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Exhibit 10.31
EXHIBIT C-1
FORM OF PLEDGE AGREEMENT
Pledge Agreement, dated as of _____ __, 1997, made by WEST COAST
ENTERTAINMENT CORPORATION, a Delaware corporation (the "Pledgor"), in favor of
PNC BANK, NATIONAL ASSOCIATION, as agent (in such capacity, the "Agent") for the
banks and other financial institutions (the "Banks") parties to the Credit
Agreement (as defined below).
WITNESSETH:
WHEREAS, the Pledgor and certain of its subsidiaries
(collectively, the "Borrowers"), the Banks and the Agent have entered into a
Credit Agreement, dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement");
WHEREAS, pursuant to the provisions of the Credit Agreement and
upon the terms and subject to the conditions set forth therein, the Banks have
severally agreed to make certain loans to, and to issue or participate in
letters of credit for the account of, the Borrowers;
WHEREAS, the Pledgor is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) of the entities listed on
Schedule I hereto (individually, an "Issuer," and collectively, the "Issuers");
and
WHEREAS, it is a condition precedent to the obligation of the
Banks to make their respective loans to, and to issue or participate in letters
of credit for the account of, the Borrowers under the Credit Agreement that the
Pledgor shall have executed and delivered this Pledge Agreement to the Agent for
the ratable benefit of the Banks.
NOW, THEREFORE, in consideration of the premises and to induce the
Agent and the Banks to enter into the Credit Agreement and make their respective
loans to, and to issue or participate in letters of credit for the account of,
the Borrowers thereunder, the Pledgor hereby agrees with the Agent, for the
ratable benefit of the Banks, as follows:
1. Defined Terms. Unless otherwise defined herein, terms which
are defined in the Credit Agreement and used herein are so used as so defined,
and the following terms shall have the following meanings:
"Code" means the Uniform Commercial Code from time to
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time in effect in the Commonwealth of Pennsylvania.
"Collateral" means the Pledged Stock and all Proceeds.
"Obligations" shall mean the unpaid principal amount of, and
interest on (including, without limitation, interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to a Borrower,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Notes and all other obligations and
liabilities of the Borrowers to the Agent or any Bank, whether direct
or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, the Notes, the Letters of
Credit, the Applications, this Pledge Agreement, the other Loan
Documents, any Interest Rate Hedge Agreement with a Bank and any other
document made, delivered or given in connection therewith or herewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the Agent or any Bank that are
required to be paid by the Borrowers pursuant to the terms of the
Credit Agreement) or otherwise.
"Pledge Agreement" means this Pledge Agreement, as amended,
supplemented or otherwise modified from time to time.
"Pledged Stock" means the shares of capital stock of the Issuers
listed on Schedule I hereto, together with all stock certificates,
options or rights of any nature whatsoever that may be issued or
granted by any Issuer to the Pledgor while this Pledge Agreement is in
effect.
"Proceeds" means all "proceeds" as such term is defined in Section
9306(a) of the Code and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto.
2. Pledge; Grant of Security Interest. The Pledgor hereby agrees
on the date hereof to deliver to the Agent, for the ratable benefit of the Banks
and the Agent, the Pledged Stock and hereby grants to the Agent, for the ratable
benefit of the Banks and the Agent, a first priority security interest in the
Collateral, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to the Agent of
each certificate representing one or more shares of
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Pledged Stock, the Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor with, if the Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents and
warrants that:
(a) the Pledgor is the owner of the issued and outstanding shares
of all capital stock of each Issuer and the shares of Pledged Stock
listed on Schedule I constitute all of such issued and outstanding
shares;
(b) all the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable;
(c) the Pledgor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Stock listed on Schedule I,
free of any and all Liens or options in favor of, or claims of, any
other Person, except the Lien created by this Pledge Agreement; and
(d) upon delivery to the Agent of the stock certificates
evidencing the Pledged Stock, the Lien granted pursuant to this Pledge
Agreement will constitute a valid, perfected first priority Lien on the
Collateral, enforceable as such against all creditors of the Pledgor
and any Persons purporting to purchase any Collateral from the Pledgor.
