EXHIBIT 10.35
PLEDGE AGREEMENT DATED JANUARY 11, 1999 BY AND BETWEEN
TURBOCHE TECHNOLOGIES, INC. AND AIG FINANCIAL SERVICES CORP.
EXHIBIT 10.35
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of January 11, 1999 between
TURBOCHEF TECHNOLOGIES, INC. (the "Pledgor") and BANQUE AIG, LONDON BRANCH (the
"Bank").
WHEREAS, the Bank and the Pledgor intend to enter into a
Variable Stock Agreement (the "Stock Agreement"), pursuant to which the Pledgor
will sell to the Bank Covered Contract Shares (as defined in the Stock
Agreement) at the time and on the terms specified therein; and
WHEREAS, the Bank and/or certain of its Affiliates (as
hereinafter defined) may from time to time enter into derivative and other
transactions with the Pledgor, including options transactions effected pursuant
to the Master Agreement, dated as of the date hereof (the "Master Agreement"),
between the Pledgor and the Bank;
NOW, THEREFORE, to induce the Bank and its Affiliates to
enter into the securities purchase, derivative and other transactions
contemplated by the Stock Agreement and/or the Master Agreement (collectively,
the "Secured Transactions"), and to secure the Pledgor's obligations thereunder
and under this Agreement (collectively, the "Secured Obligations"), and for
other good consideration, the receipt and adequacy of which are hereby
acknowledged, the Pledgor and the Bank agree as follows:
1. As collateral security for the performance of the Secured
Obligations, the Pledgor hereby pledges and assigns to the Bank, and grants to
the Bank a valid first-priority security interest in, the following collateral
(the "Collateral"): (i) those Securities identified in Exhibit A hereto (the
"Identified Securities"), all proceeds and products thereof, all dividends,
interest and other distributions thereon (whether in cash, additional securities
or otherwise), and all Security Entitlements to the Identified Securities and
any other Securities or other Investment Property constituting Collateral
hereunder, and (ii) all options ("Options") purchased by Pledgor from the Bank
under the Master Agreement, all Securities Entitlements of the Pledgor to the
Options and all General Intangibles and contract rights of the Pledgor relating
to or arising from the Stock Agreement, the Master Agreement or the Options.
Capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings assigned to
such terms in the New York Uniform Commercial Code (the "New York UCC").
2. The Pledgor shall deliver to the Bank on the date hereof
140,000 shares of the Identified Securities in certificated form in proper form
for transfer (as determined by the Bank in its sole discretion) and shall
include therewith stock powers duly endorsed in blank (the "Initial Shares").
The Pledgor acknowledges that the Bank intends to submit the Initial Shares to
The Depository Trust Company ("DTC") or its representative for entry into DTC's
book-entry system and that the Bank or its nominee shall thereafter hold the
Initial Shares (subject to the Bank's right to transfer or register Collateral
as provided in this Agreement) in book-entry form through the facilities of DTC.
The Pledgor further shall deliver to the Bank, or at its
instructions, any other Securities, assets or payments it receives that
constitute Collateral hereunder promptly after receiving the same. In
particular, and without limitation to the foregoing, the Pledgor (i) confirms
that on the date hereof it owns 293,846 shares of Common Stock, $1.25 per value
per share, of Maytag Corporation, a Delaware corporation ("Common Stock") and
that of such shares of Common Stock 146,923 shares (the "Relevant Shares")
constitute "restricted securities" as defined in Rule 144 ("Rule 144") under the
Securities Act of 1933, as amended (the "Securities Act"), and (ii) agrees that
it will (a) promptly after any Relevant Shares become eligible for resale by the
Pledgor pursuant to Rule 144(k), deliver said Relevant Shares to the Bank as
additional Collateral hereunder, and (b) execute and deliver all such documents
(including any amendments or supplements to this Agreement) as the Bank may
reasonably request to effect any such delivery. The Pledgor and the Bank further
agree that any Relevant Shares so delivered by the Pledgor to the Bank shall,
from and after the date of delivery, constitute Identified Securities for all
purposes of this Agreement. The Pledgor shall deliver the Relevant Shares to the
Bank hereunder in book-entry form through the facilities of DTC.
Notwithstanding anything in this Agreement to the contrary,
the Bank acknowledges that the 293,846 shares of Common Stock owned by the
Pledgor on the date hereof include, in addition to the Initial Shares and the
Relevant Shares, 6,923 shares of Common Stock that are not
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"restricted securities" as defined in Rule 144 and that the Pledgor is not
pledging, and is not required to pledge, such 6,923 shares of Common Stock to
the Bank hereunder.
3. The Pledgor represents, warrants, covenants and agrees that: (i) it
is duly incorporated and validly existing as a corporation in good standing
under the laws of the State of Delaware, (ii) this Agreement has been duly
authorized, executed and delivered by the Pledgor and constitutes a valid and
legally binding obligation of the Pledgor enforceable in accordance with its
terms, (iii) the pledge and delivery of the Collateral pursuant to this
Agreement will create a valid first-priority lien on and first-priority
perfected security interest in the Collateral securing the satisfaction or
payment of the Secured Obligations, (iv) it has, and will have upon the deposit
of any additional Collateral with the Bank or the purchase of any Options, title
to all of the Collateral, free and clear of all claims, mortgages, pledges,
liens, encumbrances and security interests of every nature whatsoever ("Liens")
and no consent or approval of any person, entity or governmental or regulatory
authority, or of any securities exchange, was or is necessary to create or
perfect the security interest created hereby, (v) the execution and delivery of
this Agreement by the Pledgor and the performance by the Pledgor of its
obligations hereunder do not violate or conflict with, and will not result in a
breach of or default under, any law applicable to it, any of its organizational
documents, any order, judgment or decree of any court or other agency or body or
any contract, agreement or instrument to which it is a party or affecting any of
its assets and will not result in the creation or imposition of a Lien on any of
its assets (other than the Lien created hereby), (vi) the information set forth
in Exhibit A is true and correct; (vii) no Liens other than the Lien created
hereby in favor of the Bank exist upon or with respect to any of the Collateral
and (viii) there is no restriction on the ability of, or consent or approval
that is necessary for, the Bank to effect an "Initial Transfer" as contemplated
by Section 9.
4. The Pledgor will faithfully preserve and protect the Bank's
security interest in the Collateral, wi1 defend the Bank's right, title, lien
and security interest in and to the Collateral against the claims and demands of
all persons whomsoever, and will do all such acts and things and execute and
deliver all such documents and instruments,
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including without limitation further pledges, assignments, financing statements
and continuation statements, as the Bank in its sole discretion may reasonably
deem necessary or advisable from time to time in order to preserve, protect and
perfect such security interest or to enable the Bank to exercise or enforce its
rights under this Agreement with respect to any Collateral. The Pledgor hereby
authorizes the Bank to sign and file financing and continuation statements and
Securities and Exchange Commission Form 144s (or similar or replacement forms)
without the signature of the Pledgor.
5. The Pledgor will not permit any Liens other than the Lien created
hereby in favor of the Bank to exist upon any of the Collateral.
6. The Pledgor will not take any action that could in any way limit or
adversely affect the ability of the Bank to realize upon its rights in the
Collateral.
7. The Pledgor hereby confirms that the Identified Securities are not
"restricted" or "control" securities for purposes of the Securities Act and may
be freely resold by the Bank under the Securities Act without restriction as to
the amount or timing of sale.
8. At any time and from time to time the Bank may cause all or any of
the Collateral to be transferred to or registered in its name or the name of its
nominee or nominees.
9. The Pledgor acknowledges and agrees that the Bank may sell, loan,
transfer, pledge or otherwise rehypothecate all or part of the Collateral from
time to time in one or more transactions (each such transaction an "Initial
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Transfer"). The Pledgor understands and agrees that, in connection with an
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Initial Transfer, the Bank may transfer all voting and dividend and other rights
associated with the Collateral and that any such Initial Transfer will be for
the sole benefit and risk of the Bank and that the Pledgor will have no interest
in the Initial Transfer. The Pledgor acknowledges that the Bank would be
unwilling to execute Secured Transactions with the Pledgor if it did not have
the right to effect Initial Transfers.
10. The Bank shall be entitled to exercise all voting power with
respect to the Collateral if there shall
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at any time occur and be continuing an Event of Default or a Potential Default.
In addition, whether or not there has been an Event of Default or Potential
Default, the Bank may transfer any and all of the voting rights associated with
the Identified Securities (or any other Securities included in the Collateral)
through an Initial Transfer. The Pledgor acknowledges that the Bank may execute
one or more Initial Transfers at any time and that, in such a case, the Pledgor
will have no voting rights with respect to any Identified Securities (or other
Securities) included in such Initial Transfer. An "Event of Default" shall be
deemed to occur if (i) the Pledgor is in default in performing any Secured
Obligation (including any of its covenants under the Stock Agreement, the Master
Agreement or Additional Termination Event, with the Pledgor as the affected
party, or this Agreement), (ii) an Event of Default, Termination Event or
Additional Termination Event, with the Pledgor as the affected party, shall
occur under the Master Agreement, (iii) there shall occur any event that would
permit the Bank to declare an acceleration under Article VI of the Stock
Agreement, or (iv) any representation or warranty made by the Pledgor under the
Stock Agreement, the Master Agreement or this Agreement is or becomes materially
inaccurate. A "Potential Default" includes any fact or circumstance that with
notice or lapse of time or both would constitute an Event of Default.
11. If the Pledgor shall fail to deliver Covered Contract Shares to
the Bank at the time or in the amounts required by the Stock Agreement, the Bank
shall be entitled to apply to the satisfaction of the Pledgor's delivery
obligation any Identified Securities or other Securities then pledged hereunder
that are of the same class as the Covered Contract Shares. In addition, if any
other Event of Default shall occur, or if the Pledgor shall default on its
obligation to deliver Covered Contract Shares under the Stock Agreement and
insufficient Identified Securities (or other Securities of the same class as the
Covered Contract Shares) are then pledged hereunder to satisfy such delivery
obligation in full, the Bank, without obligation to resort to other security,
shall have the right at any time and from tame to time to sell, resell, assign
and deliver, in its discretion, all or any of the Collateral, in one or more
parcels at the same or different times, and all right, title and interest, claim
and demand therein and right of redemption thereof, on any securities exchange
on which the Collateral or any of it may be listed, or at public or
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private sale, for cash, upon credit or for future delivery, and in connection
therewith the Bank may grant options, the Pledgor hereby waiving and releasing
any and all equity or right of redemption to the fullest extent permitted by
law. If any of the Collateral is sold by the Bank upon credit or for future
delivery, the Bank shall not be liable for the failure of the purchaser to
purchase or pay for the same and, in the event of any such failure, the Bank may
resell such Collateral. In no event shall the Pledgor be credited with any part
of the proceeds of sale of any Collateral until cash payment thereof has
actually been received by the Bank. In addition, should any portion of the
Collateral consist of a time deposit or deposits with a financial institution
(including the Bank), the Bank may terminate such deposit or deposits prior to
the maturity thereof and any penalties payable in connection therewith shall be
for the sole account of the Pledgor.
12. The Pledgor acknowledges and agrees that the Identified Securities
may decline speedily in value and are of a type customarily sold on a recognized
market, and, accordingly, no demand, advertisement or notice, all of which are
hereby expressly waived, shall be required in connection with any sale or other
disposition of any such Identified Securities, or any other securities or assets
included in the Collateral which may decline speedily in value or which are of a
type customarily sold on a recognized market, except any notice that is required
under applicable law and cannot be waived. With respect to any other type of
Collateral, the Bank shall give the Pledgor at least five business days' prior
notice of the time and place of any public sale and of the time after which any
private sale or other disposition is to be made, which notice the Pledgor agrees
is reasonable, all other demands, advertisements and notices being hereby
waived. The Bank shall not be obligated to make any sale of Collateral if it
shall determine not to do so, regardless of the fact that notice of sale may
have been given. The Bank may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In the case of all sales of Collateral, public or private, the
Pledgor shall pay all costs and expenses of every kind for sale or delivery,
including brokers' and attorneys' fees and all liabilities and advances made or
incurred by the Bank in
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connection with such sale or delivery, and after deducting such costs and
expenses from the proceeds of sale, the Bank shall apply any residue first, to
the payment of the costs and expenses, including legal fees, incurred by the
Bank in connection with the administration and enforcement of the Secured
Obligations and this Agreement and any amounts due to the Bank in respect of the
Secured Obligations other than principal or interest and other than settlement
payments due upon the exercise or early termination of Options or payments due
to the Bank by reason of any default by the Pledgor (after giving effect to any
application of Collateral hereunder) to deliver Covered Contract Shares under
the Stock Agreement, second, if applicable, to the payment of interest owed with
regard to the Secured Obligations, and third, to the payment of principal or
other amounts owed with regard to the Secured Obligations. The balance, if any,
remaining after payment in full of all such amounts shall be paid to or on the
order of the Pledgor.
13. The Pledgor recognizes that the Bank may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in the Securities Act, as now or hereafter in effect, or in applicable
Blue Sky or other state securities laws, as now or hereafter in effect, but may
be compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor agrees that private sales so made
may be at prices and other terms less favorable to the seller than if such
Collateral were sold at public sales, and that the Bank has no obligation to
delay sale of any such Collateral for the period of time necessary to permit the
issuer of such Collateral, even if such issuer would agree, to register such
Collateral for public sale under such applicable securities laws. The Pledgor
agrees that private sales made under the foregoing circumstances shall be deemed
to have been made in a commercially reasonable manner.
14. The Bank shall have the right (but not any obligation), for and in
the name, place and stead of the Pledgor, to execute endorsements, assignments
or other instruments of conveyance or transfer with respect to all or any of the
Collateral.
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15. The Bank shall have no duty as to the collection or protection of
the Collateral or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody of any thereof actually in its
possession. As provided in Section 9, the Bank may transfer any or all of the
dividend rights relating to the Collateral (including the Identified Securities)
in an Initial Transfer. The Bank agrees that notwithstanding any such Initial
Transfer it may make it will, in the absence of an Event of Default or Potential
Default, promptly pay over, or cause to be paid over, to the Pledgor any cash
dividends actually paid on the Identified Securities during the term of this
Agreement (other than any such dividend which the Bank, in its good faith
discretion, determines was not paid by the issuer of the Identified Securities
in the ordinary course of its business or otherwise constitutes an
"extraordinary" dividend). With respect to any maturities, calls, conversions,
exchanges, redemptions, offers, tenders or similar matters relating to any of
the Collateral (herein called "events") occurring prior to an Event of Default
or a Potential Default by the Pledgor in respect of any of the Secured
Obligations, the Bank's duty shall be fully satisfied if (i) the Bank promptly
forwards to the Pledgor any notices the Bank receives, in its capacity as
registered holder, of any events applicable to any securities included in the
Collateral which are registered and held in the name of the Bank or its nominee,
and (ii) subject to the exercise of its sole discretion (a) the Bank endeavors
to take such action with respect to any of such events as the Pledgor may
reasonably and specifically request in writing in sufficient time for such
action to be evaluated and taken or (b) if the Bank determines that the action
requested might adversely affect the value of the Collateral as collateral, the
collection of the Secured Obligations, or otherwise prejudice the interests of
the Bank, the Bank gives reasonable notice to the Pledgor that any such
requested action will not be taken, and if the Bank makes such determination or
if the Pledgor fails to make such timely request, the Bank takes such other
action as it deems advisable in the circumstances; provided, however, that the
Bank shall have no duties hereunder in regard to any event that occurs with
respect to Collateral which is subject to an Initial Transfer. Except as
hereinabove specifically set forth, and at any time following an Event of
Default or a Potential Default by the Pledgor in respect of any of the Secured
Obligations, the Bank shall have no further obligation to ascertain the
occurrence of, or to notify the
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Pledgor with respect to, any events and shall not be deemed to assume any such
further obligation as a result of the establishment by the Bank of any internal
procedures with respect to any securities in its possession. The Pledgor
releases the Bank from any claims, causes of action and demands at any time
arising out of or with respect to this Agreement or the Collateral and/or any
actions taken or omitted to be taken by the Bank with respect thereto, and the
Pledgor hereby agrees to hold the Bank harmless from and with respect to any and
all such claims, causes of action and demands.
16. The Pledgor hereby irrevocably appoints the Bank as the Pledgor's
attorney-in-fact for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any instrument which the Bank may
deem necessary or advisable to accomplish the purposes hereof. Without limiting
the generality of the foregoing, the Bank shall have the right and power to
receive, endorse and collect all checks and other orders for the payment of
money made payable to the Pledgor representing any interest or dividend or other
distribution payable in respect of the Collateral or any part thereof and to
give full discharge for the same.
17. The remedies provided herein in favor of the Bank shall not be
deemed exclusive, but shall be cumulative, and shall be in addition to all other
remedies in favor of the Bank existing at law or in equity. No delay on the part
of the Bank in exercising any of its options, powers or rights, or partial or
single exercise thereof, shall constitute a waiver thereof. The pledge of the
Collateral hereby shall not in any way preclude or restrict any recourse by the
Bank against the Pledgor or any other person or entity liable with regard to the
Secured Obligations or any other collateral therefor. Without limitation to the
foregoing, the Bank shall have all the rights of a secured party under the New
York UCC.
18. If the Pledgor defaults in its obligation to deliver Covered
Contract Shares under the Stock Agreement and the Identified Securities (or
other Securities of the same class as the Covered Contract Shares) then pledged
hereunder are insufficient to satisfy such delivery obligation in full, or if
the proceeds of any sale, collection or other realization of or upon the
Collateral pursuant to this Agreement are insufficient to pay in full
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both any monetary Secured Obligations and the costs and expenses of such
realization, the Pledgor shall remain liable to the Bank for such deficiency in
its entirety.
19. Upon (i) the satisfaction in full of the Pledgor's obligation to
deliver Covered Contract Shares under the Stock Agreement, and (ii) the payment
in full of all amounts that may be payable with regard to the Secured
Obligations, the Pledgor shall be entitled to the return of all of the
Collateral and of all other property and cash which have not been used or
applied toward the satisfaction of such delivery requirements or the payment of
such amounts free and clear of all Liens in favor of the Bank or any
encumbrances imposed by the Bank. Except as aforesaid, the assignment by the
Bank to the Pledgor of such Collateral and other property shall be without
representation or warranty of any nature whatsoever and wholly without recourse.
20. Any notice or demand upon the Pledgor shall be deemed to have been
sufficiently given for all purposes thereof if mailed, postage prepaid, by
registered or certified mail, return receipt requested, or if delivered, to the
Pledgor at the address specified below, or at such other address as the Pledgor
may theretofore have designated in writing and given in like manner to the Bank.
Any such notice shall be effective when so mailed or delivered.
21. Any waiver, permit, consent or approval of any kind or character
on the part of the Bank of any breach or default under this Agreement or any
such waiver of any provision or condition of this Agreement must be in a writing
duly executed by the Bank and shall be effective only to the extent specifically
set forth in such writing.
22. This Agreement may not be assigned, nor may any obligation
hereunder be delegated, by the Pledgor without the prior written consent of the
Bank, and any purported assignment, or delegation, without such consent shall be
null and void. The Bank may in its discretion transfer its rights and
obligations hereunder to any person to whom the Bank transfers its interest and
obligations under the Stock Agreement or the Master Agreement and may transfer
its rights in the Collateral as provided in Section 9. This Agreement and the
rights and obligations of the Bank and the Pledgor hereunder cannot be changed
orally and shall bind and inure to the benefit of the Pledgor and the Bank and
their respective heirs, distributees,
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executors, personal representatives and administrators and permitted successors
and assigns, and all subsequent holders of the Secured Obligations. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
23. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute but one and the same instrument.
24. The Pledgor agrees to pay the Bank on demand all costs and
expenses, including legal fees, incurred by the Bank in connection with the
enforcement of this Agreement, all of which costs and expenses shall form part
of the Secured Obligations as provided above.
25. The Pledgor expressly acknowledges and agrees that the Lien
created by this Agreement shall apply equally for the benefit of any affiliate
(each, an "Affiliate") of the Bank that enters into Secured Transactions with
the Pledgor. Each Secured Transaction so extended by an Affiliate shall be
deemed to be a Secured Obligation hereunder; each such Affiliate shall have the
same rights as the Bank in relation to the Pledgor hereunder; the Bank's and
each Affiliate's security interest in the Collateral shall rank equally with one
another (except, in each such case, as the Bank and such Affiliate may otherwise
agree), and the Pledgor's obligations to each Affiliate hereunder shall be the
same as his obligations to the Bank. As used herein, the term "Affiliate"
includes American International Group, Inc. and its direct and indirect wholly-
owned subsidiaries and any other person identified by the Bank to the Pledgor in
writing as an "Affiliate".
26. With respect to any suit, action or proceeding relating to this
Agreement ("Proceedings"), each of the Bank and the Pledgor irrevocably submits
to the non-exclusive jurisdiction of the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in New York
City, waives any objection which it may have at any time to the laying of venue
of any Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further waives the
right to object, with respect to such
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Proceedings, that such court does not have any jurisdiction over such party.
IN WITNESS WHEREOF, the Pledgor and the Bank have caused this Pledge
Agreement to be duly executed and, in the case of the Pledgor, notarized, as of
the day and year first above written.
TURBOCHEF TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS)
On the 5th day of February, 1999, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, who, being by me duly sworn, did depose and say that he is the CFO of
TurboChef Technologies, Inc., the corporation described in and which executed
the above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Notary Public
[STAMP APPEARS HERE]
BANQUE AIG, LONDON BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director
Address: ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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with a copy to:
AIG Financial Products Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
(with a copy to the
General Counsel)
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EXHIBIT A
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THE COLLATERAL
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Name of Issuer of
Pledged Shares No. of
(the "Corporation") Shares Class of Shares
------------------- ------ ---------------
Maytag Corporation 140,000 Common Stock, $1.25 per
value per share