Exhibit 10.16
BORROWER PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of December 21, 1998 (as same may be
further amended, amended and restated, modified or supplemented from time to
time, this "Agreement"), made by DOMINO'S, INC., a Delaware corporation
("Company") and BLUEFENCE, INC., a Michigan corporation ("Subsidiary Borrower"
and, together with Company, each a "Pledgor" and collectively "Pledgors"), and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK ("▇▇▇▇▇▇ Guaranty"), not in its
individual capacity but solely as Collateral Agent (including any successor
collateral agent, the "Pledgee") for the benefit of (x) the Lenders, the
Syndication Agent, the Documentation Agent and the Administrative Agent under,
and any other lenders from time to time party to, the Credit Agreement
hereinafter referred to (such Lenders, the Syndication Agent, the Documentation
Agent, the Administrative Agent, the Pledgee and other lenders, if any, are
hereinafter called the "Bank Creditors") and (y) if ▇▇▇▇▇▇ Guaranty, in its
individual capacity, any Lender or any Affiliate of a Lender enters into one or
more Hedging Agreements with, or guaranteed by, any of the Pledgors, ▇▇▇▇▇▇
Guaranty, any such Lender or Lenders or a syndicate of financial institutions
organized by ▇▇▇▇▇▇ Guaranty or an affiliate of ▇▇▇▇▇▇ Guaranty (even if ▇▇▇▇▇▇
Guaranty or the respective Lender subsequently ceases to be a Lender under the
Credit Agreement for any reason) so long as any such Lender or Affiliate
participates in the extension of such Hedging Agreements and their subsequent
assigns, if any (collectively, the "Hedging Exchangers", and the Hedging
Exchangers together with the Bank Creditors, are hereinafter called the "Secured
Parties"). Except as otherwise defined herein, terms used herein and defined in
the Credit Agreement shall be used herein as so defined.
W I T N E S S E T H:
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WHEREAS, TISM, Inc., a Michigan corporation ("Holdings"), each
Pledgor, the financial institutions from time to time party thereto (the
"Lenders"), ▇▇▇▇▇▇ Guaranty, as Administrative Agent (in its capacity as
Administrative Agent, being herein referred to as the "Administrative Agent"),
NDB Bank, as Syndication Agent, and Comerica Bank, as Documentation Agent, have
entered into a Credit Agreement, dated as of December 21, 1998, providing for
the making of Loans to the Pledgors and the issuance of, and participation in,
Letters of Credit as contemplated therein (as used herein, the term "Credit
Agreement" means the Credit Agreement described above in this paragraph, as the
same may be amended, modified or supplemented from time to time, and including
any successor agreement extending the maturity of, or restructuring (including,
but not limited to, the inclusion of additional borrowers thereunder that are
Subsidiaries of the Pledgors and whose obligations are guaranteed by the
Guarantors thereunder or any increase in the amount borrowed) of all or any
portion of the Indebtedness under such agreement or any successor agreements);
WHEREAS, the Pledgors may from time to time be party to one or more
Hedging Agreements with the Hedging Exchangers;
WHEREAS, it is a condition precedent to the making of Loans to the
Pledgors and the issuance of, and participation in, Letters of Credit for the
joint and several account of the
Pledgors under the Credit Agreement that each Pledgor shall have executed and
delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of
Loans by the Pledgors and the issuance of Letters of Credit for the joint and
several account of the Pledgors under the Credit Agreement and the Pledgors'
entering into Hedging Agreements and, accordingly, desires to execute this
Agreement in order to satisfy the conditions precedent described in the
preceding paragraph and to induce the Lenders to make Loans to the Pledgors and
to issue Letters of Credit for the joint and several account of the Pledgors,
and to induce the Hedging Exchangers to enter into Hedging Agreements with the
Pledgors;
NOW, THEREFORE, in consideration of the benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
and hereby covenants and agrees with the Pledgee as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
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for the benefit of the Secured Parties to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, indemnities, Fees and interest
thereon) of such Pledgor owing to the Bank Creditors, whether now existing
or hereafter incurred under, arising out of, or in connection with the
Credit Agreement and the other Loan Documents to which such Pledgor is a
party and the due performance and compliance by such Pledgor with all of
the terms, conditions and agreements contained in the Credit Agreement and
such other Loan Documents (all such obligations, liabilities and
indebtedness under this clause (i) being herein collectively called the
"Credit Agreement Obligations");
(ii) the full and prompt payment when due (whether at stated maturity,
by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, indemnities, fees and interest
thereon) of such Pledgor owing to the Hedging Exchangers, now existing or
hereafter incurred under, arising out of or in connection with any Hedging
Agreement, whether such Hedging Agreement is now in existence or
hereinafter arising, and the due performance and compliance with the terms,
conditions and agreements of each such Hedging Agreement by such Pledgor
and the due performance and compliance by such Pledgor with all of the
terms, conditions and agreements contained in each such Hedging Agreement
(all such obligations, liabilities and indebtedness under this clause (ii)
being herein collectively called the "Hedging Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) and/or preserve its security
interest therein;
(iv) in the event of any proceeding for the collection of the
Obligations (as defined below) or the enforcement of this Agreement, after
an Event of Default (such
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term, as used in this Agreement, shall mean (i) at any time prior to the
repayment in full of all Credit Agreement Obligations and the termination
of all Commitments, any Event of Default under, and as defined in, the
Credit Agreement and (ii) at any time after the repayment in full of all
Credit Agreement Obligations and the termination of all Commitments, any
payment default under any Hedging Agreement and shall in any event include,
without limitation, any payment default (after the expiration of any
applicable grace period) on any of the Obligations (as defined below))
shall have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys' fees and court costs;
and
(v) all amounts paid by any Indemnitee to which such Indemnitee has
the right to reimbursement under Section 11 of this Agreement.