5. Covenants. The Pledgor covenants and agrees with the Agent
and the Banks that from and after the date of this Pledge Agreement until the
Obligations are paid in full and the Commitments are terminated and no Letter of
Credit remains outstanding:
(a) If the Pledgor shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any shares of the Pledged Stock, or otherwise in respect
thereof, the Pledgor shall accept the same as the agent of the Agent
and the Banks, hold the same in trust for the Agent and the Banks and
deliver the same to the Agent in the exact form received, duly indorsed
by the Pledgor to the Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by the
Pledgor and with, if the Agent so requests, signature guaranteed, to be
held by the Agent, subject to the terms hereof, as additional
collateral security for the Obligations. Any sums paid upon or in
respect of the
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Pledged Stock upon the liquidation or dissolution of any Issuer shall
be paid over to the Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution
of capital shall be made on or in respect of the Pledged Stock or any
property shall be distributed upon or with respect to the Pledged Stock
pursuant to the recapitalization or reclassification of the capital of
such Issuer or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Agent to be held by it hereunder
as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Pledged
Stock shall be received by the Pledgor, the Pledgor shall, until such
money or property is paid or delivered to the Agent, hold such money or
property in trust for the Banks, segregated from other funds of the
Pledgor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Agent, the Pledgor
will not (i) vote to enable, or take any other action to permit, any
Issuer to issue any stock or other equity securities of any nature or
to issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any
nature of such Issuer, (ii) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral, and (iii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of
the Collateral, or any interest therein, except for the Lien provided
for by this Pledge Agreement. The Pledgor will defend the right, title
and interest of the Agent and the Banks in and to the Collateral
against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
the Agent, and at the sole expense of the Pledgor, the Pledgor will
promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Agent may reasonably
request for the purposes of obtaining or preserving the full benefits
of this Pledge Agreement and of the rights and powers herein granted.
If any amount payable under or in connection with any of the Collateral
shall be or become evidenced by any promissory note, other instrument
or chattel paper, such note, instrument or chattel paper shall be
immediately delivered to the Agent, duly endorsed in a manner
satisfactory to the Agent, to be held as Collateral pursuant to this
Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Agent and the Banks
harmless from, any and all liabilities with
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respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with
this Pledge Agreement or the granting of security hereunder or the
exercising of any rights or remedies hereunder.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing and the Agent shall have given notice to
the Company of the Agent's intent to exercise its rights pursuant to paragraph 7
below, the Pledgor shall be permitted to receive all dividends (other than
dividends paid in additional capital stock of any Issuer) paid in the normal
course of business of each Issuer and consistent with past practice, to the
extent permitted in the Credit Agreement, in respect of the Pledged Stock and to
exercise all voting and corporate rights with respect to the Pledged Stock,
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which, in the Agent's reasonable judgment, would impair the
Collateral or which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, the Notes or any of the other Loan Documents.
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7. Rights of the Banks and the Agent.
(a) If an Event of Default shall occur and be continuing and
the Agent shall give notice of its intent to exercise its rights hereunder to
the Company, (i) the Agent shall have the right to receive any and all cash
dividends paid in respect of the Pledged Stock and make application thereof to
the Obligations in such order as the Agent may determine, and (ii) all shares of
the Pledged Stock shall be registered in the name of the Agent or its nominee,
and the Agent, or its nominee may thereafter exercise (A) all voting, corporate
and other rights pertaining to such shares of Pledged Stock at any meeting of
shareholders of any Issuer or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such shares of the Pledged Stock as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by the Pledgor or the Agent of any right, privilege
or option pertaining to such shares of the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the Pledged Stock
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability except to account for property actually received by it and except for
its gross negligence or willful misconduct, but the Agent shall have no duty to
the Pledgor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(b) The rights of the Agent and the Banks hereunder shall not
be conditioned or contingent upon the pursuit by the Agent or any Bank of any
right or remedy against any other Person which may be or become liable in
respect of all or any part of the Obligations or against any collateral security
therefor, guarantee therefor or right of offset with respect thereto. Neither
the Agent nor any Bank shall be liable for any failure to demand, collect or
realize upon all or any part of the Collateral or for any delay in doing so, nor
shall the Agent be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
8. Remedies. If an Event of Default shall have occurred and be
continuing, the Agent, on behalf of the Banks, may exercise, in addition to all
other rights and remedies granted to it in this Pledge Agreement and in any
other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code. Without
limiting the generality of the foregoing, the
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Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below or otherwise specifically required hereunder) to or upon the Pledgor,
any Issuer or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign or give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Agent or any Bank or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Agent or any Bank shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in the Pledgor, which right or equity is hereby waived or
released. The Agent shall apply any Proceeds from time to time held by it and
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred in respect thereof or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of the
Agent and the Banks hereunder, including, without limitation, reasonable
attorneys' fees and disbursements of counsel to the Agent, to the payment in
whole or in part of the Obligations, in such order as the Agent may elect, and
only after such application and after the payment by the Agent of any other
amount required by any provision of law, including, without limitation, Section
9504(a)(3) of the Code, need the Agent account for the surplus, if any, to the
Pledgor. To the extent permitted by applicable law, the Pledgor waives all
claims, damages and demands it may acquire against the Agent or any Bank arising
out of the lawful exercise by them of any rights hereunder. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 Business Days
before such sale or other disposition. The Pledgor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral are
insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Agent or any Bank to collect such deficiency.
9. Registration Rights; Private Sales.
(a) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state
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securities laws or otherwise, and may resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Agent shall be
under no obligation to delay a sale of any of the Pledged Stock for the period
of time necessary to permit any Issuer to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
(b) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock pursuant to this paragraph 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Pledgor further agrees that a breach of any of the
covenants contained in this paragraph 9 will cause irreparable injury to the
Agent and the Banks, that the Agent and the Banks have no adequate remedy at law
in respect of such breach and, as a consequence, that each and every covenant
contained in this paragraph 9 shall be specifically enforceable against the
Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants.
10. Limitation on Duties Regarding Collateral. The Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Agent deals with similar
securities and property for its own account. Neither the Agent, any Bank nor any
of their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Pledgor or otherwise.
11. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
12. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not
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invalidate or render unenforceable such provisions in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used in this
Pledge Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
14. No Waiver; Cumulative Remedies. Neither the Agent nor any
Bank shall by any act (except by a written instrument pursuant to paragraph 15
hereof) be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default of any obligation under any Loan Document or in any
breach of any of the terms and conditions hereof or thereof. No failure to
exercise, nor any delay in exercising, on the part of the Agent or any Bank of
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Agent or any Bank of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Pledge Agreement may be amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Agent, provided that any provision of this Pledge Agreement
may be waived by the Agent in a letter or agreement executed by the Agent or by
telex or facsimile transmission from the Agent. This Pledge Agreement shall be
binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Agent and the Banks and their respective successors and assigns.
THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
16. Notices. All notices hereunder to the Agent, the Pledgor or
any Issuer to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given when delivered or sent in the manner and to the respective addresses as
provided in Subsection 9.2 of the Credit Agreement or in the case of each Issuer
at its address set forth on Schedule II hereto.
17. Irrevocable Authorization and Instruction to Issuers. The
Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Agent in writing that (a) states that an
Event of Default has occurred and
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is continuing and (b) is otherwise in accordance with the terms of this Pledge
Agreement, without any other or further instructions from the Pledgor, and the
Pledgor agrees that each Issuer shall be fully protected in so complying.
18. Authority of Agent. The Pledgor acknowledges that the rights
and responsibilities of the Agent under this Pledge Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Pledge Agreement shall, as
between the Agent and the Banks, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among them,
but, as between the Agent and the Pledgor, the Agent shall be conclusively
presumed to be acting as agent for the Banks with full and valid authority so to
act or refrain from acting, and neither the Pledgor nor any Issuer shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
19. Submission to Jurisdiction; Waivers.
(a) The Pledgor hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Pledge Agreement, or for
recognition and enforcement of any judgment in respect thereof to
the non-exclusive general jurisdiction of the courts of the
Commonwealth of Pennsylvania, the courts of the United States of
America for the Eastern District of Pennsylvania, and appellate
courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Pledgor at its address set forth
in the Credit Agreement or at such other address of which the
Agent shall have been notified; and
(iv) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law
or shall limit the right to ▇▇▇
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in any other jurisdiction.
(b) THE PLEDGOR HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (A) ABOVE.
20. Counterparts. This Pledge Agreement may be executed by one or
more of the parties to this Pledge Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
ATTEST: WEST COAST ENTERTAINMENT
CORPORATION
___________________________ By:___________________________
Name:______________________
Title:_____________________
[seal]
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ACKNOWLEDGMENT AND CONSENT
Each Issuer referred to in the foregoing Pledge Agreement hereby
acknowledges receipt of a copy thereof and agrees to be bound thereby and comply
with the terms thereof insofar as such terms are applicable to it. Each Issuer
agrees to notify the Agent promptly in writing of the occurrence of any of the
events described in paragraph 5(a) of the Pledge Agreement. Each Issuer further
agrees that the terms of paragraph 9(b) of the Pledge Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
under or pursuant to or arising out of paragraph 9 of the Pledge Agreement.
VIDEOSMITH, INCORPORATED
By:_________________________
Name:_______________________
WEST COAST FRANCHISING COMPANY
By:_________________________
Name:_______________________
Title:______________________
Title: _____________________
PALMER WEST COAST CORPORATION
By:_________________________
Name:_______________________
Title:______________________
▇▇▇▇▇▇ VIDEO CORPORATION
By:_________________________
Name:_______________________
Title:______________________
▇▇▇▇▇▇ INVESTMENT CORPORATION
By:_________________________
Name:_______________________
Title:______________________
[signatures continued on next page]
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RKT MERGER COMPANY
By:_________________________
Name:_______________________
Title:______________________
SHOWTIME, INCORPORATED
By:_________________________
Name:_______________________
Title:______________________
VIDEO GIANT, INC.
By:_________________________
Name:_______________________
Title:______________________
VIDEO KING OF ▇▇▇▇▇▇ COUNTY, INC.
By:_________________________
Name:_______________________
Title:______________________
KING VIDEO ENTERPRISES,INC.
By:_________________________
Name:_______________________
Title:______________________
WEST COAST FINANCING CORPORATION
By:_________________________
Name:_______________________
Title:______________________
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SCHEDULE I
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
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STOCK PERCENTAGE
CLASS OF CERTIFICATE NO. OF OF
ISSUER STOCK* NO. SHARES ISSUED SHARES
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* Common unless otherwise indicated.
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SCHEDULE II
TO PLEDGE AGREEMENT
ADDRESSES OF ISSUERS