Exhibit 12
SECURITY AGREEMENT
SECURITY AGREEMENT (the "AGREEMENT"), dated as of August 16,
1999 made by QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation having an
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("BORROWER"), and EACH
OF THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO OR FROM TIME TO TIME
PARTY HERETO BY EXECUTION OF A JOINDER AGREEMENT (collectively, the
"GUARANTORS"), as pledgors, assignors and debtors (Borrower, together with the
Guarantors, in such capacities and together with any successors in such
capacities, the "PLEDGORS", and each, a "PLEDGOR"), in favor of BANK OF AMERICA,
N.A., having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, in its capacity as administrative agent, as pledgee, assignee and secured
party (in such capacity and together with any successors in such capacity, the
"ADMINISTRATIVE AGENT") for the lending institutions (the "LENDERS") from time
to time party to the Credit Agreement (as hereinafter defined).
R E C I T A L S :
A. Pursuant to that certain credit agreement, dated as of
August , 1999 (as the same may be amended, amended and restated, supplemented,
or otherwise modified from time to time, the "CREDIT Agreement"; capitalized
terms used herein and not defined herein shall have the meanings assigned to
them in the Credit Agreement), among Borrower, the Guarantors, certain lenders,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as
joint lead arranger and syndication agent, NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities
LLC, as joint lead arranger, Administrative Agent, The Bank of New York, as
documentation agent, and Wachovia Bank of Georgia, as documentation agent, the
Lenders have agreed (i) to make to or for the account of Borrower, Capital
Markets Facility Loans up to an aggregate principal amount of $300.0 million,
Term A Facility Loans up to an aggregate principal amount of $400.0 million,
Term B Facility Loans up to an aggregate principal amount of $325.0 million,
Term C Facility Loans up to an aggregate principal amount of $300.0 million and
Revolving Loans up to an aggregate principal amount of up to $250.0 million
(including up to $35.0 million of Swing Loans) and (ii) subject to certain terms
and conditions, to issue certain Letters of Credit for the account of Borrower.
B. It is contemplated that Borrower may enter into one or more
Swap Contracts (the "SECURED SWAP CONTRACTS") fixing the interest rates with
respect to Loans under the Credit Agreement (all obligations of Borrower now
existing or hereafter arising under such Swap Contracts entered into with any
Creditor satisfying the requirements of clause (d) of the definition of the term
"Creditor", collectively, the "SWAP OBLIGATIONS").
C. Each Guarantor has guaranteed the obligations of Borrower
under the Credit Agreement and the other Credit Documents, and each Guarantor
desires that its Guarantee be secured hereunder.
D. Each Pledgor is or will be the legal and/or beneficial
owner of the Pledged Collateral (as hereinafter defined) to be pledged by it
hereunder.
E. It is a condition to the obligations of the Lenders to make
certain of the Loans under the Credit Agreement and a condition to any Lender
issuing certain Letters of Credit under the Credit Agree-
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ment or entering into certain Swap Contracts that each Pledgor execute and
deliver the applicable Credit Documents, including this Agreement.
F. This Agreement is given by each Pledgor in favor of
Administrative Agent for its benefit and the benefit of the other Creditors
(each a "SECURED PARTY" and collectively, the "SECURED PARTIES") to secure the
payment and performance of all of the Secured Obligations (as defined in Section
2).
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgors and Administrative Agent hereby agree as
follows:
Section 1. PLEDGE. As collateral security for the payment and
performance when due of all the Secured Obligations, each Pledgor hereby
pledges, assigns and grants to Administrative Agent for its benefit and the
benefit of the other Secured Parties, a continuing security interest in and to
and pledge of all of the right, title and interest of such Pledgor in, to and
under the following property, wherever located, whether now existing or
hereafter arising or acquired from time to time (collectively, the "PLEDGED
COLLATERAL"):
(a) all "accounts", as such term is defined in the Uniform
Commercial Code as in effect from time to time in any applicable
jurisdiction (the "UCC"), and in any event including, without
limitation, all of such Pledgor's rights to any and all (i) accounts,
accounts receivable, margin accounts, futures positions, book debts,
instruments, documents, contracts, contract rights, choses in action,
notes, drafts, acceptances, chattel paper and other forms of
obligations and receivables now or hereafter owned or held by or
payable to such Pledgor relating in any way to or arising from the sale
or lease of goods or the rendering of services by such Pledgor or any
other party, including the right to payment of any interest or finance
charge with respect thereto, together with all merchandise represented
by any of the accounts, (ii) such merchandise that may be reclaimed or
repossessed or returned to such Pledgor, (iii) such Pledgor's rights as
an unpaid vendor, including stoppage in transit, reclamation, replevin
and sequestration, (iv) assets pledged, assigned, hypothecated or
granted to, and all letters of credit, guarantee claims, Liens, and
security interests held by, such Pledgor to secure payment of any
accounts and which are delivered for or on behalf of any account
debtor, (v) accessions to all of the foregoing described properties and
interests in properties, (vi) powers of attorney for the execution of
any evidence of indebtedness or security or other writing in connection
with the foregoing, (vii) evidences of the filing of financing
statements and other statements and the registration of other
instruments in connection therewith and amendments thereto, notices to
other creditors or secured parties and certificates from filing or
other registration offices, (viii) guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (ix) customer lists
and invoices and (x) general intangibles arising out of such Pledgor's
rights in any goods, the sale of which give rise to any of the
foregoing (collectively, the "RECEIVABLES");
(b) all "inventory", as such term is defined in the UCC, of
such Pledgor wherever located and of every class, kind and description
and, in any event including, without limitation, (i) all goods,
merchandise, raw materials, work-in-process, returned goods, finished
goods, samples and consigned goods (to the extent of the consignee's
interest therein), materials and supplies of any kind or nature which
are or might be used in connection with the manufacture, printing,
publication, packing, shipping, advertising, selling or finishing of
any such goods and all other products, goods, materials and
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supplies, (ii) all inventory as is temporarily out of such Pledgor's
custody or possession, items in transit and any returns and
repossessions upon any Receivables and (iii) all substitutions therefor
or replacements thereof, and all additions and accessions thereto
(collectively, the "INVENTORY");
(c) any and all sale, service, performance and equipment or
property lease contracts, agreements, licenses and grants (whether
written or oral, or third party or intercompany), and any other
document (whether written or oral) between such Pledgor and third
parties, and all assignments, amendments, restatements, supplements,
extensions, renewals, replacements or modifications thereof, including,
without limitation, the Acquisition Agreement (collectively, the
"CONTRACTS", and each, a "CONTRACT"); PROVIDED, HOWEVER, that Contracts
shall not include any contract, agreement, grant, or other document to
the extent that such Pledgor is expressly prohibited from granting a
Lien thereon or applicable Law provides for the involuntary forfeiture
thereof in the event that a Lien is granted thereon without the consent
of the appropriate Person or Governmental Authority (as hereinafter
defined); PROVIDED, FURTHER, that in the event of the termination or
elimination of any prohibition or requirement for any consent contained
in any law, rule, regulation, contract, agreement, grant or other
document, or upon the granting of any consent, the contract, agreement,
grant or other document so excluded from the definition of Contracts by
virtue of the immediately preceding PROVISO shall (without any act or
delivery by any Person) constitute a Contract hereunder;
(d) all "equipment", as such term is defined in the UCC, and,
in any event including, without limitation, all machinery, apparatus,
equipment, office machinery, electronic data-processing equipment,
computers and computer hardware and software (whether owned or
licensed, to the extent that a security interest therein may be granted
by such Pledgor), furniture, conveyors, tools, materials, storage and
handling equipment, automotive equipment, motor vehicles, tractors,
trailers and other like property, whether or not the title thereto is
governed by a certificate of title or ownership, and all other
equipment of every kind and nature owned by such Pledgor or in which
such Pledgor may have any interest (to the extent of such interest) and
all modifications, renewals, improvements, alterations, repairs,
substitutions, attachments, additions, accessions and other property
now or hereafter affixed thereto or used in connection therewith, all
replacements and all parts therefor and together with all substitutes
for any of the foregoing (collectively, the "EQUIPMENT");
(e) all "general intangibles", as such term is defined in the
UCC, and, in any event including, without limitation, (i) all of such
Pledgor's rights, title and interest in, to and under all Contracts;
(ii) all manuals, blueprints, know-how, warranties and records in
connection with the Equipment; (iii) any and all other rights, claims,
choses-in-action and causes of action of such Pledgor against any other
Person and the benefits of any and all collateral or other security
given by any other Person in connection therewith; (iv) all lists,
books, records, ledgers, print-outs, files (whether in printed form or
stored electronically), tapes and other papers or materials containing
information relating to any of the Pledged Collateral including,
without limitation, all customer lists, identification of suppliers,
data, plans, blueprints, specification designs, drawings, recorded
knowledge, surveys, engineering reports, test reports, manuals,
standards, processing standards, performance standards, catalogs,
research data, computer and automatic machinery software and programs
and the like pertaining to operations by such Pledgor or the Pledged
Collateral, field repair data, sales data and other information
relating to sales of products now or hereafter manufactured,
distributed or franchised by such Pledgor, accounting information
pertaining to such Pledgor's operations or any of the Pledged
Collateral and all media in which or on which any of the information or
knowledge or data or records relating to such operations or any of the
Pledged Collateral may be recorded or stored and all computer programs
used for the compila-
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tion or printout of such information, knowledge, records or data, (v)
all licenses, consents, permits, variances, certifications and
approvals of any federal, state, local, foreign or other governmental
or administrative (including self-regulatory) body, instrumentality,
department or agency or any court, tribunal, administrative hearing
body, arbitration panel, commission or other similar dispute-resolving
body including, without limitation, those governing the regulation and
protection of the environment (each, a "GOVERNMENTAL AUTHORITY") (or
any Person acting on behalf of a Governmental Authority) now or
hereafter held by such Pledgor pertaining to operations now or
hereafter conducted by such Pledgor or any Pledged Collateral now or
hereafter held by such Pledgor; PROVIDED, HOWEVER, that Intangibles
shall not include any of the foregoing to the extent that such Pledgor
is expressly prohibited from granting a Lien thereon or applicable Law
provides for the involuntary forfeiture thereof in the event that a
Lien is granted thereon without the consent of the appropriate Person
or Governmental Authority (as hereinafter defined); (vi) all rights to
refund or indemnification to the extent the foregoing relate to any
Pledged Collateral and income tax refunds to the extent relating to any
Pledged Collateral, claims for tax or other refunds against any city,
county or state or federal government, or any agency or authority or
other subdivision thereof relating to any Pledged Collateral, but
excluding any of the foregoing included in the definition of
Intellectual Property Collateral (as hereinafter defined)
(collectively, the "INTANGIBLES");
(f) all insurance policies held by such Pledgor or naming such
Pledgor as insured, additional insured or loss payee (including,
without limitation, casualty insurance, liability insurance, property
insurance and business interruption insurance), all such insurance
policies entered into after the date hereof other than insurance
policies (or certificates of insurance evidencing such insurance
policies) relating to health and welfare insurance and life insurance
policies in which such Pledgor is not named as beneficiary (I.E.,
insurance policies that are not "Key Man" insurance policies) and all
rights, claims and recoveries relating thereto (including all
dividends, returned premiums and other rights to receive money in
respect of any of the foregoing) (collectively, the "INSURANCE
POLICIES");
(g) such Pledgor's right to receive the surplus funds, if any,
which are payable to such Pledgor following the termination of any
employee pension plan and the satisfaction of all liabilities of
participants and beneficiaries under such plan in accordance with
applicable law (collectively, the "PENSION PLAN REVERSIONS");
(h) the issued and outstanding shares of capital stock or
other equity interest of each Person described in SCHEDULE I-A annexed
hereto and each other corporation or other entity hereafter acquired or
formed by such Pledgor [(which are and shall remain at all times until
this Agreement terminates, certificated shares)], including the
certificates representing the Pledged Shares and any interest of such
Pledgor in the entries on the books of any financial intermediary
pertaining to the Pledged Shares and all Additional Shares (as
hereinafter defined) (collectively, the "PLEDGED SHARES"); PROVIDED,
HOWEVER, that such Pledgor shall not be required to pledge shares
possessing more than 65% of the voting power of all classes of capital
stock entitled to vote of any Subsidiary which is a controlled foreign
corporation (as defined in SECTION 957(A) of the Internal Revenue Code
of 1986, as amended from time to time (the "TAX CODE")) and, in any
event, shall not be required to pledge the shares of stock of any
Subsidiary otherwise required to be pledged pursuant to this SUBSECTION
1(H) to the extent that such pledge would constitute an investment of
earnings in United States property under SECTION 956 (or a successor
provision) of the Tax Code, which investment would trigger an increase
in the gross income of a United States shareholder of such Pledgor
pursuant to SECTION 951 (or a successor provision) of the Tax Code;
PROVIDED, FURTHER, that if following a change in the relevant sections
of the Tax Code or the regulations,
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rules, rulings, notices or other official pronouncements issued or
promulgated thereunder which would permit a pledge of 66-2/3% or more
of the total combined voting power of all classes of capital stock of
any Foreign Subsidiary entitled to vote without causing the
undistributed earnings of such Foreign Subsidiary as determined for
United States Federal income taxes to be treated as a deemed dividend
to the Pledgors for United States Federal income tax purposes, then the
65% limitation set forth above shall no longer be applicable and the
Pledgors shall duly pledge and deliver to Administrative Agent such
maximum additional percentage of the capital stock not theretofore
required to be pledged hereunder as will not cause such a deemed
dividend to have been made;
(i) subject to the provisos set forth in clause (h) above, all
additional shares of capital stock of whatever class of any issuer of
the Pledged Shares from time to time acquired by such Pledgor in any
manner (which are and shall remain at all times until this Agreement
terminates, certificated shares), including the certificates
representing such additional shares and any interest of such Pledgor in
the entries on the books of any financial intermediary pertaining to
such additional shares (collectively, the "ADDITIONAL SHARES");
(j) all membership interests and/or partnership interests, as
applicable, of each Person described in SCHEDULE I-B annexed hereto
and, to the extent such partnership or limited liability company is not
a Qualified Joint Venture under Section 9.09(A)(k) of the Credit
Agreement, each other limited liability company or partnership
hereafter acquired or formed by such Pledgor, together with all rights,
privileges, authority and powers of such Pledgor in and to each such
Person or under the membership or partnership agreement of each such
Person (the "OPERATIVE AGREEMENTS"), and the certificates, instruments
and agreements, if any, representing such membership or partnership
interests (collectively, the "INITIAL PLEDGED INTERESTS");
(k) all options, warrants, rights, agreements, additional
membership or partnership interests or other interests relating to each
such Person described in clause (j) above or any interest in any such
Person, including, without limitation, any right relating to the equity
or membership or partnership interests in any such Person or under the
Operative Agreement of any such Person, from time to time acquired by
such Pledgor in any manner and the certificates, instruments and
agreements, if any, representing such additional interests
(collectively, the "ADDITIONAL INTERESTS"; together with the Initial
Pledged Interests, the "PLEDGED INTERESTS"; the Pledged Interests,
together with the Pledged Shares, the Additional Shares and the items
or types of Pledged Collateral described in SUBSECTION 1(N) of this
Agreement, collectively, the "PLEDGED SECURITIES");
(l) all intercompany debt described in SCHEDULE II annexed
hereto (and all other intercompany debt hereafter acquired by such
Pledgor) and all certificates or instruments evidencing such
intercompany debt and all proceeds thereof, all accessions thereto and
substitutions therefor (collectively, the "INTERCOMPANY DEBT");
(m) all dividends, cash, options, warrants, rights,
instruments, distributions, returns of capital or principal, income,
interest, profits and other property, interests (debt or equity) or
proceeds, including as a result of a split, revision, reclassification
or other like change of the Pledged Securities, from time to time
received, receivable or otherwise distributed to such Pledgor in
respect of or in exchange for any or all of the Pledged Securities or
Intercompany Debt (collectively, "DISTRIBUTIONS");
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(n) without affecting the obligations of such Pledgor under
any provision prohibiting such action hereunder or under the Credit
Agreement, in the event of any consolidation or merger in which any
Person listed in SCHEDULE I-A or SCHEDULE I-B annexed hereto is not the
surviving entity, all shares of each class of the capital stock of the
successor corporation or interests or certificates of the successor
limited liability company or partnership owned by such Pledgor (unless
such successor is such Pledgor itself) formed by or resulting from such
consolidation or merger;
(o) all patents issued or assigned to and all patent
applications and registrations made by such Pledgor, including, without
limitation, the patents, patent applications, registrations and
recordings listed in SCHEDULE III annexed hereto, together with any and
all (i) rights and privileges arising under applicable law with respect
to such Pledgor's use of any patents, (ii) inventions and improvements
described and claimed therein, (iii) reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof,
(iv) income, fees, royalties, damages, claims and payments now and
hereafter due and/or payable thereunder and with respect thereto,
including, without limitation, damages and payments for past, present
or future infringements thereof, (v) rights corresponding thereto
throughout the world, and (vi) rights to ▇▇▇ for past, present and
future infringements thereof (collectively, the "PATENTS");
(p) all trademarks (including service marks), logos, federal
and state trademark registrations, common law trademarks and trade
names owned by or assigned to such Pledgor and all registrations for
the foregoing, including, without limitation, the registrations listed
in SCHEDULE IV annexed hereto, together with any and all (i) rights and
privileges arising under applicable law with respect to such Pledgor's
use of any trademarks, (ii) reissues, continuations, extensions and
renewals thereof, (iii) income, fees, royalties, damages and payments
now and hereafter due and/or payable thereunder and with respect
thereto, including, without limitation, damages, claims and payments
for past, present or future infringements thereof, (iv) rights
corresponding thereto throughout the world and (v) rights to ▇▇▇ for
past, present and future infringements thereof (collectively, the
"Trademarks"), it being expressly understood that "Trademarks" shall
not include any federal trademark applications; PROVIDED, that in the
event of the termination or elimination of the provision of applicable
law prohibiting a Lien on trademark applications, all federal trademark
applications of such Pledgor shall constitute "Trademarks" hereunder
without any further act or delivery of any Person
(q) all copyrights (whether statutory or common law) owned by
or assigned to such Pledgor, together with any and all (i) rights and
privileges arising under applicable law with respect to such Pledgor's
use of any copyrights, (ii) reissues, renewals, continuations and
extensions thereof, (iii) income, fees, royalties, damages, claims and
payments now and hereafter due and/or payable with respect thereto,
including, without limitation, damages and payments for past, present
or future infringements thereof, (iv) rights corresponding thereto
throughout the world and (v) rights to ▇▇▇ for past, present and future
infringements thereof (collectively, the "COPYRIGHTS");
(r) all license and distribution agreements and covenants not
to ▇▇▇ with any other party with respect to any Patent, Trademark, or
Copyright, whether such Pledgor is a licensor or licensee, distributor
or distributee under any such license or distribution agreement, along
with any and all (i) renewals, extensions, supplements and
continuations thereof, (ii) income, fees, royalties, damages, claims
and payments now and hereafter due and/or payable thereunder and with
respect thereto, including, without limitation, damages and payments
for past, present or future infringements or violations
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thereof, (iii) rights to ▇▇▇ for past, present and future infringements
or violations thereof and (iv) any other rights to use, exploit or
practice any or all of the Patents, Trademarks or Copyrights
(collectively, the "LICENSES");
(s) the entire goodwill connected with such Pledgor's business
including, without limitation, (i) all goodwill connected with the use
of and symbolized by any of the Intellectual Property Collateral in
which such Pledgor has any interest, (ii) all know-how, trade secrets,
customer lists, proprietary information, inventions, methods,
procedures, formulae, descriptions, name plates, catalogs, confidential
information, consulting agreements, engineering contracts and such
other assets which relate to such goodwill and (iii) all product lines
of such Pledgor's business (collectively, the "GOODWILL");
(t) all accounts maintained with a financial institution (each
such financial institution, a "Financial Intermediary") and all
investment property (as defined in the UCC) of such Pledgor, including,
without limitation, (i) all moneys, financial assets (as defined in the
UCC), checks, drafts, securities and instruments deposited or required
to be deposited in such accounts, (ii) all investments and all
certificates and instruments, if any, from time to time representing or
evidencing any other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
the foregoing items listed under subclause (i), and (iii) each consent
or other agreement from time to time entered into by such Pledgor with
any financial institution at which any of the financial accounts is
maintained and all rights of such Pledgor under each such consent or
agreement;
(u) all "documents", as such term is defined in the UCC,
including, without limitation, all receipts of such Pledgor covering,
evidencing or representing Inventory or Equipment (collectively, the
"DOCUMENTS");
(v) all "instruments", as such term is defined in the UCC,
including, without limitation, all promissory notes, drafts, bills of
exchange or acceptances (collectively, the "INSTRUMENTS"); and
(w) all "proceeds", as such term is defined in the UCC or
under other relevant law, and in any event including, without
limitation, any and all (i) proceeds of any insurance (except payments
made to a Person which is not a party to this Agreement), indemnity,
warranty, guaranty or claim payable to Administrative Agent or to such
Pledgor from time to time with respect to any of the Pledged
Collateral, (ii) payments (in any form whatsoever) made or due and
payable to such Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Pledged Collateral by any Governmental Authority (or
any Person acting on behalf of a Governmental Authority), (iii)
instruments representing obligations to pay amounts in respect of the
Pledged Collateral, (iv) products of the Pledged Collateral and (v)
other amounts from time to time paid or payable under or in connection
with any of the Pledged Collateral (collectively, the "PROCEEDS").
Notwithstanding the foregoing, to the extent that the
provision of any agreement binding on any Pledgor that governs any intangible
personal property referred to in any of clauses (a) through (w) above expressly
prohibits the pledge, assignment or transfer thereof, or the grant of a security
interest therein, such Pledgor's right, title and interest in such property
shall be excluded from the foregoing pledge, assignment, transfer and grant for
so long as such prohibition continues, it being understood that upon request of
Administrative Agent after the occurrence and during the continuance of an Event
of Default, such Pledgor will in good faith
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use reasonable efforts to obtain consent for the pledge, assignment, transfer
and creation of a security interest in favor of Administrative Agent in such
Pledgor's right, title and interest in such property. Pursuant to a Sharing and
General Allocation Agreement dated as of November 1, 1998 among Quest
Diagnostics Venture LLC, a Pennsylvania limited liability company (the "UPMC
LLC") and a Qualified Joint Venture, Quest Diagnostics of Pennsylvania, Inc., a
Delaware corporation ("Quest Pennsylvania") and UPMC Health System Diversified
Services, Inc. (such agreement, as amended from time to time to the extent any
such amendment is not materially adverse to the interest of Administrative Agent
therein being the "Sharing Agreement"), Quest Pennsylvania may from time to time
▇▇▇▇ in its own name for certain services for which the revenues belong to UPMC
LLC (such services being "UPMC Services"). Notwithstanding the foregoing,
Administrative Agent agrees that accounts receivable (and proceeds therefrom)
for UPMC LLC Services are excluded from the foregoing pledge, assignment,
transfer and grant.
The Pledged Securities, the Intercompany Debt, the
Distributions and the Proceeds relating thereto are collectively referred to as
the "SECURITIES COLLATERAL". The Patents, Trademarks, Copyrights, Licenses,
Goodwill and the Proceeds relating thereto are collectively referred to as the
"INTELLECTUAL PROPERTY COLLATERAL". The property described in clause (t) above
and the Proceeds relating thereto are collectively referred to as the "FINANCIAL
ACCOUNT COLLATERAL". The Pledged Collateral other than the Securities
Collateral, the Intellectual Property Collateral and the Financial Account
Collateral is collectively referred to as the "GENERAL COLLATERAL".
Section 2. SECURED OBLIGATIONS. This Agreement secures, and
the Pledged Collateral is collateral security for, the payment and performance
in full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under SECTION 362(A) of the Bankruptcy Code,
11 U.S.C. SS. 362(a)), of (i) with respect to the Borrower, all Obligations oF
Borrower now existing or hereafter arising under or in respect of the Credit
Agreement and all Swap Obligations of Borrower now existing or hereafter arising
under or in respect of any Secured Swap Contract (including, without limitation,
the obligations of Borrower to pay principal, interest and all other charges,
fees, expenses, commissions, reimbursements, premiums, indemnities and other
payments related to or in respect of the Obligations contained in the Credit
Agreement and the obligations contained in any Secured Swap Contract), (ii) with
respect to each Guarantor, all Obligations of such Guarantor now existing or
hereafter arising under or in respect of the Credit Agreement (including,
without limitation, the obligations of such Guarantor to pay principal, interest
and all other charges, fees, expenses, commissions, reimbursements, premiums,
indemnities and other payments related to or in respect of the Obligations
contained in the Credit Agreement) and (iii) without duplication of the amounts
described in clauses (i) and (ii), all Obligations of the Pledgors now existing
or hereafter arising under or in respect of this Agreement or any other Security
Document, including, without limitation, all charges, fees, expenses,
commissions, reimbursements, premiums, indemnities and other payments related to
or in respect of the Obligations contained in this Agreement or in any other
Security Document, in each case whether in the regular course of business or
otherwise (the obligations described in clauses (i), (ii) and (iii) of this
SECTION 2, collectively, the "SECURED OBLIGATIONS").
Section 3. NO RELEASE. Nothing set forth in this Agreement
shall relieve any Pledgor from the performance of any term, covenant, condition
or agreement on such Pledgor's part to be performed or observed under or in
respect of any of the Pledged Collateral or from any liability to any Person
under or in respect of any of the Pledged Collateral or shall impose any
obligation on Administrative Agent or any other Secured Party to perform or
observe any such term, covenant, condition or agreement on such Pledgor's part
to be so performed or observed or shall impose any liability on Administrative
Agent or any other Secured Party for any act or omission on the part of such
Pledgor relating thereto or for any breach of any representation or warranty on
the part of such Pledgor contained in this Agreement or under or in respect of
the Pledged Collateral or made in
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connection herewith or therewith. The obligations of each Pledgor referred to in
this Section 3 shall survive the termination of this Agreement and the discharge
of such Pledgor's other obligations under this Agreement, any Swap Contract and
the other Credit Documents.
Section 4. PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; USE OF
PLEDGED COLLATERAL.
(a) DELIVERY OF CERTIFICATED SECURITIES COLLATERAL. All
certificates, agreements or instruments representing or evidencing the
Securities Collateral, to the extent not previously delivered to
Administrative Agent, shall immediately upon receipt thereof by any
Pledgor be delivered to Administrative Agent pursuant hereto. All
certificated Securities Collateral shall be in suitable form for
transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to Administrative Agent.
Administrative Agent shall have the right, at any time upon the
occurrence and during the continuance of any Event of Default and
without notice to any Pledgor, to endorse, assign or otherwise transfer
to or to register in the name of Administrative Agent or any of its
nominees or endorse for negotiation any or all of the Securities
Collateral, without any indication that such Securities Collateral is
subject to the security interest hereunder. In addition, Administrative
Agent shall have the right at any time to exchange certificates
representing or evidencing Pledged Securities for certificates of
smaller or larger denominations.
(b) PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL. If any
issuer of Pledged Securities is organized in a jurisdiction which does
not permit the use of certificates to evidence equity ownership, or if
any of the Pledged Securities are at any time not evidenced by
certificates of ownership, then each applicable Pledgor shall, to the
extent permitted by applicable Law, record such pledge on the
equityholder register or the books of the issuer, cause the issuer to
execute and deliver to Administrative Agent an acknowledgment of the
pledge of such Pledged Securities substantially in the form of EXHIBIT
1 annexed hereto, execute any customary pledge forms or other documents
necessary or appropriate to complete the pledge and give Administrative
Agent the right to transfer such Pledged Securities under the terms
hereof and provide to Administrative Agent upon written request an
opinion of counsel, in form and substance satisfactory to
Administrative Agent, confirming such pledge.
(c) FINANCING STATEMENTS AND OTHER FILINGS. The only filings,
registrations and recordings necessary to create, preserve, protect and
perfect the security interest granted by each Pledgor to Administrative
Agent pursuant to this Agreement in respect of the Pledged Collateral
are listed in ANNEX A annexed hereto. All such filings, registrations
and recordings will be filed, registered and recorded contemporaneously
with the initial funding under the Credit Agreement. Each Pledgor
agrees that at any time and from time to time, it will execute and, at
the sole cost and expense of the Pledgors file and refile, or permit
Administrative Agent to file and refile, such financing statements,
continuation statements and other documents (including, without
limitation, this Agreement), in form acceptable reasonably to
Administrative Agent, in such offices (including, without limitation,
the United States Patent and Trademark Office and the United States
Copyright Office) as Administrative Agent may deem necessary or
appropriate, wherever required by law in order to perfect, continue and
maintain a valid, enforceable security interest in the Pledged
Collateral as provided herein and to preserve the other rights and
interests granted to Administrative Agent hereunder, as against third
parties, with respect to any Pledged Collateral. Each Pledgor
authorizes Administrative Agent to file any such financing or
continuation statement or other document without the signature of such
Pledgor where permitted by law.
(d) MOTOR VEHICLES. At any time after the occurrence and
during the continuance of an Event of Default, each Pledgor shall, upon
the request of Administrative Agent, deliver to Administrative
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Agent originals of the certificates of title or ownership for the motor
vehicles (and any other Equipment covered by certificates of title or
ownership owned by it) with Administrative Agent listed therein as
lienholder.
(e) SUPPLEMENTS; FURTHER ASSURANCES. Each Pledgor agrees to do
such further acts and things, and to execute and deliver to
Administrative Agent such additional assignments, agreements,
supplements, powers and instruments, as Administrative Agent may deem
necessary or appropriate, wherever required by Law, in order to
perfect, preserve and protect the security interest in the Pledged
Collateral as provided herein and the rights and interests granted to
Administrative Agent hereunder, to carry into effect the purposes of
this Agreement or better to assure and confirm to Administrative Agent
or permit Administrative Agent to exercise and enforce its respective
rights, powers and remedies hereunder with respect to any Pledged
Collateral. Without limiting the foregoing, each Pledgor shall make,
execute, endorse, acknowledge, file or refile and/or deliver to
Administrative Agent from time to time upon the reasonable request of
Administrative Agent such lists, descriptions and designations of the
Pledged Collateral, copies of warehouse receipts, receipts in the
nature of warehouse receipts, bills of lading, documents of title,
vouchers, invoices, schedules, confirmatory assignments, supplements,
additional security agreements, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, reports and
other assurances or instruments. Administrative Agent may institute and
maintain upon prior notice to Borrower and such Pledgor, in its own
name or in the name of any Pledgor, such suits and proceedings as
Administrative Agent may be advised in writing by counsel shall be
necessary or expedient to prevent any material impairment of the
security interest in or perfection of the Pledged Collateral. All of
the foregoing shall be at the sole cost and expense of the Pledgors.
(f) USE AND PLEDGE OF PLEDGED COLLATERAL. Unless an Event of
Default shall have occurred and be continuing, Administrative Agent
shall from time to time execute and deliver, upon written request of
any Pledgor and at the sole cost and expense of the Pledgors, any and
all proxies, instruments, certificates or other documents, in a form
reasonably requested by such Pledgor, necessary or appropriate in the
reasonable judgment of such Pledgor to enable such Pledgor to continue
to exploit, license, use, enjoy and protect the Pledged Collateral,
except as may be prohibited by the terms of this Agreement or the
Credit Agreement. The Pledgors and Administrative Agent acknowledge
that this Agreement is intended to grant to Administrative Agent for
the benefit of the Secured Parties a security interest in and Lien upon
the Pledged Collateral and shall not constitute or create a present
assignment of any of the Pledged Collateral.
Section 5. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each
Pledgor represents, warrants and covenants as follows:
(a) PERFECTION ACTIONS; PRIOR LIENS. Upon the completion of
the deliveries, filings and other actions contemplated in SUBSECTIONS
4(A) through 4(C) hereof and SUBSECTIONS 9(A) and 9(B) hereof, the
security interest granted to Administrative Agent for the benefit of
the Secured Parties pursuant to this Agreement in and to the Pledged
Collateral will constitute a perfected security interest therein,
superior and prior to the rights of all other Persons therein other
than with respect to (i) the Liens identified on ANNEX B relating to
the items of Pledged Collateral identified on such annex, (ii) with
respect to General Collateral acquired after the date hereof, Liens of
the type described in clauses (c), (d), (g) and (m) of the definition
of Permitted Liens and clauses (h) - (j) of the definition of Permitted
Customary Liens and (iii) Subordinate Liens (as hereinafter defined)
created or authorized under any Law of any applicable Governmental
Authority if and to the extent that the Law creating or authorizing
such Lien provides that such Lien is superior to the Lien and security
interest created and
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evidenced hereby (the Liens described in clause (iii), the
"Governmental Prior Liens", and the Liens described in CLAUSES (I),
(II) and (III), "PRIOR LIENS").
(b) NO LIENS. Such Pledgor is as of the date hereof, and, as
to Pledged Collateral acquired by it from time to time after the date
hereof, such Pledgor will be, the sole direct and beneficial owner of
its interest in all Pledged Collateral pledged by it hereunder free
from any Lien or other right, title or interest of any Person other
than (i) Prior Liens, (ii) the Lien and security interest created by
this Agreement and (iii) Subordinate Liens. Pledgor shall defend the
Pledged Collateral pledged by it hereunder against all claims and
demands of all Persons at any time claiming any interest therein
adverse to Administrative Agent or any other Secured Party. There is no
agreement, and no Pledgor shall enter into any agreement or take any
other action, that would result in the imposition of any other Lien,
restrict the transferability of any of the Pledged Collateral or
otherwise impair or conflict with such Pledgors' obligations or the
rights of Administrative Agent hereunder.
"SUBORDINATE LIENS" shall mean (A) with respect to the General
Collateral, Liens of the type described in clauses (b), (c), (d), (f),
(g) and (h) of the definition of Permitted Liens and Liens of the type
described in SUBSECTION 5[(D)] of this Agreement (PROVIDED, HOWEVER,
that such Pledgor shall comply with the provisions of SUBSECTION 5(O)
of this Agreement) and (B) with respect to all other Pledged
Collateral, Liens of the type described in SUBSECTION 5(O) of this
Agreement (PROVIDED, HOWEVER, that such Pledgor shall comply with the
provisions of SUBSECTION 5(O) of this Agreement).
(c) OTHER FINANCING STATEMENTS. There is no (nor will there be
any) valid or effective financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) covering
or purporting to cover any interest of any kind in the Pledged
Collateral other than those relating to (i) Prior Liens, (ii) this
Agreement and (iii) Subordinate Liens, and so long as any of the
Secured Obligations remain unpaid or the Commitments of the Lenders to
make any Loan or to issue any Letter of Credit shall not have expired
or been sooner terminated, no Pledgor shall execute, authorize or
permit to be filed in any public office any financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to any Pledged Collateral, except,
in each case, financing statements filed or to be filed in respect of
and covering the security interests granted by such Pledgor pursuant to
this Agreement and financing statements relating to Prior Liens or
Subordinate Liens that in each such case do not constitute Governmental
Prior Liens.
(d) CHIEF EXECUTIVE OFFICE; CHANGE OF NAME. The chief
executive office of such Pledgor is located at the address indicated
next to its name in ANNEX C annexed hereto. Such Pledgor shall not move
its chief executive office, except to such new location as such Pledgor
may establish in accordance with the last sentence of this SUBSECTION
5(D). Such Pledgor shall not establish a new location for its chief
executive office nor shall it change its name until (i) it shall have
given Administrative Agent not less than thirty (30) days' prior
written notice of its intention so to do, clearly describing such new
location or name and (ii) with respect to such new location or name,
such Pledgor shall have taken all action reasonably satisfactory to
Administrative Agent to maintain the perfection and priority of the
security interest of Administrative Agent for the benefit of the
Secured Parties in the Pledged Collateral intended to be granted
hereby, including, without limitation, obtaining waivers of landlord's
or warehouseman's liens with respect to such new location.
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(e) LOCATION OF EQUIPMENT. The principal laboratories where
Equipment held on the date hereof by such Pledgor is located are at the
addresses indicated next to its name in ANNEX C annexed hereto. The
principal laboratories where Equipment now held or subsequently
acquired shall be kept are located at one or more of the locations
listed in ANNEX C annexed hereto, or such new location as such Pledgor
may establish if with respect to such new location, such Pledgor shall
have taken all action reasonably satisfactory to Administrative Agent
to perfect the security interest of Administrative Agent for the
benefit of the Secured Parties in the Pledged Collateral intended to be
granted hereby to the extent such security interest is not already
perfected.
(f) DUE AUTHORIZATION AND ISSUANCE. All of the Pledged Shares
have been, and to the extent hereafter issued will be upon such
issuance, duly authorized, validly issued and fully paid and
nonassessable. All of the Initial Pledged Interests have been fully
paid for, and there is no amount or other obligation owing by any
Pledgor to any issuer of the Initial Pledged Interests in exchange for
or in connection with the issuance of the Initial Pledged Interests or
any Pledgor's status as a partner or a member of any issuer of the
Initial Pledged Interests.
(g) NO VIOLATIONS, ETC. The pledge of the Pledged Securities
pursuant to this Agreement does not violate REGULATION T, U OR X of the
Federal Reserve Board.
(h) NO OPTIONS, WARRANTS, ETC. There are no options, warrants,
calls, rights, commitments or agreements of any character to which such
Pledgor is a party or by which it is bound obligating such Pledgor to
issue, deliver or sell or cause to be issued, delivered or sold,
additional Pledged Securities or obligating such Pledgor to grant,
extend or enter into any such option, warrant, call, right, commitment
or agreement. There are no voting trusts or other agreements or
understandings to which such Pledgor is a party with respect to the
transfer, voting or exercise of any other right of the equity interests
of any issuer of the Pledged Securities.
(i) [Reserved].
(j) AUTHORIZATION, ENFORCEABILITY. Such Pledgor has the
requisite organizational power, authority and legal right to pledge and
grant a security interest in all the Pledged Collateral pledged by it
pursuant to this Agreement, and this Agreement constitutes the legal,
valid and binding obligation of such Pledgor, enforceable against such
Pledgor in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
(k) NO CONFLICTS, CONSENTS, ETC. Neither the execution and
delivery of this Agreement by each Pledgor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms
hereof (i) violates any charter or by-laws or other organizational
document of such Pledgor or any issuer of Pledged Securities, (ii)
violates the terms of any agreement, indenture, mortgage, deed of
trust, equipment lease, instrument or other document to which such
Pledgor is a party, or by which it may be bound or to which any of its
properties or assets may be subject, which violation or conflict could
reasonably be expected to have a Material Adverse Effect, (iii)
conflicts with any law, order, rule or regulation applicable to any
such Pledgor of any Governmental Authority having jurisdiction over
such Pledgor or its property, or (iv) results in or requires the
creation or imposition of any Lien (other
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than the Lien contemplated hereby) upon or with respect to any of the
property now owned or hereafter acquired by such Pledgor. No material
consent of any party (including, without limitation, equityholders or
creditors of such Pledgor or any account debtor under a Receivable) and
no material consent, authorization, approval, license or other action
by, and no notice to or filing with, any Governmental Authority or
regulatory body or other Person is required for (x) the pledge by such
Pledgor of the Pledged Collateral pledged by it pursuant to this
Agreement or for the execution, delivery or performance of this
Agreement by such Pledgor, (y) the exercise by Administrative Agent of
the rights provided for in this Agreement or (z) the exercise by
Administrative Agent of the remedies in respect of the Pledged
Collateral pursuant to this Agreement, other than, with respect to
clauses (y) and (z) notifications and filings relating to permits and
licenses issued by any Governmental Authority. In the event that
Administrative Agent desires to exercise any remedies, voting or
consensual rights or attorney-in-fact powers set forth in this
Agreement and determines it necessary to obtain any approvals or
consents of any Governmental Authority or any other Person therefor,
then, upon the reasonable request of Administrative Agent, such Pledgor
agrees to use its best efforts to assist and aid Administrative Agent
to obtain as soon as practicable any necessary approvals or consents
for the exercise of any such remedies, rights and powers.
(l) PLEDGED COLLATERAL. All information set forth herein,
including the schedules and annexes attached hereto, and all
information contained in any documents, schedules and lists heretofore
delivered to any Secured Party in connection with this Agreement, in
each case, relating to the Pledged Collateral, is accurate and complete
in all material respects. The Pledged Collateral described on the
schedules attached hereto constitutes all of the property of such type
of Pledged Collateral owned or held by the Pledgors.
(m) INSURANCE. No Pledgor shall take any action that impairs
the rights of Administrative Agent or any Secured Party in the Pledged
Collateral. Each Pledgor shall at all times keep the Inventory and
Equipment insured in accordance with the provisions of Section 9.04 of
the Credit Agreement.
(n) INSURANCE PROCEEDS. Any proceeds of insurance received by
any Pledgor shall constitute Net Available Proceeds and shall be
applied by it as provided in SECTION 2.10(A)(I) of the Credit
Agreement. In the event that any Pledgor is permitted to and elects to
apply such proceeds to the repair or replacement of any item of Pledged
Collateral, such Pledgor shall upon its receipt of such proceeds from
Administrative Agent promptly commence and diligently continue to
perform such repair or promptly effect such replacement. Upon the
occurrence and during the continuance of any Event of Default,
Administrative Agent shall have the option to apply any proceeds of
insurance received by any Pledgor in respect of the Pledged Collateral
toward the payment of the Secured Obligations in accordance with
SECTION 13 hereof or to continue to hold such proceeds as additional
collateral to secure the performance by the Pledgors of the Secured
Obligations.
(o) PAYMENT OF TAXES; COMPLIANCE WITH LAWS; CLAIMS. Each
Pledgor shall pay prior to the date on which any penalties would attach
thereto all property and other taxes, assessments and governmental
charges or levies imposed upon, and all claims (including claims for
labor, materials, warehousing and supplies) against, the Pledged
Collateral. Each Pledgor shall comply with all Laws applicable to the
Pledged Collateral the failure to comply with which would have a
material adverse effect on the value of the Pledged Collateral or an
adverse effect on the Lien on such Pledged Collateral granted to
Administrative Agent hereunder. Notwithstanding the foregoing, each
Pledgor may at its
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own expense contest the amount or applicability of any of the
obligations described in the preceding sentences of this SUBSECTION
5(O) by appropriate legal or administrative proceedings, prosecution of
which operates to prevent the collection thereof and the sale or
forfeiture of the Pledged Collateral or any part thereof to satisfy the
same; PROVIDED, HOWEVER, that in connection with such contest, such
Pledgor shall have made provision for the payment of such contested
amount on such Pledgor's books if and to the extent required by
generally accepted accounting principles. Notwithstanding the foregoing
provisions of this SUBSECTION 5(O), (x) no contest of any such
obligation may be pursued by such Pledgor if such contest would expose
Administrative Agent or any other Secured Party to (A) any possible
criminal liability or (B) unless such Pledgor shall have furnished a
bond or, other security therefor satisfactory to Administrative Agent,
any other affected Secured Party, any additional civil liability for
failure to comply with such obligation and (y) if at any time payment
of any obligation imposed upon such Pledgor by this SUBSECTION 5(O)
shall become necessary to prevent the imposition of remedies because of
non-payment, such Pledgor shall pay the same in sufficient time to
prevent the imposition of remedies in respect of such default or
prospective default.
(p) ACCESS TO BOOKS AND RECORDS. Upon reasonable request to
such Pledgor, Administrative Agent shall have full and free access
during normal business hours to all of the books, correspondence and
records of such Pledgor relating to the Pledged Collateral, and
Administrative Agent and its representatives may examine the same, take
extracts therefrom and make photocopies thereof.
Section 6. SPECIAL PROVISIONS CONCERNING GENERAL COLLATERAL.
(a) SPECIAL REPRESENTATIONS AND WARRANTIES. [Reserved].
(b) MAINTENANCE OF RECORDS. Each Pledgor shall keep and
maintain at its own cost and expense appropriate records of each
Receivable, in a manner consistent with its past business practice.
Each Pledgor shall, at such Pledgor's sole cost and expense, upon
Administrative Agent's written demand made at any time after the
occurrence and during the continuance of any Event of Default, deliver
all documents evidencing Receivables and any books and records relating
thereto in its possession to Administrative Agent or to its
representatives (copies of which evidence and books and records may be
retained by such Pledgor). Upon the occurrence and during the
continuance of any Event of Default and following the exercise by the
Lenders of their remedies in accordance with Section 10 of the Credit
Agreement, Administrative Agent may transfer a full and complete copy
of any Pledgor's books, records, credit information, reports, memoranda
and all other writings relating to the Receivables to and for the use
by any Person that has acquired or is contemplating acquisition of an
interest in the Receivables or Administrative Agent's security interest
therein without the consent of any Pledgor.
(c) [Reserved].
(d) MODIFICATION OF TERMS, ETC. No Pledgor shall rescind or
cancel any indebtedness evidenced by any Receivable or modify any term
thereof or make any adjustment with respect thereto except in the
ordinary course of business consistent with industry practice, or
extend or renew any such indebtedness except in the ordinary course of
business consistent with industry practice or compromise or settle any
dispute, claim, suit or legal proceeding relating thereto except in the
ordinary course of business consistent with prudent business practice
or sell any Receivable or interest therein without the prior written
consent of Administrative Agent and otherwise as permitted under the
Credit Agreement.
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(e) COLLECTION. Each Pledgor shall use reasonable commercial
efforts to cause to be collected from the account debtor of each of the
Receivables any and all amounts owing under or on account of such
Receivable after taking into account disallowances, discounts and other
sales adjustments in accordance with such Pledgor's ordinary course of
business consistent with its collection practices as in effect from
time to time.
(f) [Reserved].
(g) CASH COLLATERAL. Upon the occurrence and during the
continuance of any Event of Default, if Administrative Agent so
directs, each Pledgor shall cause all payments on account of the
Receivables to be held by Administrative Agent as cash collateral in
accordance with the provisions of SUBSECTIONS 9(E) and 9(F) hereof.
Without notice to or assent by any Pledgor, Administrative Agent may
apply any or all amounts then or thereafter held as cash collateral in
the manner provided in SUBSECTIONS 9(E) and 9(F).
(h) WAREHOUSE RECEIPTS NON-NEGOTIABLE. If any warehouse
receipt or receipt in the nature of a warehouse receipt is issued with
respect to any of the Inventory, the applicable Pledgor shall not
permit such warehouse receipt or receipt in the nature thereof to be
"negotiable" (as such term is used in SECTION 7-104 of the UCC or under
other relevant law).
(i) CONSENTS TO ASSIGNMENT OF CONTRACTS. After the occurrence
and during the continuance of an Event of Default, to the extent that
any contract or other agreement of any Pledgor would constitute a
Contract hereunder but for the exclusions contained in the provisos in
the definition of "Contracts" hereunder, such Pledgor shall use its
best efforts to cause the counterparty thereto to deliver the consent
contemplated in the provisos of such definition within 30 days after
the date hereof. For purposes of this SUBSECTION 6(J), "best efforts"
shall not require such Obligor to pay or cause to be paid any
renumeration to any such counterparty in order to obtain such consent
to the extent that it would be commercially unreasonable to do so.
(j) FAIR LABOR STANDARDS ACT. Any goods now or hereafter
produced by each Pledgor included in the Pledged Collateral have been
and will be produced in substantial compliance with the requirements of
the Fair Labor Standards Act of 1938, as amended.
Section 7. SPECIAL PROVISIONS CONCERNING SECURITIES
COLLATERAL.
(a) PLEDGE OF ADDITIONAL SECURITIES. Each Pledgor shall, upon
obtaining any Pledged Securities or Intercompany Debt of any Person,
accept the same in trust for the benefit of Administrative Agent and
promptly (and in any event within five Business Days) deliver to
Administrative Agent a pledge amendment, duly executed by such Pledgor,
in substantially the form of EXHIBIT 3 annexed hereto (each, a "PLEDGE
AMENDMENT"), and the certificates and other documents required under
SUBSECTIONS 4(A) and 4(B) in respect of the additional Pledged
Securities or Intercompany Debt which are to be pledged pursuant to
this Agreement, and confirming the attachment of the Lien hereby
created on and in respect of such additional property. Each Pledgor
hereby authorizes Administrative Agent to attach each Pledge Amendment
to this Agreement and agrees that all Pledged Securities or
Intercompany Debt listed on any Pledge Amendment delivered to
Administrative Agent shall for all purposes hereunder be considered
Pledged Collateral.
(b) VOTING RIGHTS; DISTRIBUTIONS; ETC.
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(i) So long as no Event of Default shall have
occurred and be continuing and Administrative Agent shall not
have notified the Pledgors otherwise:
(A) Each Pledgor shall be entitled to
exercise any and all voting and other consensual
rights pertaining to the Securities Collateral or any
part thereof for any purpose not inconsistent with
the terms or purposes of this Agreement or any other
Credit Document; PROVIDED, HOWEVER, that no Pledgor
shall in any event exercise such rights in any manner
which may have a material adverse effect on the value
of the Pledged Collateral taken as a whole or an
adverse effect on the security intended to be
provided by this Agreement.
(B) Each Pledgor shall be entitled to
receive and retain, and to utilize free and clear of
the Lien of this Agreement, any and all
Distributions, but only if and to the extent made in
accordance with the provisions of the Credit
Agreement; PROVIDED, HOWEVER, that any and all such
Distributions consisting of rights or interests in
the form of securities shall be forthwith delivered
to Administrative Agent to hold as Pledged Collateral
and shall, if received by any Pledgor, be received in
trust for the benefit of Administrative Agent, be
segregated from the other property or funds of such
Pledgor and be forthwith delivered to Administrative
Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).
(C) Administrative Agent shall be deemed
without further action or formality to have granted
to each Pledgor all necessary proxies and consents
relating to voting rights and shall, upon written
request of any Pledgor and at the sole cost and
expense of the Pledgors, from time to time execute
and deliver (or cause to be executed and delivered)
to such Pledgor all such proxies and instruments as
such Pledgor may reasonably request in order to
permit such Pledgor to exercise the voting and other
rights which it is entitled to exercise hereunder and
under the other Credit Documents and to receive the
Distributions which it is authorized to receive and
retain pursuant to SUBSECTION 7(B)(I)(B) hereof.
(ii) Upon the occurrence and during the continuance
of any Event of Default and upon notice by Administrative
Agent to the Pledgors of the suspension of the rights of the
Pledgors under Section 7(b)(i) above :
(A) All rights of each Pledgor to exercise
the voting and other consensual rights it would
otherwise be entitled to exercise pursuant to
SUBSECTION 7(B)(I)(A) hereof shall cease upon notice
by Administrative Agent to such Pledgor, and all such
rights shall thereupon become vested in
Administrative Agent, which shall thereupon have the
sole right to exercise such voting and other
consensual rights.
(B) All rights of each Pledgor to receive
Distributions which it would otherwise be entitled to
receive and retain pursuant to SUBSECTION 7(B)(I)(B)
hereof shall cease and all such rights shall
thereupon become vested in Administrative Agent,
which shall thereupon have the sole right to receive
and hold as Pledged Collateral such Distributions.
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(iii) Each Pledgor shall, at its sole cost and
expense, from time to time execute and deliver to
Administrative Agent appropriate instruments as Administrative
Agent may reasonably request in order to permit Administrative
Agent to exercise the voting and other rights which it may be
entitled to exercise pursuant to SUBSECTION 7(B)(II)(A) hereof
and to receive all Distributions which it may be entitled to
receive under SUBSECTION 7(B)(II)(B) hereof.
(iv) All Distributions which are received by any
Pledgor contrary to the provisions of SUBSECTION 7(B)(II)(B)
hereof shall be received in trust for the benefit of
Administrative Agent, shall be segregated from other funds of
such Pledgor and shall immediately be paid over to
Administrative Agent as Pledged Collateral in the same form as
so received (with any necessary endorsement).
(c) NO NEW SECURITIES. Each Pledgor shall cause each issuer of
the Pledged Securities not to issue any stock or other securities or
equity interests in addition to or in substitution for the Pledged
Securities issued by such issuer, except to such Pledgor.
(d) OPERATIVE AGREEMENTS. Each Pledgor has delivered to
Administrative Agent true, correct and complete copies of the Operative
Agreements. The Operative Agreements are in full force and effect, have
not as of the date hereof been amended or modified, and there is no
existing default by any party thereunder or any event which, with the
giving of notice of passage of time or both, would constitute a default
by any party thereunder. Each Pledgor shall deliver to Administrative
Agent a copy of any notice of default given or received by it under any
Operative Agreement within ten (10) days after such Pledgor gives or
receives such notice. No Pledgor will terminate or agree to terminate
any Operative Agreement or make any amendment or modification to any
Operative Agreement which may have an adverse effect on the value of
the Pledged Interests or the security intended to be provided by this
Agreement.
Section 8. SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY
COLLATERAL.
(a) GRANT OF LICENSE. For the purpose of enabling
Administrative Agent, during the continuance of an Event of Default, to
exercise rights and remedies under SECTION 12 hereof at such time as
Administrative Agent shall be lawfully entitled to exercise such rights
and remedies, and for no other purpose, each Pledgor hereby grants to
Administrative Agent, to the extent assignable, an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to such Pledgor) to use, assign, license or sublicense any
of the Intellectual Property Collateral now owned or hereafter acquired
by such Pledgor, wherever the same may be located, including in such
license reasonable access to all media in which any of the licensed
items may be recorded or stored and to all computer programs used for
the compilation or printout thereof.
(b) REGISTRATIONS. Except pursuant to licenses and other user
agreements entered into by any Pledgor in the ordinary course of
business and licenses between Pledgors, on and as of the date hereof
(i) each Pledgor owns and possesses the right to use, and has done
nothing to authorize or enable any other Person to use, any Patent or
Trademark listed in SCHEDULES III and IV, respectively, and (ii) all
registrations listed in SCHEDULES III and IV are valid and in full
force and effect.
(c) NO VIOLATIONS OR PROCEEDINGS. To each Pledgor's knowledge,
on and as of the date hereof, except as would not result in a Material
Adverse Effect, (i) there is no violation by others of any right of
such Pledgor with respect to any Patent or Trademark listed in
SCHEDULES III and IV annexed
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hereto, respectively, pledged by it under the name of such Pledgor,
except as set forth in such Schedules, (ii) such Pledgor is not
infringing upon any Patent or Trademark of any other Person and (iii)
no proceedings have been instituted or are pending against such Pledgor
or, to such Pledgor's knowledge, threatened, and no claim against such
Pledgor has been received by such Pledgor, alleging any such violation,
except as may be set forth in SCHEDULE III or IV.
(d) [Reserved].
(e) [Reserved].
(f) MODIFICATIONS. Each Pledgor authorizes Administrative
Agent to modify this Agreement by amending SCHEDULES III and IV hereto
to include any future Intellectual Property Collateral of such Pledgor.
(g) APPLICATIONS. Each Pledgor shall file and prosecute
diligently all applications for the Patents, the Trademarks or the
Copyrights now or hereafter pending that would be necessary to the
operation of such Pledgor's business as presently conducted and as
contemplated by the Credit Agreement to which any such applications
pertain, and shall do all acts necessary to preserve and maintain all
rights in the Intellectual Property Collateral necessary to the
operation of such Pledgor's business as presently conducted and as
contemplated by the Credit Agreement. Any and all costs and expenses
incurred in connection with any such actions shall be borne by the
Pledgors. No Pledgor shall abandon any right to file a Patent,
Trademark or Copyright application, or any pending Patent, Trademark or
Copyright application or any Patent, Trademark or Copyright necessary
for the operation of such Pledgor's business as presently conducted and
as contemplated by the Credit Agreement without the consent of
Administrative Agent.
(h) LITIGATION.
(i) Unless there shall occur and be continuing any
Event of Default, each Pledgor shall have the right to
commence and prosecute in its own name, as the party in
interest, for its own benefit and at the sole cost and expense
of the Pledgors, such applications for protection of the
Intellectual Property Collateral and suits, proceedings or
other actions for infringement, counterfeiting, unfair
competition, dilution or other damage as are in its reasonable
business judgment necessary to protect the Intellectual
Property Collateral. Each Pledgor shall promptly notify
Administrative Agent in writing as to the commencement and
prosecution of any such actions, or threat thereof relating to
the Intellectual Property Collateral, and shall provide to
Administrative Agent such information with respect thereto as
may be reasonably requested by Administrative Agent.
(ii) Upon the occurrence and during the continuance
of any Event of Default, Administrative Agent shall have the
right but shall in no way be obligated to file applications
for protection of the Intellectual Property Collateral and/or
bring suit in the name of any Pledgor, Administrative Agent or
the Secured Parties to enforce the Intellectual Property
Collateral and any license thereunder. In the event of such
suit, each Pledgor shall, at the written request of
Administrative Agent, do any and all lawful acts and execute
any and all documents requested by Administrative Agent in aid
of such enforcement. In the event that Administrative Agent
shall elect not to bring suit to enforce the Intellectual
Property Collateral, each Pledgor agrees, at the request of
Administrative Agent, to use all reasonable measures,
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whether by action, suit, proceeding or otherwise, to prevent
the infringement, counterfeiting or other diminution in value
of any of the Intellectual Property Collateral by others and
for that purpose agrees to diligently maintain any action,
suit or proceeding against any person so infringing necessary
to prevent such infringement unless such Pledgor has
determined that such Intellectual Property Collateral that is
the subject of any pending or contemplated infringement or
enforcement action or proceeding does not contain or represent
any value or utility (other than of an immaterial nature),
consistent with prudent business practice.
Section 9. SPECIAL PROVISIONS CONCERNING FINANCIAL ACCOUNTS.
Each Pledgor shall comply with the covenants and make the representations and
warranties contained in clauses (a) through (d) below after the occurrence and
during the continuance of an Event of Default. Each Pledgor shall comply with
the covenants and make the representations and warranties contained in clauses
(e) through (h) below from and after the date hereof.
(a) FINANCIAL ACCOUNTS. Each Pledgor shall notify each
Financial Intermediary that any Financial Account Collateral maintained
with such Financial Intermediary by such Pledgor is under the exclusive
dominion and control of Administrative Agent and that all moneys,
financial assets, checks, drafts, securities, instruments and other
property deposited with such Financial Intermediary are to be held by
such Financial Intermediary for the benefit of Administrative Agent.
Each Pledgor shall, within one Business Day of actual receipt thereof,
deposit any payment received by it into a financial account that is
subject to a financial account consent agreement substantially in the
form of EXHIBIT 2 annexed hereto (each such agreement, a "FINANCIAL
ACCOUNT CONSENT AGREEMENT" and each financial account subject to a
Financial Account Consent Agreement, an "APPROVED FINANCIAL ACCOUNT")
or into the Concentration Account referred to in SUBSECTION (B) below.
In addition, all Persons that owe money to any Pledgor in excess of
$100,000 in the aggregate shall be directed to remit their payments to
an Approved Financial account. If any Pledgor is unable to obtain a
Financial Account Consent Agreement from any Financial Intermediary,
then such Pledgor shall terminate all financial accounts maintained
with such Financial Intermediary and transfer all moneys, financial
assets, checks, drafts, securities, instruments and other property
deposited therein to another Approved Financial Account. Each Pledgor
hereby represents and warrants as of the date that it is required to
comply with the covenants in this Section 9 that it does not maintain,
and will not after such date maintain, any other financial account with
any Financial Intermediary or any other banking or financial
institution other than the accounts provided to Adminstrative Agent as
of such date; PROVIDED, HOWEVER, that any Pledgor may establish and
maintain additional financial accounts with any Financial Intermediary
or any new banking or financial institution if (i) in the case of an
existing Financial Intermediary, such Pledgor, such Financial
Intermediary and Administrative Agent shall have entered into an
amendment to the relevant Financial Account Consent Agreement to
include such new Financial Account under such amendment to be in form
and substance satisfactory to Administrative Agent, and (ii) in the
case of a new banking or financial institution, (A) the applicable
Pledgor shall have given Administrative Agent 30 days' prior written
notice of its intention to establish a new financial account with a new
banking or financial institution, (B) such new banking or financial
institution shall be reasonably acceptable to Administrative Agent and
(C) such new banking or financial institution shall enter into a
Financial Account Consent Agreement. Upon compliance with the
provisions of CLAUSE (II) of the immediately preceding sentence, such
new banking or financial institution shall constitute a "FINANCIAL
Intermediary" hereunder.
(b) CONCENTRATION ACCOUNT. The Pledgors will establish a
concentration account or sub-account (the "CONCENTRATION ACCOUNT") with
Administrative Agent into which all Financial Account Collateral of the
Pledgors in excess of $1.0 million in the aggregate shall be deposited
by 12:00 p.m.
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New York time on each Business Day, subject to the provisions of
SUBSECTION 9(C). Each Pledgor hereby agrees that the Concentration
Account is under the exclusive dominion and control of Administrative
Agent and all moneys, instruments, securities and other property
received in the Concentration Account are to be held for the benefit of
Administrative Agent on behalf of the Secured Parties. Each Pledgor
hereby transfers to Administrative Agent the exclusive dominion and
control over the Concentration Account. Notwithstanding the foregoing,
Administrative Agent shall be permitted to designate a Lender that has
executed and delivered a Financial Account Consent Agreement and has
agreed to be a collateral sub-agent for Administrative Agent to be the
banking or financial institution for the Concentration Account.
(c) DISPOSITIONS FROM CONCENTRATION ACCOUNT. Until an Event of
Default shall have occurred and be continuing, each Pledgor is hereby
authorized by Administrative Agent to direct on any Business Day the
disposition of any and all moneys, financial assets, checks, drafts,
securities, instruments and other property deposited in the
Concentration Account into one or more Approved Financial Accounts for
use by such Pledgor in a manner permitted by the Credit Agreement.
Administrative Agent shall make such disposition by 2:00 p.m. New York
time on each such date.
(d) REVOCATION OF WITHDRAWAL RIGHT. Upon the occurrence and
during the continuance of any Event of Default, the authorization of
the Pledgors under SUBSECTION 9(C) shall be revoked and all deposits
maintained in the Concentration Account or with any Financial
Intermediary, and any additional moneys, financial assets, checks,
drafts, securities, instruments and other property subsequently
maintained with any Financial Intermediary, shall be transferred to a
collateral account or sub-account maintained by Administrative Agent
(or a Lender that agrees to be a collateral sub-agent for
Administrative Agent) in its name as Administrative Agent for the
Secured Parties (the "COLLATERAL Account"). All such deposits in any
such Collateral Account shall constitute "Pledged Collateral" for all
purposes of this Agreement and shall be held by Administrative Agent as
Pledged Collateral for the Secured Obligations or applied to the
payment of the Secured Obligations in accordance with SECTION 13 of
this Agreement. The costs and expenses (including attorney's fees) of
collection, whether incurred by any Pledgor or Administrative Agent (or
any sub-agent), shall be borne by the Pledgors.
(e) DEPOSITS TO COLLATERAL ACCOUNT. To the extent required by
Section 2.10(a) of the Credit Agreement, each Pledgor shall deposit
into the Collateral Account from time to time (i) the cash proceeds of
any of the Pledged Collateral or any Real Property that is subject to a
Mortgage (including pursuant to any disposition thereof), (ii) the cash
proceeds of any Casualty Event with respect to any Pledged Collateral
or any Real Property that is subject to a Mortgage (including proceeds
of casualty events and proceeds of insurance covering the Pledged
Collateral or any Real Property that is subject to a Mortgage), (iii)
any cash in respect of any Pledged Collateral which Administrative
Agent is entitled to pursuant to SUBSECTION 6(G) or SUBSECTION 7(B)
hereof and (iv) any additional amounts that such Pledgor desires to
pledge to Administrative Agent for the benefit of the Secured Parties
as additional collateral security hereunder or which such Pledgor is
required to pledge as additional collateral security hereunder pursuant
to the Credit Documents.
(f) APPLICATION OF AMOUNTS IN COLLATERAL ACCOUNT. The balance
from time to time in the Collateral Account shall constitute part of
the Pledged Collateral hereunder and shall not constitute payment of
the Secured Obligations until applied as hereinafter provided. So long
as no Event of Default has occurred and is continuing or will result
therefrom, Administrative Agent shall remit the collected balance
outstanding to the credit of the Collateral Account to or upon the
order of the respective Pledgor, in periodic installments, if
applicable, within two Business Days of (i) submission of reason-
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able evidence that such amount is to be applied as permitted by SECTION
2.10(A) of the Credit Agreement and (ii) with respect to any cash
proceeds on deposit in the Collateral Account relating to any Real
Property that is subject to a Mortgage, satisfaction of the conditions
relating thereto set forth in such Mortgage. At any time following the
occurrence and during the continuance of an Event of Default, however,
Administrative Agent may (and, if instructed by the Lenders as
specified in the Credit Agreement, shall) in its (or their) discretion
apply or cause to be applied (subject to collection) the balance from
time to time outstanding to the credit of the Collateral Account to the
payment of the Secured Obligations in the manner specified in SECTION
13 hereof subject, however, in the case of amounts deposited in the
Letter of Credit Liabilities Sub-Account, to the provisions of
SUBSECTION 9(H) hereof). The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided
herein.
(g) INVESTMENT OF BALANCE IN COLLATERAL ACCOUNT. Amounts on
deposit in the Collateral Account shall be invested from time to time
in such Cash Equivalents as the respective Pledgor (or, after the
occurrence and during the continuance of an Event of Default,
Administrative Agent) shall determine, which Cash Equivalents shall be
held in the name and be under the control of Administrative Agent (or
any sub-agent); PROVIDED, HOWEVER, that at any time after the
occurrence and during the continuance of an Event of Default,
Administrative Agent, if instructed by the Lenders pursuant to the
exercise of their remedies in accordance with Section 10 of the Credit
Agreement, shall at any time and from time to time elect to liquidate
any such Cash Equivalents and to apply or cause to be applied the
proceeds thereof to the payment of the Secured Obligations in the
manner specified in SECTION 13 hereof.
(h) COVER FOR LETTER OF CREDIT LIABILITIES. Amounts deposited
into the Collateral Account as cover for liabilities in respect of
Letters of Credit under the Credit Agreement pursuant to SECTION 2
thereof shall be held by Administrative Agent in a separate sub-account
designated as the "Letter of Credit Liabilities Sub-Account" (the
"LETTER OF CREDIT LIABILITY SUB-ACCOUNT") and, notwithstanding any
other provision of this Agreement to the contrary, all amounts held in
the Letter of Credit Liabilities Sub-Account shall constitute
collateral security FIRST for the liabilities in respect of Letters of
Credit outstanding from time to time and SECOND as collateral security
for the other Secured Obligations hereunder until such time as all
Letters of Credit shall have been terminated and all of the liabilities
in respect of Letters of Credit have been paid in full.
Section 10. TRANSFERS AND OTHER LIENS. No Pledgor shall (a)
sell, convey, assign or otherwise dispose of, or grant any option with respect
to, any of the Pledged Collateral pledged by it hereunder except as permitted by
the Credit Agreement, and (b) create or permit to exist any Lien upon or with
respect to any of the Pledged Collateral pledged by it hereunder other than (i)
Prior Liens, (ii) the Lien and security interest granted to Administrative Agent
under this Agreement and (iii) Subordinate Liens.
Section 11. REASONABLE CARE. Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Pledged Collateral in its possession or the possession of its agents if such
Pledged Collateral is accorded treatment substantially equivalent to that which
Administrative Agent accords its own property consisting of similar instruments
or interests, it being understood that neither Administrative Agent nor any of
the Secured Parties shall have responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Securities Collateral, whether or not
Administrative Agent or any other Secured Party has or is deemed to have
knowledge of such matters, or (ii) taking any necessary steps to preserve rights
against any Person with respect to any Pledged Collateral. Administrative Agent
shall also account for any monies actually received by it.
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Section 12. REMEDIES UPON DEFAULT; OBTAINING THE PLEDGED
COLLATERAL UPON EVENT OF DEFAULT.
(a) If any Event of Default shall have occurred and be
continuing and the Lenders shall have exercised their remedies in
accordance with Section 10 of the Credit Agreement, then and in every
such case, Administrative Agent may:
(i) Personally, or by agents or attorneys,
immediately take possession of the Pledged Collateral or any
part thereof, from any Pledgor or any other Person who then
has possession of any part thereof with or without notice or
process of law, and for that purpose may enter upon any
Pledgor's premises where any of the Pledged Collateral is
located, remove such Pledged Collateral, remain present at
such premises to receive copies of all communications and
remittances relating to the Pledged Collateral and use in
connection with such removal and possession any and all
services, supplies, aids and other facilities of any Pledgor;
(ii) Demand, ▇▇▇ for, collect or receive any money or
property at any time payable or receivable in respect of the
Pledged Collateral, including, without limitation, instructing
the obligor or obligors on any agreement, instrument or other
obligation (including, without limitation, the Receivables and
Contracts) constituting part of the Pledged Collateral to make
any payment required by the terms of such instrument or
agreement directly to Administrative Agent, and in connection
with any of the foregoing, compromising, settling, extending
the time for payment and making other modifications with
respect thereto; PROVIDED, HOWEVER, that in the event that any
such payments are made directly to any Pledgor, prior to
receipt by any such obligor of such instruction, such Pledgor
shall segregate all amounts received pursuant thereto in a
separate account and pay the same promptly to Administrative
Agent;
(iii) Sell, assign, grant a license to use or
otherwise liquidate, or direct any Pledgor to sell, assign,
grant a license to use or otherwise liquidate, any or all
investments made in whole or in part with the Pledged
Collateral or any part thereof, and take possession of the
proceeds of any such sale, assignment, license or liquidation;
(iv) Take possession of the Pledged Collateral or any
part thereof, by directing any Pledgor in writing to deliver
the same to Administrative Agent at any place or places so
designated by Administrative Agent, in which event such
Pledgor shall at its own expense: (A) forthwith cause the same
to be moved to the place or places designated by
Administrative Agent and there delivered to Administrative
Agent, (B) store and keep any Pledged Collateral so delivered
to Administrative Agent at such place or places pending
further action by Administrative Agent; and (C) while the
Pledged Collateral shall be so stored and kept, provide such
security and maintenance services as shall be necessary to
protect the same and to preserve and maintain them in good
condition. Each Pledgor's obligation to deliver the Pledged
Collateral is of the essence of this Agreement;
(v) Withdraw all moneys, instruments, securities and
other property in any financial account of any Pledgor for
application to the Secured Obligations as provided in SECTION
13 hereof;
(vi) Retain and apply the Distributions to the
Secured Obligations as provided in SECTION 13 hereof; and
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(vii) Exercise any and all rights as beneficial and
legal owner of the Pledged Collateral, including, without
limitation, perfecting assignment of and exercising any and
all voting, consensual and other rights and powers with
respect to any Pledged Collateral.
Upon application to a court of equity having jurisdiction,
Administrative Agent shall be entitled to a decree requiring specific
performance by any Pledgor of such obligation.
(b) REMEDIES; DISPOSITION OF THE PLEDGED COLLATERAL.
(i) Upon the occurrence and during the continuance of
any Event of Default and the exercise by the Lenders of their
remedies in accordance with Section 10 of the Credit
Agreement, Administrative Agent may from time to time exercise
in respect of the Pledged Collateral, in addition to the other
rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on
default under the UCC, and Administrative Agent may also in
its sole discretion, without notice except as specified below,
sell, assign or grant a license to use the Pledged Collateral
or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of
Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and at such price or prices and
upon such other terms as Administrative Agent may deem
commercially reasonable. Administrative Agent or any other
Secured Party or any of their respective Affiliates may be the
purchaser, licensee, assignee or recipient of any or all of
the Pledged Collateral at any such sale and shall be entitled,
for the purpose of bidding and making settlement or payment of
the purchase price for all or any portion of the Pledged
Collateral sold, assigned or licensed at such sale, to use and
apply any of the Secured Obligations owed to such Person as a
credit on account of the purchase price of any Pledged
Collateral payable by such Person at such sale. Each
purchaser, assignee, licensee or recipient at any such sale
shall acquire the property sold, assigned or licensed
absolutely free from any claim or right on the part of any
Pledgor, and each Pledgor hereby waives, to the fullest extent
permitted by law, all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future
have under any rule of law or statute now existing or
hereafter enacted. Administrative Agent shall not be obligated
to make any sale of Pledged Collateral regardless of notice of
sale having been given. Administrative Agent may adjourn any
public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was
so adjourned. Each Pledgor hereby waives, to the fullest
extent permitted by law, any claims against Administrative
Agent arising by reason of the fact that the price at which
any Pledged Collateral may have been sold, assigned or
licensed at such a private sale was less than the price which
might have been obtained at a public sale, even if
Administrative Agent accepts the first offer received and does
not offer such Pledged Collateral to more than one offeree.
(ii) Each Pledgor acknowledges and agrees that, to
the extent notice of sale shall be required by law, ten days'
notice to such Pledgor of the time and place of any public
sale or of the time after which any private sale or other
intended disposition is to take place shall be commercially
reasonable notification of such matters. No notification need
be given to any Pledgor if it has signed, after the occurrence
of an Event of Default, a statement renouncing or modifying
any right to notification of sale or other intended
disposition.
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(c) WAIVER OF NOTICE AND CLAIMS. Each Pledgor hereby waives,
to the fullest extent permitted by applicable law, notice or judicial
hearing in connection with Administrative Agent's taking possession or
Administrative Agent's disposition of any of the Pledged Collateral,
including, without limitation, any and all prior notice and hearing for
any prejudgment remedy or remedies and any such right which such
Pledgor would otherwise have under law, and each Pledgor hereby further
waives, to the fullest extent permitted by applicable law: (i) all
damages occasioned by such taking of possession, (ii) all other
requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of Administrative Agent's
rights hereunder, and (iii) all rights of redemption, appraisal,
valuation, stay, extension or moratorium now or hereafter in force
under any applicable law. Administrative Agent shall not be liable for
any incorrect or improper payment made pursuant to this SECTION 12 in
the absence of gross negligence or willful misconduct. Any sale of, or
the grant of options to purchase, or any other realization upon, any
Pledged Collateral shall operate to divest all right, title, interest,
claim and demand, either at law or in equity, of the applicable Pledgor
therein and thereto, and shall be a perpetual bar both at law and in
equity against such Pledgor and against any and all Persons claiming or
attempting to claim the Pledged Collateral so sold, optioned or
realized upon, or any part thereof, from, through or under such
Pledgor.
(d) CERTAIN SALES OF PLEDGED COLLATERAL. Each Pledgor
recognizes that, by reason of certain prohibitions contained in law,
rules, regulations or orders of any foreign Governmental Authority,
Administrative Agent may be compelled, with respect to any sale of all
or any part of the Pledged Collateral, to limit purchasers to those who
meet the requirements of such foreign Governmental Authority. Each
Pledgor acknowledges that any such sales may be at prices and on terms
less favorable to Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such restricted sale shall be deemed to
have been made in a commercially reasonable manner and that, except as
may be required by applicable law, Administrative Agent shall have no
obligation to engage in public sales.
(e) Each Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and applicable state securities laws, Administrative
Agent may be compelled, with respect to any sale of all or any part of
the Securities Collateral, to limit purchasers to Persons who will
agree, among other things, to acquire such Securities Collateral for
their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor acknowledges that any such
private sales may be at prices and on terms less favorable to
Administrative Agent than those obtainable through a public sale
without such restrictions (including, without limitation, a public
offering made pursuant to a registration statement under the Securities
Act), and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially
reasonable manner and that Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the
sale of any Securities Collateral for the period of time necessary to
permit the issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under applicable
state securities laws, even if such issuer would agree to do so.
(f) Notwithstanding the foregoing, each Pledgor shall, upon
the occurrence and during the continuance of any Event of Default, at
the request of Administrative Agent, for the benefit of Administrative
Agent, cause any registration, qualification under or compliance with
any federal or state securities law or laws to be effected with respect
to all or any part of the Securities Collateral as soon as practicable
and at the sole cost and expense of the Pledgors. Each Pledgor will use
its best efforts to cause such registration to be effected (and be kept
effective) and will use its best efforts to cause such
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qualification and compliance to be effected (and be kept effective) as
may be so requested and as would permit or facilitate the sale and
distribution of such Securities Collateral, including, without
limitation, registration under the Securities Act (or any similar
statute then in effect), appropriate qualifications under applicable
blue sky or other state securities laws and appropriate compliance with
any other government requirements. Each Pledgor shall cause
Administrative Agent to be kept advised in writing as to the progress
of each such registration, qualification or compliance and as to the
completion thereof, shall furnish to Administrative Agent such number
of prospectuses, offering circulars or other documents incident thereto
as Administrative Agent from time to time may request, and shall
indemnify and shall cause the issuer of the Securities Collateral to
indemnify Administrative Agent and all others participating in the
distribution of such Securities Collateral against all claims, losses,
damages and liabilities caused by any untrue statement (or alleged
untrue statement) of a material fact contained therein (or in any
related registration statement, notification or the like) or by any
omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(g) If Administrative Agent determines to exercise its right
to sell any or all of the Securities Collateral, upon written request,
the applicable Pledgor shall from time to time furnish to
Administrative Agent all such information as Administrative Agent may
request in order to determine the number of securities included in the
Securities Collateral which may be sold by Administrative Agent as
exempt transactions under the Securities Act and the rules of the
Securities and Exchange Commission thereunder, as the same are from
time to time in effect.
Section 13. APPLICATION OF PROCEEDS. The proceeds received by
Administrative Agent in respect of any sale of, collection from or other
realization upon all or any part of the Pledged Collateral pursuant to the
exercise by Administrative Agent of its remedies as a secured creditor as
provided in SECTION 12 hereof shall be applied, together with any other sums
then held by Administrative Agent pursuant to this Agreement, promptly by
Administrative Agent as follows:
FIRST, to the payment of all costs and expenses, fees,
commissions and taxes of such sale, collection or other realization,
including, without limitation, of Administrative Agent and its agents
and counsel, and all expenses, liabilities and advances made or
incurred by Administrative Agent in connection therewith, together with
interest on each such amount from the date that is one Business Day
after the date that Administrative Agent notifies the Pledgors in
writing of the incurrence of such amount until the date of payment at
the highest rate then in effect under the Credit Agreement;
SECOND, to the payment of all other costs and expenses of such
sale, collection or other realization, including, without limitation,
of the Lenders and their agents and counsel and all costs, liabilities
and advances made or incurred by the Lenders in connection therewith,
together with interest on each such amount from the date that is one
Business Day after the date that Administrative Agent notifies the
Pledgors in writing of the incurrence of such amount until the date of
payment at the highest rate then in effect under the Credit Agreement;
THIRD, without duplication of amounts applied pursuant to
CLAUSES FIRST and SECOND above, to the payment in full in cash, PRO
RATA, of (i) interest, principal and other amounts constituting Secured
Obligations (other than Swap Obligations) in accordance with the terms
of the Credit Agreement and (ii) the Swap Obligations in accordance
with the terms of the Swap Contracts; and
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FOURTH, the balance, if any, to the Person lawfully entitled
thereto (including the Pledgors or their respective successors or
assigns).
In the event that any such proceeds are insufficient to pay in
full the items described in CLAUSES FIRST through THIRD of this SECTION 13, the
Pledgors shall remain liable for any deficiency.
Section 14. EXPENSES. Each Pledgor will upon demand pay to
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and expenses of its counsel and the reasonable fees and
expenses of any experts and agents which Administrative Agent may incur in
connection with (a) the collection of the Secured Obligations, (b) the
enforcement and administration of this Agreement, (c) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (d) the exercise or enforcement of any of the rights
of Administrative Agent or any Secured Party hereunder or (e) the failure by any
Pledgor to perform or observe any of the provisions hereof. All amounts payable
by any Pledgor under this SECTION 14 shall be due upon demand, with interest at
the highest rate then in effect under the Credit Agreement from the date that is
one Business Day after the date that Administrative Agent notifies the Pledgors
in writing of the incurrence of such amount until the date of payment . Each
Pledgor's obligations under this SECTION 14 shall survive the termination of
this Agreement and the discharge of such Pledgor's other obligations hereunder.
Section 15. NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure on the part of Administrative Agent to
exercise, no course of dealing with respect to, and no delay on the
part of Administrative Agent in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other
right, power or remedy; nor shall Administrative Agent be required to
look first to, enforce or exhaust any other security, collateral or
guaranties. The remedies herein provided are cumulative and are not
exclusive of any remedies provided by law.
(b) In the event that Administrative Agent shall have
instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to Administrative Agent, then and
in every such case, the Pledgors, Administrative Agent and each other
Secured Party shall be restored to their respective former positions
and rights hereunder with respect to the Pledged Collateral, and all
rights, remedies and powers of Administrative Agent and the other
Secured Parties shall continue as if no such proceeding had been
instituted.
Section 16. ADMINISTRATIVE AGENT. Administrative Agent has
been appointed as Administrative Agent pursuant to the Credit Agreement. The
actions of Administrative Agent hereunder are subject to the provisions of the
Credit Agreement. Administrative Agent shall have the right hereunder to make
demands, to give notices, to exercise or refrain from exercising any rights, and
to take or refrain from taking action (including, without limitation, the
release or substitution of Pledged Collateral), in accordance with this
Agreement and the Credit Agreement. Administrative Agent may employ agents and
attorneys-in-fact in connection herewith and shall not be liable for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith. Administrative Agent may resign and a successor Administrative
Agent may be appointed in the manner provided in the Credit Agreement. Upon the
acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent under this Agree-
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ment, and the retiring Administrative Agent shall thereupon be discharged from
its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation, the provisions of this Agreement shall inure
to its benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Administrative Agent.
Section 17. ADMINISTRATIVE AGENT MAY PERFORM; ADMINISTRATIVE
AGENT APPOINTED Attorney-in-Fact. If any Pledgor shall fail to do any act or
thing that it has covenanted to do hereunder or if any warranty on the part of
any Pledgor contained herein shall be breached, Administrative Agent may (but
shall not be obligated to) do the same or cause it to be done or remedy any such
breach, and may expend funds for such purpose. Each Pledgor hereby appoints
Administrative Agent its attorney-in-fact, with full authority in the place and
stead of such Pledgor and in the name of such Pledgor, or otherwise, from time
to time in Administrative Agent's discretion to take any action and to execute
any instrument consistent with the terms of this Agreement and the other Credit
Documents which Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement. The foregoing grant of authority is a
power of attorney coupled with an interest and such appointment shall be
irrevocable for the term of this Agreement. Each Pledgor hereby ratifies all
that such attorney shall lawfully do or cause to be done by virtue hereof.
Section 18. [Reserved].
Section 19. MODIFICATION IN WRITING. No amendment,
modification, supplement, termination or waiver of or to any provision of this
Agreement, nor consent to any departure by any Pledgor therefrom, shall be
effective unless the same shall be made in accordance with the terms of the
Credit Agreement and unless in writing and signed by Administrative Agent. Any
amendment, modification or supplement of or to any provision of this Agreement,
any waiver of any provision of this Agreement and any consent to any departure
by any Pledgor from the terms of any provision of this Agreement shall be
effective only in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this Agreement or
any other Credit Document, no notice to or demand on any Pledgor in any case
shall entitle any Pledgor to any other or further notice or demand in similar or
other circumstances.
Section 20. TERMINATION; RELEASE. When all the Secured
Obligations have been paid in full and the Commitments of the Lenders to make
any Loan or to issue any Letter of Credit under the Credit Agreement shall have
expired or been sooner terminated, this Agreement shall terminate and all rights
in the Pledged Collateral shall revert to the Pledgors. Upon termination of this
Agreement or any transfer or release of Pledged Collateral in accordance with
the provisions of the Credit Agreement, Administrative Agent shall, at the sole
cost and expense of the Pledgors, forthwith assign, transfer and deliver to
Pledgor, against receipt and without recourse to or warranty by Administrative
Agent (except as to Administrative Agent's actions), such of the Pledged
Collateral to be released (in the case of a release) as may be in possession of
Administrative Agent and as shall not have been sold or otherwise applied
pursuant to the terms hereof, and, with respect to any other Pledged Collateral,
proper documents and instruments (including UCC-3 termination statements or
releases) acknowledging the termination of this Agreement or the release of such
Pledged Collateral, as the case may be. A Pledgor shall be automatically
released from it obligations on and as of such date that such Pledgor is no
longer a Guarantor. Pledged Collateral comprising capital stock or other
ownership interest in a subsidiary of a Pledgor shall be automatically released
in the event that the capital stock or other ownership interest of such
subsidiary of a Pledgor shall be sold or otherwise transferred to a Qualified
Joint Venture in accordance with the terms of the Credit Agreement.
Section 21. NOTICES. Unless otherwise provided herein or in
the Credit Agreement, any notice or other communication herein required or
permitted to be given shall be given in the manner set forth in the
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Credit Agreement, as to any Pledgor, addressed to it at the address of Borrower
set forth in the Credit Agreement and as to Administrative Agent, addressed to
it at the address set forth in the Credit Agreement, or in each case at such
other address as shall be designated by such party in a written notice to the
other party complying as to delivery with the terms of this SECTION 21;
PROVIDED, HOWEVER, that notices to Administrative Agent shall not be effective
until received by Administrative Agent.
Section 22. CONTINUING SECURITY INTEREST; ASSIGNMENT. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) be binding upon the Pledgors, their respective successors and
assigns and (ii) inure, together with the rights and remedies of Administrative
Agent hereunder, to the benefit of Administrative Agent and the other Secured
Parties and each of their respective successors, transferees and assigns. No
other Persons (including, without limitation, any other creditor of any Pledgor)
shall have any interest herein or any right or benefit with respect hereto.
Without limiting the generality of the foregoing clause (ii), any Lender may
assign or otherwise transfer any indebtedness held by it secured by this
Agreement to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender, herein
or otherwise, subject however, to the provisions of the Credit Agreement and any
applicable Swap Contract. Each Affiliate of Borrower which from time to time
after the initial date of this Agreement is required under the Credit Agreement
to pledge any assets to Administrative Agent for the benefit of the Secured
Parties may become a party hereto upon execution and delivery to Administrative
Agent of a joinder agreement substantially in the form attached hereto as
EXHIBIT 4, and upon such execution and delivery shall be deemed to be a
"GUARANTOR" and a "PLEDGOR" for all purposes hereunder.
Section 23. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR PLEDGED COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
Section 24. CONSENT TO JURISDICTION AND SERVICE OF PROCESS;
WAIVER OF JURY TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE SUPREME COURT OF THE STATE OF
NEW YORK SITTING IN NEW YORK COUNTY, THE COURTS OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK AND APPELLATE COURTS OF ANY THEREOF, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PLEDGOR ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH
PLEDGOR AGREES THAT SERVICE OF PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO BORROWER AT ITS ADDRESS SET FORTH IN
THE CREDIT AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH ADMINISTRATIVE AGENT
SHALL HAVE BEEN NOTIFIED PURSUANT THERETO. IF ANY AGENT APPOINTED BY ANY
ASSIGNOR REFUSES TO ACCEPT SERVICE, SUCH ASSIGNOR HEREBY AGREES THAT SERVICE
UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF ADMINISTRATIVE AGENT TO BRING PROCEEDINGS AGAINST ANY PLEDGOR IN
THE COURTS OF ANY OTHER JURISDICTION. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
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OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 25. SEVERABILITY OF PROVISIONS. 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 or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 26. EXECUTION IN COUNTERPARTS. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
Section 27. HEADINGS. The Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
Section 28. OBLIGATIONS ABSOLUTE. All obligations of each
Pledgor hereunder shall be absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Pledgor or
any other Obligor;
(b) any lack of validity or enforceability of the Credit
Agreement, any Secured Swap Contract, any Letter of Credit or any other
Credit Document, or any other agreement or instrument relating thereto;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any Secured Swap Contract, any Letter of Credit or
any other Credit Document, or any other agreement or instrument
relating thereto;
(d) any pledge, exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of or consent
to any departure from any guarantee, for all or any of the Secured
Obligations;
(e) any exercise, non-exercise or waiver of any right, remedy,
power or privilege under or in respect of this Agreement, any Secured
Swap Contract or any other Credit Document except as specifically set
forth in a waiver granted pursuant to the provisions of SECTION 19
hereof; or
(f) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, any Pledgor.
Section 29. ADMINISTRATIVE AGENT'S RIGHT TO SEVER
INDEBTEDNESS.
(a) Each Pledgor acknowledges that (i) the Pledged Collateral
does not constitute the sole source of security for the payment and
performance of the Secured Obligations and that the Secured Obligations
may also be secured by other types of property of the Pledgors in other
jurisdictions (all such property, collectively, the "COLLATERAL"), (ii)
the number of such jurisdictions and the nature of the
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transaction of which this instrument is a part are such that it would
have been impracticable for the parties to allocate to each item of
Collateral a specific loan amount and to execute in respect of such
item a separate credit agreement and (iii) each Pledgor intends that
Administrative Agent have the same rights with respect to the Pledged
Collateral, in any judicial proceeding relating to the exercise of any
right or remedy hereunder or otherwise, that Administrative Agent would
have had if each item of Collateral had been pledged or encumbered
pursuant to a separate credit agreement and security instrument. In
furtherance of such intent, each Pledgor agrees to the greatest extent
permitted by law that Administrative Agent may at any time by notice
(an "ALLOCATION NOTICE") to such Pledgor after the occurrence and
during the continuance of an Event of Default allocate a portion of the
Secured Obligations (the "ALLOCATED INDEBTEDNESS") to all or a
specified portion of the Pledged Collateral and sever from the
remaining Secured Obligations the Allocated Indebtedness. From and
after the giving of an Allocation Notice with respect to any of the
Pledged Collateral, the Secured Obligations hereunder shall be limited
to the extent set forth in the Allocation Notice and (as so limited)
shall, for all purposes, be construed as a separate credit obligation
of such Pledgor unrelated to the other transactions contemplated by the
Credit Agreement, any Swap Contract, any other Credit Document or any
document related to any thereof. To the extent that the proceeds of any
judicial proceeding relating to the exercise of any right or remedy
hereunder of the Pledged Collateral shall exceed the Allocated
Indebtedness, such proceeds shall belong to such Pledgor and shall not
be available hereunder to satisfy any Secured Obligations of such
Pledgor other than the Allocated Indebtedness. In any action or
proceeding to exercise any right or remedy under this Agreement which
is commenced after the giving by Administrative Agent of an Allocation
Notice, the Allocation Notice shall be conclusive proof of the limits
of the Secured Obligations hereby secured, and such Pledgor may
introduce, by way of defense or counterclaim, evidence thereof in any
such action or proceeding. Notwithstanding any provision of this
SECTION 29, the proceeds received by Administrative Agent pursuant to
this Agreement shall be applied by Administrative Agent in accordance
with the provisions of SECTION 13 hereof.
(b) Each Pledgor hereby waives to the greatest extent
permitted under law the right to a discharge of any of the Secured
Obligations under any statute or rule of law now or hereafter in effect
which provides that the exercise of any particular right or remedy as
provided for herein (by judicial proceedings or otherwise) constitutes
the exclusive means for satisfaction of the Secured Obligations or
which makes unavailable any further judgment or any other right or
remedy provided for herein because Administrative Agent elected to
proceed with the exercise of such initial right or remedy or because of
any failure by Administrative Agent to comply with laws that prescribe
conditions to the entitlement to such subsequent judgment or the
availability of such subsequent right or remedy. In the event that,
notwithstanding the foregoing waiver, any court shall for any reason
hold that such subsequent judgment or action is not available to
Administrative Agent, no Pledgor shall (i) introduce in any other
jurisdiction any judgment so holding as a defense to enforcement
against such Pledgor of any remedy in the Credit Agreement, any Swap
Contract or any other Credit Document or (ii) seek to have such
judgment recognized or entered in any other jurisdiction, and any such
judgment shall in all events be limited in application only to the
state or jurisdiction where rendered and only with respect to the
collateral referred to in such judgment.
(c) In the event any instrument in addition to the Allocation
Notice is necessary to effectuate the provisions of this SECTION 29,
including, without limitation, any amendment to this Agreement, any
substitute promissory note or affidavit or certificate of any kind,
Administrative Agent may execute and deliver such instrument as the
attorney-in-fact of any Pledgor. Such power of attorney is coupled with
an interest and is irrevocable.
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(d) Notwithstanding anything set forth herein to the contrary,
the provisions of this SECTION 29 shall be effective only to the
maximum extent permitted by law.
Section 30. FUTURE ADVANCES. This Agreement shall secure the
payment of any amounts advanced from time to time pursuant to the Credit
Agreement.
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IN WITNESS WHEREOF, the Pledgors and Administrative Agent have
caused this Agreement to be duly executed and delivered by their duly authorized
officers as of the date first above written.
QUEST DIAGNOSTICS INCORPORATED,
as Borrower and Pledgor
By:
----------------------------------
Name:
Title:
GUARANTORS:
SBCL, Inc. (DE)
SmithKline ▇▇▇▇▇▇▇ Clinical Laboratories,
Inc. (DE)
Quest Diagnostics Incorporated (CA)
Quest Holdings Incorporated (MD)
Quest Diagnostics Incorporated (MD)
Quest Holdings Incorporated (MI)
Quest Diagnostics LLC (IL)
Quest Diagnostics Incorporated (MI)
Quest Diagnostics Incorporated (CT)
Quest Diagnostics Incorporated (MA)
Quest Diagnostics of Pennsylvania Inc. (DE)
Quest Diagnostics Incorporated (OH)
MetWest Inc. (DE)
▇▇▇▇▇▇▇ Institute Diagnostics (CA)
DPD Holdings, Inc. (DE)
Diagnostics Reference Services Inc. (MD)
Laboratory Holding Incorporated (MA)
Quest MRL Inc. (DE)
Each as a Guarantor and Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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QUEST DIAGNOSTICS INVESTMENTS
INCORPORATED
QUEST DIAGNOSTICS FINANCE
INCORPORATED
Each as a Guarantor and Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
PATHOLOGY BUILDING PARTNERSHIP, by Quest
Diagnostics Incorporated (MD), as General
Partner
As a Guarantor and Pledgor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------------
Name:
Title: