forth in Section14.1 of the Loan Agreement.
24. Entire Understanding. Agent acknowledges that this Pledge Agreement,
the Note and the other Loan Documents and Security Documents set forth the
entire agreement and understanding of Agent and the Borrower with respect to the
Loan and that no oral or other agreements, understanding, representation or
warranties exist with respect to the Loan, other than those set forth in this
Pledge Agreement, the Note and the other Loan Documents.
25. Counterpart Signatures. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to be
duly executed and delivered as of the date first above written.
BORROWER: THE ▇▇▇▇▇▇▇ MASTER LIMITED PARTNERSHIP,
A Delaware limited partnership
By: MLP GP LLC, its General Partner
By: ▇▇▇▇▇▇▇ MLP Corp., its Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2. Principal Place of Business:
c/o First Winthrop Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FLEET NATIONAL BANK,
A national banking association
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇
duly authorized
-12-
SCHEDULE 1
To Pledge
Agreement
PARTICIPATING LIMITED PARTNERSHIPS
1. ▇▇▇▇▇▇▇ Altenn L.P.
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.P.
3. ▇▇▇▇▇▇▇ Bethplain L.P.
4. ▇▇▇▇▇▇▇ Bluff L.P.
5. ▇▇▇▇▇▇▇ Bradall L.P.
6. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.P.
7. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.P.
8. ▇▇▇▇▇▇▇ Clifmar L.P.
9. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.P.
10. ▇▇▇▇▇▇▇ Dalhill L.P.
11. ▇▇▇▇▇▇▇ Daytower L.P.
12. ▇▇▇▇▇▇▇ Elport L.P.
13. ▇▇▇▇▇▇▇ Elway L.P.
14. ▇▇▇▇▇▇▇ Jameslane L.P.
15. ▇▇▇▇▇▇▇ JLE Way L.P.
16. ▇▇▇▇▇▇▇ JVF L.P.
17. ▇▇▇▇▇▇▇ Lybster L.P.
18. ▇▇▇▇▇▇▇ Merday L.P.
19. ▇▇▇▇▇▇▇ Orper L.P.
20. ▇▇▇▇▇▇▇ Plecar L.P.
21. ▇▇▇▇▇▇▇ Rotale L.P.
22. ▇▇▇▇▇▇▇ Sablemart L.P.
23. ▇▇▇▇▇▇▇ Salistown L.P.
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24. ▇▇▇▇▇▇▇ Scribe L.P.
25. ▇▇▇▇▇▇▇ Simval L.P.
26. ▇▇▇▇▇▇▇ Statmont L.P.
27. ▇▇▇▇▇▇▇ Sunway L.P.
28. ▇▇▇▇▇▇▇ Supergar L.P.
29. ▇▇▇▇▇▇▇ Superline L.P.
30. ▇▇▇▇▇▇▇ Superwest L.P.
31. ▇▇▇▇▇▇▇ Suteret L.P.
32. ▇▇▇▇▇▇▇ Syrcar L.P.
33. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ L.P.
34. ▇▇▇▇▇▇▇ Vengar L.P.
35. ▇▇▇▇▇▇▇ Walcreek L.P.
36. ▇▇▇▇▇▇▇ Wybanco L.P.
-14-
SCHEDULE 2
To Pledge
Agreement
Issuer of Series of Percentage
Holder of Pledged Pledged Type of Membership of
Interests Interest Interest Interest Issued
Interests
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Altenn 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series ▇▇▇▇▇▇ 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Bethplain 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Bluff 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Bradall 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Calane 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Carolion 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Clifmar 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Colane 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Dalhill 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Daytower 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Elport 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Elway 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Jameslane 100.0%
Limited Partnership Holding LLC
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The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series JLE Way 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series JVF 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Lybster 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Merday 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Orper 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Plecar 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Rotale 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Sablemart 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Salistown 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Scribe 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Simval 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Statmont 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Sunway 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Supergar 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Superline 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Superwest 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Suteret 100.0%
Limited Partnership Holding LLC
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The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Syrcar 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Texford 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Vengar 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Walcreek 100.0%
Limited Partnership Holding LLC
The ▇▇▇▇▇▇▇ Master ▇▇▇▇▇▇▇ ▇▇ Membership Series Wybanco 100.0%
Limited Partnership Holding LLC
-17-