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (v) of this Section 1 being collectively called the
"Obligations", it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS; ANNEXES. (a) Unless otherwise defined herein, all
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capitalized terms used herein and defined in the Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the recitals
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hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1)
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of the UCC.
"Agreement" has the meaning set forth in the first paragraph hereof.
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"Bank Creditors" has the meaning set forth in the first paragraph
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hereof.
"Certificated Security" has the meaning given such term in Section 8-
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102(a)(4) of the UCC.
"Chattel Paper" has the meaning given such term in the UCC.
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"Clearing Corporation" has the meaning given such term in Section 8-
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102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
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"Collateral Accounts" means any and all accounts established and
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maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Credit Agreement" has the meaning set forth in the Recitals hereto.
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"Credit Agreement Obligations" has the meaning set forth in Section 1
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hereof.
"Domestic Corporation" has the meaning set forth in the definition of
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"Stock."
"Event of Default" has the meaning set forth in Section 1 hereof.
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"Excluded Foreign Entity" means any corporation, partnership (general
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or limited), limited liability or other business entity (x) that is organized
under the laws of any country, state or province other than the United States,
Canada, Bermuda or any state, province or territory thereof and (y) the book
value of the gross assets of which do not exceed $1,000,000.
"Financial Asset" has the meaning given such term in Section 8-
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102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the definition of
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"Stock."
"Hedging Agreements" has the meaning set forth in the first paragraph
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hereof.
"Hedging Exchangers" has the meaning set forth in the first paragraph
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hereof.
"Hedging Obligations" has the meaning set forth in Section 1 hereof.
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"Indemnitees" has the meaning set forth in Section 11 hereof.
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"Instrument" has the meaning given such term in Section 9-105(1)(i) of
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the UCC.
"Investment Property" has the meaning given such term in Section 9-
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115(f) of the UCC.
"Lenders" has the meaning set forth in the Recitals hereto.
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"Limited Liability Company Assets" means all assets, whether tangible
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or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
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liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Non-Voting Stock" means all capital stock which is not Voting Stock.
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"Notes" means (x) all intercompany notes at any time issued to each
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Pledgor and (y) all other promissory notes from time to time issued to, or held
by, each Pledgor.
"Obligations" has the meaning set forth in Section 1 hereof.
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"Partnership Assets" means all assets, whether tangible or intangible
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and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership interest
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or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership (other than Excluded Foreign Entity).
"Pledged Notes" has the meaning set forth in Section 3.5 hereof.
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"Pledgee" has the meaning set forth in the first paragraph hereof.
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"Pledgor" has the meaning set forth in the first paragraph hereof.
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"Proceeds" has the meaning given such term in Section 9-306(l) of the
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UCC.
"Requisite Lenders" has the meaning given such term in the Credit
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Agreement.
"Secured Parties" has the meaning set forth in the first paragraph
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hereof.
"Secured Debt Agreements" has the meaning set forth in Section 5
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hereof.
"Securities Account" has the meaning given such term in Section 8-
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501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in
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effect from time to time.
"Security" and "Securities" has the meaning given such term in Section
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8-102(a)(15) of the UCC and shall in any event include all Stock and Notes (to
the extent same constitute "Securities" under Section 8-102(a)(15)) but exclude
Securities issued by Excluded Foreign Entities.
"Security Entitlement" has the meaning given such term in Section 8-
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102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated under the
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laws of the United States or any State or territory thereof (each a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
corporation at any time owned by any Pledgor of any Domestic Corporation and (y)
with respect to corporations not Domestic Corporations or Excluded Foreign
Entities (each a "Foreign Corporation"), all of the issued and outstanding
shares of capital stock at any time owned by any Pledgor of any Foreign
Corporation.
"Termination Date" has the meaning set forth in Section 19 hereof.
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"UCC" means the Uniform Commercial Code as in effect in the State of
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New York from time to time; provided that all references herein to specific
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sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
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"Uncertificated Security" has the meaning given such term in Section
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8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any Foreign
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Corporation entitled to vote.
3. PLEDGE OF SECURITY INTEREST, ETC.
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3.1 Pledge. To secure the Obligations now or hereafter owed or to be
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performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Parties, and does hereby create a
continuing security interest (subject to those Liens permitted to exist with
respect to the Collateral pursuant to the terms of all Secured Debt Agreements
then in effect) in favor of the Pledgee for the benefit of the Secured Parties
in, all of the right, title and interest in and to the following, whether now
existing or hereafter from time to time acquired (collectively, the
"Collateral"):
(a) each of the Collateral Accounts (to the extent a security interest
therein is not created pursuant to the Borrower Security Agreement),
including any and all assets of whatever type or kind deposited by such
Pledgor in such Collateral Account, whether now owned or hereafter
acquired, existing or arising, including, without limitation, all Financial
Assets, Investment Property, moneys, checks, drafts, Instruments,
Securities or interests therein of any type or nature deposited or required
by the Credit Agreement or any other Secured Debt Agreement to be deposited
in such Collateral Account, and all investments and all certificates and
other Instruments (including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the foregoing;
(b) all Securities of such Pledgor from time to time;
(c) all Limited Liability Company Interests of such Pledgor from time
to time and all of its right, title and interest in each limited liability
company to which each such interest relates, whether now existing or
hereafter acquired, including, without limitation:
(A) all its capital therein and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
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(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of any of such Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to time and
all of its right, title and interest in each partnership to which each such
interest relates, whether now existing or hereafter acquired, including,
without limitation:
(A) all its capital therein and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
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(E) all of such Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other
action on behalf of and in the name of any of such Pledgor in respect
of such Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing (with all of the
foregoing rights only to be exercisable upon the occurrence and during
the continuation of an Event of Default); and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in any
and all of the foregoing;
(f) all Financial Assets and Investment Property of such Pledgor from
time to time; and
(g) all Proceeds of any and all of the foregoing;
provided that (x) except to the extent provided by subsection 6.11 of
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the Credit Agreement, no Pledgor shall be required at any time to pledge
hereunder more than 65% of the Voting Stock of any Foreign Corporation and (y)
each Pledgor shall be required to pledge hereunder 100% of any Non-Voting Stock
at any time and from time to time acquired by such Pledgor of any Foreign
Corporation.
3.2 Procedures. (a) To the extent that any Pledgor at any time or
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from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the Secured Parties:
(i) with respect to a Certificated Security (other than a Certificated
Security credited on the books of a Clearing Corporation), the respective
Pledgor shall physically
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deliver such Certificated Security to the Pledgee, endorsed to the Pledgee
or endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall cause the issuer of such Uncertificated
Security to duly authorize and execute, and deliver to the Pledgee, an
agreement for the benefit of the Pledgee and the other Secured Parties
substantially in the form of Annex G hereto (appropriately completed to the
satisfaction of the Pledgee and with such modifications, if any, as shall
be satisfactory to the Pledgee) pursuant to which such issuer agrees to
comply with any and all instructions originated by the Pledgee without
further consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership Interests and
Limited Liability Company Interests issued by such issuer) originated by
any other Person other than a court of competent jurisdiction; provided
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that Pledgee hereby agrees that it will not provide any instructions to any
such issuer unless and until an Event of Default has occurred and is
continuing.
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply with the applicable rules
of such Clearing Corporation and (ii) to perfect the security interest of
the Pledgee under applicable law (including, in any event, under Sections
9-115 (4)(a) and (b), 9-115 (1)(e) and ▇-▇▇▇ (▇) of the UCC). Each Pledgor
further agrees to take such actions as the Pledgee deems necessary or
desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate, the procedure set forth in Section 3.2(a)(i), and (2) if
such Partnership Interest or Limited Liability Company Interest is not
represented by a certificate, the procedure set forth in Section
3.2(a)(ii);
(v) with respect to any Note (other than, to the extent no Event of
Default has occurred and is continuing, a Note that constitutes Chattel
Paper), physical delivery of such Note to the Pledgee, endorsed to the
Pledgee or endorsed in blank; and
(vi) after an Event of Default has occurred and is continuing, with
respect to cash, to the extent not otherwise provided in the Borrower
Security Agreement, (i) establishment by the Pledgee of a cash account in
the name of such Pledgor over which the Pledgee shall have exclusive and
absolute control and dominion (and no withdrawals or transfers may be made
therefrom by any Person except with the prior written consent of the
Pledgee) and (ii) deposit of such cash in such cash account.
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(b) In addition to the actions required to be taken pursuant to
proceeding Section 3.2(a), each Pledgor shall take the following additional
actions with respect to the Securities and Collateral (as defined below):
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be requested from time to time by the
Pledgee so that "control" of such Collateral is obtained and at all times
held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing
statements (on Form UCC-1 or other appropriate form) under the Uniform
Commercial Code as in effect in the various relevant States, on form
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), to be filed in the relevant
filing offices so that at all times the Pledgee has a security interest in
all Investment Property and other Collateral which is perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant States,
including, without limitation, Section 9-115(4)(b) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire
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(by purchase, stock dividend or otherwise) any additional Collateral at any time
or from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.1 and, furthermore,
such Pledgor will promptly thereafter take (or cause to be taken) all action
with respect to such Collateral in accordance with the procedures set forth in
Section 3.2, and will promptly thereafter deliver to the Pledgee (i) a
certificate executed by a principal executive officer of such Pledgor describing
such Collateral and certifying that the same has been duly pledged in favor of
the Pledgee (for the benefit of the Secured Parties) hereunder and (ii)
supplements to Annexes A through F hereto as are necessary to cause such annexes
to be complete and accurate at such time. Without limiting the foregoing, each
Pledgor shall be required to pledge hereunder any shares of stock at any time
and from time to time after the date hereof acquired by such Pledgor of any
Foreign Corporation, provided that (x) except to the extent provided by
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subsection 6.11 of the Credit Agreement, no Pledgor shall be required at any
time to pledge hereunder more than 65% of the Voting Stock of any Foreign
Corporation and (y) each Pledgor shall be required to pledge hereunder 100% of
any Non-Voting Stock at any time and from time to time acquired by such Pledgor
of any Foreign Corporation.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
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Section 3.3 shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 Definition of Pledged Notes. All Notes at any time pledged or
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required to be pledged hereunder are hereinafter called the "Pledged Notes".
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3.6 Certain Representations and Warranties Regarding the Collateral.
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Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
of such Pledgor, and the direct ownership thereof, is listed in Annex A hereto;
(ii) the Stock held by such Pledgor consists of the number and type of shares of
the stock of the corporations as described in Annex B hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex B hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex C hereto where
such Pledgor is listed as the lender; (v) the Limited Liability Company
Interests held by such Pledgor consist of the number and type of interests of
the Persons described in Annex D hereto; (vi) each such Limited Liability
Company Interest constitutes that percentage of the issued and outstanding
equity interest of the issuing Person as set forth in Annex D hereto; (vii) the
Partnership Interests held by such Pledgor consist of the number and type of
interests of the Persons described in Annex E hereto; (viii) each such
Partnership Interest constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex E hereto; (ix) the
Pledgor has complied with the respective procedure set forth in Section 3.2(a)
with respect to each item of Collateral described in Annexes A through E hereto;
and (x) on the date hereof, such Pledgor owns no other Securities, Limited
Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
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have the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Collateral, which may be held (in the discretion of
the Pledgee) in the name of the relevant Pledgor, endorsed or assigned in blank
or in favor of the Pledgee or any nominee or nominees of the Pledgee or a sub-
agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
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shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise all voting rights attaching to any and all Collateral owned
by it, and to give consents, waivers or ratifications in respect thereof
provided that no vote shall be cast or any consent, waiver or ratification given
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or any action taken which would violate, result in breach of any covenant
contained in, or be inconsistent with, any of the terms of this Agreement, the
Credit Agreement, any other Loan Document or any Hedging Agreement
(collectively, the "Secured Debt Agreements"), or which would have the effect of
impairing the value of the Collateral or any part thereof or the position or
interests of the Pledgee or any other Secured Creditor therein. All such rights
of a Pledgor to vote and to give consents, waivers and ratifications shall cease
in case an Event of Default (or a Default under Section 8.6 or 8.7 of the Credit
Agreement) shall occur and be continuing and Section 7 hereof shall become
applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until an Event of
---------------------------------
Default shall have occurred and be continuing, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor. Subject to Section 3.2
hereof, the Pledgee shall be entitled to receive directly, and to retain as part
of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited
-11-
to, cash dividends other than as set forth above) paid or distributed by
way of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) paid or distributed in
respect of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) which may be paid in respect
of the Collateral by reason of any consolidation, merger, exchange of
stock, conveyance of assets, liquidation or similar corporate
reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive the proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends, distributions or
other payments which are received by the respective Pledgor contrary to the
provisions of this Section 6 or Section 7 shall be received for the benefit of
the Pledgee, shall be segregated from other property or funds of such Pledgor
and shall be forthwith paid over to the Pledgee as Collateral in the same form
as so received (with any necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. In case an Event of
---------------------------------------
Default shall have occurred and be continuing, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in it by this
Agreement or by any other Secured Debt Agreement or by law) for the protection
and enforcement of its rights in respect of the Collateral, including, without
limitation, all the rights and remedies of a secured party upon default under
the Uniform Commercial Code of the State of New York, and the Pledgee shall be
entitled, without limitation, to exercise any or all of the following rights,
which each Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 to such Pledgor;
(ii) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (each Pledgor
hereby irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to do
so);
-12-
(v) at any time or from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided that at least 10 days' notice
--------
of the time and place of any such sale shall be given to such Pledgor. The
Pledgee shall not be obligated to make such sale of Collateral regardless
of whether any such notice of sale has theretofore been given. Each
purchaser at any such sale shall hold the property so sold absolutely free
from any claim or right on the part of each Pledgor, and each Pledgor
hereby waives and releases to the fullest extent permitted by law any right
or equity of redemption with respect to the Collateral, whether before or
after sale hereunder, all rights, if any, of marshalling the Collateral and
any other security for the Obligations or otherwise, and all rights, if
any, of stay and/or appraisal which it now has or may at any time in the
future have under rule of law or statute now existing or hereafter enacted.
At any such sale, unless prohibited by applicable law, the Pledgee on
behalf of all Secured Parties (or certain of them) may bid for and purchase
(by bidding in Obligations or otherwise) all or any part of the Collateral
so sold free from any such right or equity of redemption. Neither the
Pledgee nor any other Secured Party shall be liable for failure to collect
or realize upon any or all of the Collateral or for any delay in so doing
nor shall any of them be under any obligation to take any action whatsoever
with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations;
provided that, upon the occurrence of a Default under Section 8.6 or 8.7 of the
-------- ----
Credit Agreement, the Pledgee may exercise the rights specified in clause (i)
above.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of the
--------------------------
Pledgee provided for in this Agreement or any other Secured Debt Agreement, or
now or hereafter existing at law or in equity or by statute shall be cumulative
and concurrent and shall be in addition to every other such right, power or
remedy. The exercise or beginning of the exercise by the Pledgee or any other
Secured Party of any one or more of the rights, powers or remedies provided for
in this Agreement or any other Secured Debt Agreement or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee or any other Secured Party of all
such other rights, powers or remedies, and no failure or delay on the part of
the Pledgee or any other Secured Party to exercise any such right, power or
remedy shall operate as a waiver thereof. Unless otherwise required by the Loan
Documents, no notice to or demand on any Pledgor in any case shall entitle such
Pledgor to any other or further notice or demand in similar other circumstances
or constitute a waiver of any of the rights of the Pledgee or any other Secured
Party to any other or further action in any circumstances without demand or
notice. The Secured Parties agree that this Agreement may be enforced only by
the action of the Pledgee, acting upon the instructions of the Requisite Lenders
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(or, after the date on which all Credit Agreement Obligations have been paid in
full, the holders of at least a majority of the Hedging Obligations) and that no
other Secured Party shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security to be granted hereby, it
being understood and agreed that such rights and remedies may be exercised by
the Pledgee or the holders of at least a majority of the Hedging Obligations, as
the case may be, for the benefit of the Secured Parties upon the terms of this
Agreement and the other Loan Documents.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee
-----------------------
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other moneys received by the Pledgee
hereunder, shall be applied to the payment of the Obligations in the manner
provided in subsection 2.4D of the Credit Agreement.
(b) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
------------------------
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or non-application thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
---------
indemnify and hold harmless the Pledgee, each other Secured Party and their
respective successors, assigns, employees, agents and servants (individually an
"Indemnitee", and collectively, the "Indemnitees") from and against any and all
claims, demands, losses, judgments and liabilities (including liabilities for
penalties) of whatsoever kind or nature, and (ii) to reimburse each Indemnitee
for all reasonable costs and expenses, including reasonable attorneys' fees, in
each case arising out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any other
Secured Debt Agreement (but excluding any claims, demands, losses, judgments and
liabilities (including liabilities for penalties) or expenses of whatsoever kind
or nature to the extent incurred or arising by reason of gross negligence or
willful misconduct of such Indemnitee). In no event shall any Indemnitee
hereunder be liable, in the absence of gross negligence or willful misconduct on
its part, for any matter or thing in connection with this Agreement other than
to account for monies or other property actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, each Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The indemnity obligations
of each Pledgor contained in this Section 11 shall continue in full force and
effect notwithstanding the full payment of all the Notes issued under the Credit
Agreement, the termination of all Hedging Agreements and Letters of Credit, and
the payment of all other Obligations and notwithstanding the discharge thereof.
-14-
12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) Each Pledgor agrees
-------------------------------------
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and re-file under the Uniform Commercial Code such financing
statements, continuation statements and other documents in such offices as the
Pledgee (acting on its own or on the instructions of the Requisite Lenders) may
reasonably deem necessary or appropriate and wherever required or permitted by
law in order to perfect and preserve the Pledgee's security interest in the
Collateral hereunder and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of the Collateral
without the signature of such Pledgor where permitted by law, and agrees to do
such further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the Pledgee
may reasonably require or deem advisable to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder or thereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's 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 after the occurrence and
during the continuance of an Event of Default, in the Pledgee's discretion to
take any action and to execute any instrument which the Pledgee may deem
necessary or advisable to accomplish the purposes of this Agreement.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
-------------------------------
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed that the
obligations of the Pledgee as holder of the Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in the UCC and this Agreement. The Pledgee shall
act hereunder on the terms and conditions set forth herein and in Section 9 of
the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
------------------------
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except in accordance
with the terms of this Agreement and the Loan Documents).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
---------------------------------------------------------
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good and
marketable title to, all Collateral consisting of one or more Securities
and that it has sufficient interest in all Collateral in which a security
interest is purported to be created hereunder for such security interest to
attach (subject, in each case, to no pledge, lien, mortgage, hypothecation,
security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement or permitted under the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
-15-
(iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of
such Pledgor enforceable against such Pledgor in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(iv) except to the extent already obtained or made, no consent of any
other party (including, without limitation, any stockholder or creditor of
such Pledgor or any of its Subsidiaries) and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is
required to be obtained by such Pledgor in connection with (a) the
execution, delivery or performance of this Agreement, (b) the validity or
enforceability of this Agreement (except as set forth in clause (iii)
above), (c) the perfection or enforceability of the Pledgee's security
interest in the Collateral or (d) except for compliance with or as may be
required by applicable securities laws, the exercise by the Pledgee of any
of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement will
not violate any provision of any applicable law or regulation or of any
order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, applicable to such Pledgor, or
of the certificate of incorporation, operating agreement, limited liability
company agreement or by-laws of such Pledgor or of any securities issued by
such Pledgor or any of its Subsidiaries, or of any mortgage, deed of trust,
indenture, lease, loan agreement, credit agreement or other contract,
agreement or instrument or undertaking to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such Pledgor
or any of its Subsidiaries or upon any of their respective assets and will
not result in the creation or imposition of (or the obligation to create or
impose) any lien or encumbrance on any of the assets of such Pledgor or any
of its Subsidiaries except as contemplated by this Agreement (other than
the Liens created by the Collateral Documents);
(vi) the pledge, collateral assignment and delivery to the Pledgee of
the Collateral consisting of certificated securities pursuant to this
Agreement creates a valid and perfected First Priority security interest in
such Securities, and the proceeds thereof, subject to no prior Lien or
encumbrance or to any agreement purporting to grant to any third party a
Lien or encumbrance on the property or assets of such Pledgor which would
include the Securities (other than Permitted Encumbrances) and the Pledgee
is entitled to all the rights, priorities and benefits afforded by the UCC
or other relevant law as enacted in any relevant jurisdiction to perfect
security interests in respect of such Collateral; and
(vii) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which such "control"
may be obtained pursuant to Section 8-106 of the UCC.
-16-
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Parties.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
16. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of
-------------------------------
each Pledgor is located at the address specified in Annex F hereto. Each
Pledgor will not move its chief executive office except to such new location as
such Pledgor may establish in accordance with the last sentence of this Section
16. The originals of all documents in the possession of such Pledgor evidencing
all Collateral, including but not limited to all Limited Liability Company
Interests and Partnership Interests, and the only original books of account and
records of such Pledgor relating thereto are, and will continue to be, kept at
such chief executive office at the location specified in Annex F hereto, or at
such new locations as such Pledgor may establish in accordance with the last
sentence of this Section 16. All Limited Liability Company Interests and
Partnership Interests are, and will continue to be, maintained at, and
controlled and directed (including, without limitation, for general accounting
purposes) from, such chief executive office location specified in Annex F
hereto, or such new locations as the respective Pledgor may establish in
accordance with the last sentence of this Section 16. No Pledgor shall
establish a new location for such offices until (i) it shall have given to the
Collateral Agent not less than 30 days' prior written notice of its intention so
to do, clearly describing such new location and providing such other information
in connection therewith as the Collateral Agent may reasonably request and (ii)
with respect to such new location, it shall have taken all action, satisfactory
to the Collateral Agent, to maintain the security interest of the Collateral
Agent in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. Promptly after establishing a new
location for such offices in accordance with the immediately preceding sentence,
the respective Pledgor shall deliver to the Pledgee a supplement to Annex F
hereto so as to cause such Annex F hereto to be complete and accurate.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
------------------------------------
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever (other than termination of this Agreement pursuant to
Section 19 hereof), including, without limitation:
(i) any renewal, extension, amendment or modification of, or addition
or supplement to or deletion from any Secured Debt Agreement (other than
this Agreement in accordance with its terms), or any other instrument or
agreement referred to therein, or any assignment or transfer of any
thereof;
-17-
(ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument or this
Agreement (other than a waiver, consent or extension with respect to this
Agreement in accordance with its terms);
(iii) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee;
(iv) any limitation on any party's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof;
or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
any Pledgor or any Subsidiary of any Pledgor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not such Pledgor shall have notice or
knowledge of any of the foregoing.
18. SALE OF COLLATERAL WITHOUT REGISTRATION. If at any time when the
----------------------------------------
Pledgee shall determine to exercise its right to sell all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests pursuant to Section 7, and such Collateral or the part
thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the Pledgee may,
in its sole and absolute discretion, sell such Collateral or part thereof by
private sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion: (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act; (ii) may approach and negotiate with a single possible purchaser
to effect such sale; and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, may in good ▇▇▇▇▇
▇▇▇▇ reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until the
registration as aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as defined
--------------------
below), this Agreement shall terminate (provided that all indemnities set forth
herein including, without limitation, in Section 11 hereof shall survive any
such termination) and the Pledgee, at the request and expense of the respective
Pledgor, will execute and deliver to such Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement
(including, without limitation, UCC termination statements and instruments of
satisfaction, discharge and/or reconveyance), and will duly assign, transfer and
deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Pledgee and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement, together with any moneys at the time held by the Pledgee or
-18-
any of its sub-agents hereunder and, with respect to any Collateral consisting
of an Uncertificated Security (other than an Uncertificated Security credited on
the books of a Clearing Corporation), a Partnership Interest or a Limited
Liability Company Interest, a termination of the agreement relating thereto
executed and delivered by the issuer of such Uncertificated Security pursuant to
Section 3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section 3.2(a)(iv). As used in this Agreement, "Termination Date"
shall mean the date upon which the Total Commitments and all Hedging Agreements
have been terminated, no Letter of Credit or Note is outstanding (and all Loans
have been paid in full), all Letters of Credit have been terminated, and all
other Obligations then due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold or otherwise
disposed of in connection with a sale or disposition permitted by Section 7.7 of
the Credit Agreement or is otherwise released at the direction of the Requisite
Lenders (or all of the Lenders to the extent required by subsection 10.6 of the
Credit Agreement) and the proceeds of such sale or sales or from such release
are applied in accordance with the terms of the Credit Agreement to the extent
required to be so applied, the Pledgee, at the request and expense of the
respective Pledgor will duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
possession of the Pledgee and has not theretofore been released pursuant to this
Agreement.
(c) At any time that any Pledgor desires that Collateral be released
as provided in the foregoing Section 19(a) or (b), it shall deliver to the
Pledgee a certificate signed by a principal executive officer of such Pledgor
stating that the release of the respective Collateral is permitted pursuant to
Section 19(a) or (b). If reasonably requested by the Pledgee (although the
Pledgee shall have no obligation to make any such request), the relevant Pledgor
shall furnish appropriate legal opinions (from counsel reasonably acceptable to
the Pledgee) to the effect set forth in the immediately preceding sentence. The
Pledgee shall have no liability whatsoever to any Secured Party as the result of
any release of Collateral by it as permitted by this Section 19.
20. NOTICES, ETC. All notices and other communications hereunder
-------------
shall be in writing and shall be delivered or mailed by first class mail,
postage prepaid, addressed:
(i) if to any Pledgor, at its address set forth opposite its
signature below;
(ii) if to the Pledgee, at:
▇.▇. ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to any Lender (other than the Pledgee), at such address as
such Lender shall have specified in the Credit Agreement;
-19-
(iv) if to any Hedging Exchanger, at such address as such Hedging
Exchanger shall have specified in writing to Holdings and the Pledgee;
or at such address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
21. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
---------------------------------------------------------
Nothing herein shall be construed to make the Pledgee or any other Secured Party
liable as a member of any limited liability company or partnership and neither
the Pledgee nor any other Secured Party by virtue of this Agreement or otherwise
(except as referred to in the following sentence) shall have any of the duties,
obligations or liabilities of a member of any limited liability company or
partnership. The parties hereto expressly agree that, unless the Pledgee shall
become the absolute owner of Collateral consisting of a Limited Liability
Company Interest or Partnership Interest pursuant hereto, this Agreement shall
not be construed as creating a partnership or joint venture among the Pledgee,
any other Secured Party and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 21, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or partnership or otherwise be deemed to
be a co-venturer with respect to any Pledgor or any limited liability company or
partnership either before or after an Event of Default shall have occurred. The
Pledgee shall have only those powers set forth herein and the Secured Parties
shall assume none of the duties, obligations or liabilities of a member of any
limited liability company or partnership or any Pledgor except as provided in
the last sentence of paragraph (a) of this Section 21.
(c) The Pledgee and the other Secured Parties shall not be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Party to appear in or defend
any action or proceeding relating to the Collateral to which it is not a party,
or to take any action hereunder or thereunder, or to expend any money or incur
any expenses or perform or discharge any obligation, duty or liability under the
Collateral.
22. WAIVER; AMENDMENT. Except as contemplated in Section 25 hereof,
-----------------
none of the terms and conditions of this Agreement may be changed, waived,
discharged or terminated in any manner whatsoever unless such change, waiver,
discharge or termination is in writing duly signed by each Pledgor to be bound
thereby and the Collateral Agent (with the consent of the Requisite Lenders or,
to the extent required by subsection 10.6 of the Credit Agreement, all of the
Lenders), provided, however, that no such change, waiver, modification or
-------- -------
variance shall be made to Section 11 hereof or this Section 22 without the
consent of each Secured Party adversely affected thereby, provided further that
----------------
any change, waiver, modification or variance affecting the rights and benefits
of a single Class (as defined below) of Secured Parties (and not all Secured
Parties in a like or similar manner) shall require the written consent of the
Requisite Creditors of such Class of Secured Parties. For the purpose of this
Agreement, the term "Class" shall mean each class of
-20-
Secured Parties, i.e., whether (x) the Bank Creditors as holders of the Credit
Agreement Obligations, (y) the Hedging Exchangers as holders of the Hedging
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (x) with respect to each of the Credit Agreement
Obligations, the Requisite Lenders and (y) with respect to the Hedging
Obligations, the holders of more than 50% of all obligations outstanding from
time to time under the Hedging Agreements.
23. MISCELLANEOUS. This Agreement shall create a continuing security
-------------
interest in the Collateral and shall (i) remain in full force and effect,
subject to release and/or termination as set forth in Section 19, (ii) be
binding upon each Pledgor, its successors and assigns; provided, however, that
-------- -------
no Pledgor shall assign any of its rights or obligations hereunder without the
prior written consent of the Pledgee (with the prior written consent of the
Requisite Lenders or to the extent required by subsection 10.6 of the Credit
Agreement, all of the Lenders), and (iii) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Parties and their respective successors, transferees and assigns. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION, SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES THAT
THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK. The headings of the several sections and
subsections in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto.
24. WAIVER OF JURY TRIAL. EACH PLEDGOR AND COLLATERAL AGENT HEREBY
--------------------
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including,
without limitation, contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. The Pledgors and Collateral Agent each
acknowledge that this waiver is a material inducement for the Pledgors and
Collateral Agent to enter into a business relationship, that each Pledgor and
Collateral Agent have already relied on this waiver in entering into this
Agreement and that each will continue to rely on this waiver in their related
future dealings. Each Pledgor and Collateral Agent further warrant and
represent that each has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING
-21-
(OTHER THAN BY A MUTUAL WRIITEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 25
AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
-------------------
Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Pledgor hereunder by executing a counterpart hereof and
delivering the same to the Pledgee.
26. RECOURSE. This Agreement is made with full recourse to the
--------
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
27. LIMITED OBLIGATIONS. It is the desire and intent of each Pledgor
-------------------
and the Secured Parties that this Agreement shall be enforced against each
Pledgor to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Notwithstanding
anything to the contrary contained herein, in furtherance of the foregoing, it
is noted that the obligations of each Pledgor have been limited as provided in
the Subsidiary Guaranty.
28. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
----------------------------------------------
PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH PLEDGOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NON-EXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANT DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION
20;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH PLEDGOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT;
(V) AGREES THAT COLLATERAL AGENT RETAINS THE RIGHT TO SERVE PROCESS
IN ANY OTHER MATTER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 27 RELATING TO THE
JURISDICTION AND VENUE SHALL BE BINDING AND
-22-
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1402 OR OTHERWISE.
29. ADMINISTRATIVE AGENT AS COLLATERAL AGENT. Administrative agent
----------------------------------------
has been appointed to act as Collateral Agent hereunder by Lenders and, by their
acceptance of the benefits hereof, Hedging Exchangers. Collateral Agent shall
at all times be the same Person that is appointed Administrative Agent under the
Credit Agreement. Written notice of resignation by Administrative Agent
pursuant to subsection 9.5 of the Credit Agreement shall also constitute notice
of resignation as Collateral Agent under this Agreement; removal of
Administrative Agent pursuant to subsection 9.5 of the Credit Agreement shall
also constitute removal as Collateral Agent under this Agreement; and
appointment of a successor Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute appointment of a successor Collateral
Agent under this Agreement. Upon the acceptance of any appointment as
Administrative Agent under subsection 9.5 of the Credit Agreement 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 or removed Collateral Agent under this Agreement, shall promptly
(i) transfer to such successor Collateral Agent all sums, securities and other
items of Collateral held hereunder, together with all records and other
documents necessary or appropriate in connection with the performance of the
duties of the successor Collateral Agent under this Agreement, and (ii) execute
and deliver to such successor Collateral Agent such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Collateral Agent of the
security interests created hereunder, whereupon such retiring or removed
Collateral Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Administrative Agent's resignation or
removal hereunder as Collateral Agent, 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 Collateral Agent hereunder.
[Remainder of page intentionally left blank]
-23-
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this Agreement
to be executed by their duly elected officers duly authorized as of the date
first written above.
DOMINO'S, INC.
as a Pledgor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BLUEFENCE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ANNEX A
-------
LIST OF SUBSIDIARIES
--------------------
I. [NAME OF SUBSIDIARY]
[LIST SUBSIDIARIES OF DOMINO'S, INC.]
II. [NAME OF SUBSIDIARY]
[LIST SUBSIDIARIES OF ABOVE BLUEFENCE]
ANNEX B
-------
LIST OF STOCK
-------------
I. DOMINO'S, INC.
Name of
Issuing Type of Number of Certificate Percentage Sub-clause of Section
Corporation Shares Shares No. Owned 3.2(a) of Pledge Agreement
----------- -------- ------------ ------------- ----------- --------------------------
[TO BE PROVIDED BY DOMINO'S, INC.]
II. BLUEFENCE, INC.
Name of
Issuing Type of Number of Certificate Percentage Sub-clause of Section
Corporation Shares Shares No. Owned 3.2(a) of Pledge Agreement
----------- -------- ------------ ------------- ----------- --------------------------
[TO BE PROVIDED BY BLUEFENCE, INC]
ANNEX C
-------
LIST OF NOTES
-------------
I. DOMINO'S, INC.
Sub-clause of Section 3.2(a)
Amount Maturity Date Obligor of Pledge Agreement
------------------------ ------------------------- -------------------------- --------------------------------
[TO BE PROVIDED BY DOMINO'S, INC.]
II. BLUEFENCE, INC.
Sub-clause of Section 3.2(a)
Amount Maturity Date Obligor of Pledge Agreement
------------------------ ------------------------- -------------------------- --------------------------------
[TO BE PROVIDED BY BLUEFENCE, INC.]
ANNEX D
-------
LIST OF LIMITED LIABILITY COMPANY INTERESTS
-------------------------------------------
I. DOMINO'S, INC.
Name of Issuing Type of Sub-clause of Section 3.2(a)
Corporation Interest Certificate No. Percentage Owned of Pledge Agreement
--------------------- ---------------- --------------------- ---------------------- ------------------------------
[TO BE PROVIDED BY DOMINO'S, INC.]
II. BLUEFENCE, INC.
Name of Issuing Type of Sub-clause of Section 3.2(a)
Corporation Interest Certificate No. Percentage Owned of Pledge Agreement
--------------------- ---------------- --------------------- ---------------------- ------------------------------
[TO BE PROVIDED BY BLUEFENCE, INC.]
ANNEX E
-------
LIST OF PARTNERSHIP INTERESTS
-----------------------------
I. DOMINO'S, INC.
Name of Type of Sub-clause of Section 3.2(a)
Partnership Interest Percentage Owned of Pledge Agreement
---------------------------- ------------------------ ----------------------- ----------------------------------
[TO BE PROVIDED BY DOMINO'S, INC.]
II. BLUEFENCE, INC.
Name of Type of Sub-clause of Section 3.2(a)
Partnership Interest Percentage Owned of Pledge Agreement
---------------------------- ------------------------ ----------------------- ----------------------------------
[TO BE PROVIDED BY BLUEFENCE, INC.]
ANNEX F
-------
LIST OF CHIEF EXECUTIVE OFFICES
-------------------------------
I. DOMINO'S, INC.
II. BLUEFENCE, INC.
ANNEX G
-------
Form of Agreement Regarding Uncertificated Securities, Limited Liability
------------------------------------------------------------------------
Company Interests and Partnership Interests
-------------------------------------------
AGREEMENT (as amended, modified or supplemented from time to time,
this "Agreement"), dated as of _________ __, _____, among each of the
undersigned pledgors (each a "Pledgor" and, collectively, the "Pledgors"),
__________, not in its individual capacity but solely as Collateral Agent (the
"Pledgee"), and __________, as the issuer of the Uncertificated Securities,
Limited Liability Company Interests and/or Partnership Interests (each as
defined below) (the "Issuer").
W I T N E S S E T H :
--------------------
WHEREAS, each Pledgor and the Pledgee are entering into a Borrower
Pledge Agreement, dated as of December 21, 1998 (as amended, amended and
restated, modified or supplemented from time to time, the "Pledge Agreement"),
under which, among other things, in order to secure the payment of the
Obligations (as defined in the Pledge Agreement), each Pledgor will pledge to
the Pledgee for the benefit of the Secured Parties (as defined in the Pledge
Agreement), and grant a security interest in favor of the Pledgee for the
benefit of the Secured Parties in, all of the right, title and interest of such
Pledgor in and to any and all (1) "uncertificated securities" (as defined in
Section 8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of
New York) ("Uncertificated Securities"), (2) Partnership Interests (as defined
in the Pledge Agreement) and (3) Limited Liability Company Interests (as defined
in the Pledge Agreement), in each case issued from time to time by the Issuer,
whether now existing or hereafter from time to time acquired by such Pledgor
(with all of such Uncertificated Securities, Partnership Interests and Limited
Liability Company Interests being herein collectively called the "Issuer Pledged
Interests"); and
WHEREAS, each Pledgor desires the Issuer to enter into this Agreement
in order to perfect the security interest of the Pledgee under the Pledge
Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of the
Issuer Pledge Interests and to provide for the rights of the parties under this
Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the Issuer,
and the Issuer hereby agrees, to comply with any and all instructions and orders
originated by the Pledgee (and its successors and assigns) regarding any and all
of the Issuer Pledged Interests without the further consent by the registered
owner (including the respective Pledgor), and not to comply with any
instructions or orders regarding any or all of the Issuer Pledged Interests
originated by
any person or entity other than the Pledgee (and its successors and assigns) or
a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Pledgee) has been received by
it, and (ii) the security interest of the Pledgee in the Issuer Pledged
Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by
the Pledgors of, and the granting by the Pledgors of a security interest in, the
Issuer Pledged Interests to the Pledgee, for the benefit of the Secured Parties,
does not violate the charter, by-laws, partnership agreement, membership
agreement or any other agreement governing the Issuer or the Issuer Pledged
Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to any Pledgor by the
Issuer in respect of the Issuer will also be sent to the Pledgee at the
following address:
▇.▇. ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
5. Until the Pledgee shall have delivered written notice to the
Issuer that all of the Obligations have been paid in full and this Agreement is
terminated, the Issuer will send any and all redemptions, distributions,
interest or other payments in respect of the Issuer Pledged Interests from the
Issuer for the account of the Pledgor only by wire transfers to the following
address:
_____________________
_____________________
_____________________
_____________________
[Account Information]
ABA No.: ____________________
Account in the Name of: ___________
Account No.: ____________________
6. Except as expressly provided otherwise in Sections 4 and 5, all
notices, instructions, orders and communications hereunder shall be sent or
delivered by mail, telex, telecopy or overnight courier service and all such
notices and communications shall, when mailed, telexed, telecopied or sent by
overnight courier, be effective when deposited in the mails or delivered to the
overnight courier, prepaid and properly addressed for delivery on such or the
next Business Day, or sent by telex or telecopier, except that notices and
communications to the
Pledgee shall not be effective until received by the Pledgee. All notices and
other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
(b) if to the Pledgee, at:
▇.▇. ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Issuer, at:
_______________________
_______________________
_______________________
Attention: ______________
Telephone No.:___________
Telecopier No.:___________
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
7. This Agreement shall be binding upon the successors and assigns of
each Pledgor and the Issuer and shall inure to the benefit of and be enforceable
by the Pledgee and its successors and assigns. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all of
which shall constitute one instrument. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement which shall
remain binding on all parties hereto. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
except in writing signed by the Pledgee, the Issuer and any Pledgor which at
such time owns any Issuer Pledged Interests.
8. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its principles of
conflict of laws.
IN WITNESS WHEREOF, each Pledgor, the Pledgee and the Issuer have
caused this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
[_____________________________________________],
as a Pledgor
By_____________________________
Name:
Title:
[_____________________________________________],
as a Pledgor
By____________________________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK,
not in its individual capacity but solely as
Collateral Agent and Pledgee
By____________________________________________
Name:
Title:
[_____________________________________________],
the Issuer
By____________________________________________
Name:
Title: