EXHIBIT 10.48
================================================================================
PLEDGE AGREEMENT
among
CROMPTON CORPORATION,
CERTAIN OF ITS SUBSIDIARIES
FROM TIME TO TIME PARTY HERETO
and
DEUTSCHE BANK AG NEW YORK BRANCH,
as PLEDGEE
--------------------------------
Dated as of August 16, 2004
--------------------------------
================================================================================
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, restated, modified and/or supplemented
from time to time, this "Agreement"), dated as of August 16, 2004, among each of
the undersigned pledgors (each, a "Pledgor" and, together with any other entity
that becomes a pledgor hereunder pursuant to Section 30 hereof, the "Pledgors")
and Deutsche Bank AG New York Branch, as collateral agent for the benefit of the
Lender Creditors (as defined below) and as collateral agent for the benefit of
all of the Secured Creditors (as defined below) (in such capacities and (in
either case) together with any successor collateral agent, the "Pledgee").
Except as otherwise defined herein, all capitalized terms used herein and
defined in the Credit Agreement (as defined below) shall be used herein as
therein defined. Notwithstanding anything herein to the contrary, (i) for
purposes of Section 3.1(i)(A) hereof and the first reference to "Pledgee" in
Section 3.2(c) hereof, the term "Pledgee" shall mean Deutsche Bank AG New York
Branch (together with any successor collateral agent), in its separate
individual capacity as collateral agent for the benefit of the Lender Creditors
with respect to the Priority Credit Document Obligations, (ii) for purposes of
Section 3.1(i)(B) hereof and the second reference to "Pledgee" in Section 3.2(c)
hereof, the term "Pledgee" shall mean Deutsche Bank AG New York Branch (together
with any successor collateral agent), in its separate individual capacity as
collateral agent for the benefit of all of the Secured Creditors with respect to
the Obligations not constituting Priority Credit Document Obligations, and (iii)
for purposes of all other provisions in this Agreement, the term "Pledgee" shall
mean (x) Deutsche Bank AG New York Branch (together with any successor
collateral agent), in its separate individual capacity as collateral agent for
the benefit of the Lender Creditors with respect to the Priority Credit Document
Obligations and (y) Deutsche Bank AG New York Branch (together with any
successor collateral agent), in its separate individual capacity as collateral
agent for the benefit of all of the Secured Creditors with respect to the
Obligations not constituting Priority Credit Document Obligations.
W I T N E S S E T H :
WHEREAS, Crompton Corporation, a Delaware corporation (the "Borrower"),
the lenders from time to time party thereto (the "Lenders"), Deutsche Bank AG,
Cayman Islands Branch, as Deposit Bank, and Deutsche Bank AG New York Branch, as
administrative agent (together with any successor administrative agent, the
"Administrative Agent") have entered into a Credit Agreement, dated as of August
16, 2004, providing for the making of Loans to the Borrower, and the issuance
of, and participation in, Letters of Credit for the account of the Borrower, all
as contemplated therein (the Lenders, each Issuing Lender, the Administrative
Agent and the Pledgee are herein called the "Lender Creditors") (as used herein,
the term "Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may from time to time be amended, modified, extended,
renewed, replaced, restated, supplemented and/or refinanced from time to time,
and including any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) of
all or any portion of, the indebtedness under such credit agreement or any
successor credit agreement, whether or not with the same agent, trustee,
representative, lenders or holders);
WHEREAS, the Borrower and/or one or more of the other Pledgors may at
any time and from time to time enter into one or more Interest Rate Protection
Agreements or Other Hedging Agreements with one or more Lenders or any affiliate
thereof (each such Lender or affiliate, even if the respective Lender
subsequently ceases to be a Lender under the Credit Agreement for any reason,
together with such Lender's or affiliate's successors and assigns, if any,
collectively, the "Hedging Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Lender Creditors and the
Hedging Creditors the payment and performance when due of all Guaranteed
Obligations as described (and defined) therein;
WHEREAS, the Borrower has, prior to the date hereof, issued (x)
$110,000,000 in aggregate principal amount of its 7.75% debentures due 2023 (the
"Existing 2023 Senior Notes", and with the holders from time to time of such
Existing 2023 Senior Notes being herein called the "Existing 2023 Senior
Noteholders") pursuant to the Indenture, dated as of February 1, 1993, between
the Borrower (as successor-in-interest to Witco Corporation) and Deutsche Bank
Trust Company Americas (as successor-in-interest to JPMorgan Chase Bank (which
in turn was a successor-in-interest to The Chase Manhattan Bank, N.A.)), as
trustee (together with any successor trustee, the "Trustee"), as amended by the
First Supplemental Indenture thereto, dated as of February 1, 1996, among the
Borrower, the Trustee and U.S. Bank, National Association, as trustee for the
Existing 2006 Senior Notes (as further amended, modified or supplemented from
time to time, the "Existing Senior Notes Indenture"), and (y) $150,000,000 in
aggregate principal amount of its 6.875% debentures due 2026 (the "Existing 2026
Senior Notes", and with the holders from time to time of such Existing 2026
Senior Notes being herein called the "Existing 2026 Senior Noteholders"; and (i)
the Existing 2026 Senior Noteholders, together with the Existing 2023 Senior
Noteholders, are collectively referred to herein as the "Existing Senior
Noteholders" and (ii) the Existing 2023 Senior Notes, together with the Existing
2026 Senior Notes, are collectively referred to herein as the "Existing Senior
Notes") pursuant to the Existing Senior Notes Indenture;
WHEREAS, the Borrower and/or one or more of the other Pledgors have
entered into, or may in the future enter into, one or more agreements or
arrangements providing for (x) cash overdraft protection to be made available to
the Borrower and/or one or more of the other Pledgors as part of their cash
management system and/or (y) credit card lines of credit to be made available to
certain employees of the Borrower and/or one or more of the other Pledgors, in
each case, with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Additional
Secured Creditors"), which agreements or arrangements may, in accordance with
the terms thereof and to the extent permitted by the Credit Agreement and the
other Credit Documents, be (x) guaranteed by the Borrower and/or one or more of
the other Pledgors and (y) secured on an equal and ratable basis in an aggregate
amount not to exceed $30,000,000 with the other Obligations not constituting
Priority Credit Document Obligations as hereinafter provided (each such
agreement or arrangement, an "Additional Secured Agreement");
2
WHEREAS, the Lender Creditors, the Hedging Creditors, the Existing
Senior Noteholders and the Additional Secured Creditors are collectively
referred to herein as the "Secured Creditors";
WHEREAS, it is a condition precedent to (i) the making of Loans to, and
the issuance of, and participation in, Letters of Credit for the account of, the
Borrower under the Credit Agreement, (ii) the Hedging Creditors entering into
Interest Rate Protection Agreements and Other Hedging Agreements, and (iii) the
Additional Secured Creditors entering into Additional Secured Agreements, that
each Pledgor shall have executed and delivered to the Pledgee this Agreement;
WHEREAS, because of the condition precedent described in the immediately
preceding recital, it is a requirement under the Existing Senior Notes Indenture
that the Borrower's obligations in respect of the Existing Senior Notes be
secured on an equal and ratable basis with a portion of the other Obligations
as, and to the extent, provided therein and herein; and
WHEREAS, each Pledgor obtained benefits from the issuance by the
Borrower of the Existing Senior Notes and will obtain benefits from the
incurrence of Loans by the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower under the Credit Agreement,
the entering into by the Borrower and/or one or more of the other Pledgors of
Interest Rate Protection Agreements or Other Hedging Agreements and the entering
into by the Borrower and/or one or more of the other Pledgors of Additional
Secured Agreements and, accordingly, desires to execute this Agreement in order
to satisfy the conditions described in the two preceding recitals and to induce
the Lenders to make Loans to the Borrower and issue, and/or participate in,
Letters of Credit for the account of the Borrower, the Hedging Creditors to
enter into Interest Rate Protection Agreements or Other Hedging Agreements with
the Borrower and/or one or more of the other Pledgors and the Additional Secured
Creditors to enter into Additional Secured Agreements with the Borrower and/or
one or more of the other Pledgors;
NOW, THEREFORE, in consideration of the foregoing and other 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 for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor for
the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor
at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding),
reimbursement obligations under Letters of
3
Credit, fees, costs and indemnities) of such Pledgor and each other Pledgor
to the Lender Creditors, whether now existing or hereafter incurred under,
arising out of, or in connection with, the Credit Agreement and the other
Credit Documents to which such Pledgor and each other Pledgor is a party
(including, without limitation, in the event such Pledgor is a Subsidiary
Guarantor, all such obligations, liabilities and indebtedness of such
Pledgor and each other Pledgor under the Subsidiaries Guaranty) and the due
performance and compliance by such Pledgor and each other Pledgor with all
of the terms, conditions and agreements contained in the Credit Agreement
and in such other Credit Documents (all such obligations, liabilities and
indebtedness under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements being herein collectively called the
"Credit Document 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, all interest that accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor
at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding) owing by
such Pledgor and each other Pledgor to the Hedging Creditors, whether now
existing or hereafter incurred under, arising out of or in connection with
any Interest Rate Protection Agreement or Other Hedging Agreement, whether
such Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereinafter arising (including, without limitation, in the case
of a Pledgor that is a Subsidiary Guarantor, all obligations, liabilities
and indebtedness of such Pledgor and each other Pledgor under the
Subsidiaries Guaranty in respect of the Interest Rate Protection Agreements
and Other Hedging Agreements), and the due performance and compliance by
such Pledgor and each other Pledgor with all of the terms, conditions and
agreements contained in each such Interest Rate Protection Agreement and
Other Hedging Agreement (all such obligations, liabilities and indebtedness
under this clause (ii) being herein collectively called the "Hedging
Obligations");
(iii) 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, principal, premium and interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of the Borrower
at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding)) owing
by the Borrower to the Existing Senior Noteholders, whether now existing or
hereafter incurred under, arising out of or in connection with the Existing
Senior Notes and the other Existing Senior Notes Documents and the due
performance and compliance by the Borrower with all of the terms, conditions
and agreements contained in the Existing Senior Notes Documents (all such
obligations, liabilities and indebtedness under this clause (iii) being
herein collectively called the "Existing Senior Notes Obligations");
4
(iv) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, all interest that accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor
at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding) owing by
such Pledgor to the Additional Secured Creditors, whether now existing or
hereafter incurred under, arising out of or in connection with any
Additional Secured Agreement, whether such Additional Secured Agreement is
now in existence or hereinafter arising, and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements
contained in each such Additional Secured Agreement (all such obligations,
liabilities and indebtedness under this clause (iv) being herein
collectively called the "Additional Secured Obligations");
(v) any and all sums advanced by the Pledgee in order to preserve
the Collateral or preserve its security interest in the Collateral;
(vi) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of such Pledgor referred to
in clauses (i) through (iv) above, after an Event of Default 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
(vii) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 8.1 of this Agreement;
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vii) of this Section 1 being herein 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; provided that, notwithstanding anything to the contrary
contained herein, (x) obligations, liabilities and indebtedness which would
otherwise constitute Additional Secured Obligations as defined in clause (iv) of
this definition shall not constitute "Obligations" for purposes of (or be
secured pursuant to) this Agreement or any other Security Document unless the
Borrower shall have delivered to the Collateral Agent a Notice of Security
Entitlement (as defined in the Security Agreement) pursuant to, and in
accordance with the terms of, the Security Agreement and (y) the Additional
Secured Creditors, by accepting the benefits of this Agreement and the other
Security Documents, hereby expressly acknowledge and agree that the aggregate
amount that they shall be entitled to receive from the exercise of remedies in
respect of (and the aggregate amount of Additional Secured Obligations to be
secured by) the Collateral under this Agreement, as well as the "collateral"
under all other Security Documents, will not exceed $30,000,000 in the
aggregate.
2. DEFINITIONS. (a) Unless otherwise defined herein, all 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.
5
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Additional Secured Agreement" shall have the meaning provided in the
recitals hereto.
"Additional Secured Creditor" shall have the meaning provided in the
recitals hereto.
"Additional Secured Obligations" shall have the meaning set forth in
Section 1(iv) hereof.
"Administrative Agent" shall have the meaning set forth in the recitals
hereto.
"Adverse Claim" shall have the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Borrower" shall have the meaning set forth in the recitals hereto.
"Certificated Security" shall have the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Clearing Corporation" shall have the meaning given such term in Section
8-102(a)(5) of the UCC.
"Collateral" shall have the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" shall mean any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Credit Agreement" shall have the meaning set forth in the recitals
hereto.
"Credit Document Obligations" shall have the meaning set forth in
Section 1(i) hereof.
"Domestic Corporation" shall have the meaning set forth in the
definition of "Stock."
"Domestic Receivables Facility Property" shall mean, so long as the New
Domestic Receivables Facility is in effect, any promissory notes issued by, and
any Equity Interests in, Crompton Receivables Corporation or any successor
entity that is a purchaser of receivables from the Borrower and/or one or more
Domestic Subsidiaries thereof pursuant to the New Domestic Receivables Facility
and any accounts, collections, records and other property sold pursuant to (or
otherwise subject to a Lien of) the New Domestic Receivables Facility and
sufficiently described therein within the meaning of Section 9-108 of the UCC,
in each case to
6
the extent that a grant of a security interest in any such property is
prohibited by the terms of the New Domestic Receivables Facility.
"Event of Default" shall mean any (A) Event of Default (or similar term)
under, and as defined in, (i) the Credit Agreement, (ii) any Interest Rate
Protection Agreement or Other Hedging Agreement entered into with a Hedging
Creditor and (iii) the Existing Senior Notes Indenture and shall in any event
include, without limitation, any payment default on any of the Obligations after
the expiration of any applicable grace period and (B) any payment default (after
the expiration of any applicable grace periods) of any Additional Secured
Obligations.
"Exempted Foreign Entity" shall mean (a) any Foreign Corporation and any
limited liability company organized under the laws of a jurisdiction other than
the United States or any State or Territory thereof that, in any such case, is
treated for United States income tax purposes as a corporation or an association
taxable as a corporation for U.S. Federal income tax purposes and (b) Crompton
International Corporation, provided that Crompton International Corporation
shall cease to be an Exempted Foreign Entity to the extent that it is otherwise
required to be a Subsidiary Guarantor pursuant to the Credit Agreement.
"Existing Senior Note Event" shall have the meaning in Section 20(b)
hereof.
"Existing Senior Noteholders" shall have the meaning provided in the
recitals of hereto.
"Existing Senior Notes" shall have the meaning provided in the recitals
hereto
"Existing Senior Notes Documents" shall mean, collectively, the Existing
2023 Senior Notes, the Existing 2026 Senior Notes and the Existing Senior Notes
Indenture.
"Existing Senior Notes Obligations" shall have the meaning provided in
the definition of "Obligations" in this Section 1(iii) hereof.
"Existing 2023 Senior Noteholders" shall have the meaning provided in
the recitals of this Agreement.
"Existing 2023 Senior Notes" shall have the meaning provided in the
recitals of this Agreement.
"Existing 2026 Senior Noteholders" shall have the meaning provided in
the recitals of this Agreement.
"Existing 2026 Senior Notes" shall have the meaning provided in the
recitals of this Agreement.
"Financial Asset" shall have the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" shall have the meaning set forth in the definition
of "Stock".
7
"Hedging Creditors" shall have the meaning provided in the recitals
hereto.
"Hedging Obligations" shall have the meaning provided in the definition
of "Obligations" in this Section 1(ii) hereof.
"Indemnitees" shall have the meaning set forth in Section 11 hereof.
"Instrument" shall have the meaning given such term in Section
9-102(a)(47) of the UCC.
"Investment Property" shall have the meaning given such term in Section
9-102(a)(49) of the UCC.
"Lender Creditors" shall have the meaning set forth in the recitals
hereto.
"Lenders" shall have the meaning set forth in the recitals hereto.
"Limited Liability Company Assets" shall mean all assets, whether
tangible 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 Pledgor or represented by any Limited
Liability Company Interest.
"Limited Liability Company Interests" shall mean the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company
"Location" of any Pledgor has the meaning given such term in Section
9-307 of the UCC.
"New Domestic Receivables Facility" shall have the meaning provided in
the Credit Agreement; provided that, in the case of any refinancing,
replacement, extension or restatement of the New Domestic Receivables Facility
in effect on the Effective Date, in order for such New Domestic Receivables
Facility to be considered the "New Domestic Receivables Facility" for purposes
of this Agreement, such facility must expressly state that it constitutes the
"New Domestic Receivables Facility" for purposes of the Security Documents and
the Collateral Agent shall have acknowledged it as such in writing.
"Non-Voting Equity Interests" shall mean all Equity Interests of any
Person which are not Voting Equity Interests.
"Notes" shall mean all promissory notes from time to time issued to, or
held by, each Pledgor.
"Obligations" shall have the meaning set forth in Section 1 hereof.
"Partnership Assets" shall mean all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest
8
in other partnerships), at any time owned by any Pledgor or represented by any
Partnership Interest.
"Partnership Interest" shall mean the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership
"Pledged Notes" shall mean all Notes at any time pledged or required to
be pledged hereunder.
"Pledgee" shall have the meaning set forth in the first paragraph
hereof.
"Pledgor" shall have the meaning set forth in the first paragraph
hereof.
"Priority Credit Document Obligations" shall have the meaning provided
in the Security Agreement.
"Proceeds" shall have the meaning given such term in Section
9-102(a)(64) of the UCC.
"Registered Organization" shall have the meaning given such term in
Section 9-102(a)(70) of the UCC.
"Required Lenders" shall have the meaning given such term in the Credit
Agreement.
"Required Secured Creditors" shall have the meaning provided in the
Security Agreement.
"Secured Creditors" shall have the meaning set forth in the recitals
hereto.
"Secured Debt Agreements" shall mean and include this Agreement, the
other Credit Documents, the Interest Rate Protection Agreements and Other
Hedging Agreements entered into with a Hedging Creditor, the Additional Secured
Agreements entered into with an Additional Secured Creditor and the Existing
Senior Notes Documents.
"Securities Account" shall have the meaning given such term in Section
8-501(a) of the UCC.
"Securities Act" shall mean the Securities Act of 1933, as amended, as
in effect from time to time.
"Securities Intermediary" shall have the meaning given such term in
Section 8-102(14) of the UCC.
"Security" and "Securities" shall have the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock
and all Notes.
9
"Security Entitlement" shall have the meaning given such term in Section
8-102(a)(17) of the UCC.
"Stock" shall mean (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof or the District
of Columbia (each, a "Domestic Corporation"), all of the issued and outstanding
shares of capital stock of any Domestic Corporation at any time owned by any
Pledgor and (y) with respect to entities treated as corporations for U.S.
federal income tax purposes but that are not Domestic Corporations (each, a
"Foreign Corporation"), all of the issued and outstanding shares of capital
stock (or other similar Equity Interest) of any Foreign Corporation at any time
owned by any Pledgor.
"Termination Date" shall have the meaning set forth in the Security
Agreement.
"Transmitting Utility" has the meaning given such term in Section
9-102(a)(80) of the UCC.
"Trustee" shall have the meaning provided in the recitals of this
Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time; provided that all references herein to specific
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.
"Uncertificated Security" shall have the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Equity Interests" of any Person shall mean all classes of Equity
Interests of such Person entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. (i) Each Pledgor does hereby (A) assign and transfer unto
the Pledgee in its capacity solely as collateral agent for the equal and ratable
benefit of the Lender Creditors, and does hereby pledge and grant to the Pledgee
in its capacity solely as collateral agent for the equal and ratable benefit of
the Lender Creditors, in each case as security for the prompt payment and
performance when due of all Priority Credit Document Obligations, a continuing
security interest in all of the right, title and interest of such Pledgor in, to
and under all of the following property (and all rights therein) of such
Pledgor, or in which or to which such Pledgor has any rights, in each case
whether now existing or hereafter from time to time acquired, and (B) separately
assign and transfer unto the Pledgee in its capacity solely as collateral agent
for the equal and ratable benefit of all of the Secured Creditors, and does
hereby separately pledge and grant to the Pledgee in its capacity solely as
collateral agent for the equal and ratable benefit of all of the Secured
Creditors, in each case as security for the prompt payment and performance when
due of all Obligations not constituting Priority Credit Document Obligations, a
separate continuing security interest in all of the right, title and interest of
such Pledgor in, to and under all of the following property (and all rights
therein) of such Pledgor, or in which or to which such Pledgor has any rights,
in each case whether now existing or hereafter from time to time acquired (it
being understood and agreed by the parties hereto that (x) the
10
security interest granted herein (i) to the Pledgee in its capacity solely as
collateral agent for the equal and ratable benefit of the Lender Creditors to
secure the Priority Credit Document Obligations shall have a first priority
distribution right as provided in Section 7.4 of the Security Agreement and (ii)
to the Pledgee in its capacity solely as collateral agent for the equal and
ratable benefit of all of the Secured Creditors to secure Obligations not
constituting Priority Credit Document Obligations shall be subject to the
security interest granted herein for the benefit of the Lender Creditors to
secure Priority Credit Document Obligations and shall only be entitled to a
distribution as provided in Section 7.4 of the Security Agreement after all
Priority Credit Document Obligations have been paid in full as provided in such
Section 7.4 of the Security Agreement, and (y) the grants of security interest
hereunder constitute two separate and distinct grants of security and Liens, one
in favor of the Pledgee in its capacity as collateral agent for the equal and
ratable benefit of the Lender Creditors to secure Priority Credit Document
Obligations and the second in favor of the Pledgee in its capacity as collateral
agent for the equal and ratable benefit of all of the Secured Creditors to
secure Obligations not constituting Priority Credit Document Obligations):
(a) each of the Collateral Accounts, including any and all
assets of whatever type or kind deposited by such Pledgor in any such
Collateral Account, whether now owned or hereafter acquired, existing or
arising, including, without limitation, all Financial Assets, Investment
Property, monies, checks, drafts, Instruments, Securities or interests
therein of any type or nature 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 owned or held by such Pledgor from time
to time and all options and warrants owned by such Pledgor from time to
time to purchase Securities;
(c) all Limited Liability Company Interests owned by such
Pledgor from time to time and all of its right, title and interest in
each limited liability company to which each such Limited Liability
Company Interest relates, whether now existing or hereafter acquired,
including, without limitation, to the fullest extent permitted under the
terms and provisions of the documents and agreements governing such
Limited Liability Company Interests and applicable law:
(A) all its capital therein and its interest in all
profits, income, surpluses, 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;
11
(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;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for monies
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 such 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 owned by such Pledgor from
time to time and all of its right, title and interest in each
partnership to which each such Partnership Interest relates, whether now
existing or hereafter acquired, including, without limitation, to the
fullest extent permitted under the terms and provisions of the documents
and agreements governing such Partnership Interests and applicable law:
(A) all its capital therein and its interest in all
profits, income, surpluses, 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
12
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 monies loaned or
advanced, for services rendered or otherwise;
(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 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; 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 Financial Assets and Investment Property owned by
such Pledgor from time to time;
(f) all Security Entitlements owned by such Pledgor from
time to time in any and all of the foregoing; and
(g) all Proceeds of any and all of the foregoing;
all of the foregoing, to the extent now existing or hereinafter from time to
time acquired, collectively the "Collateral"; provided that (x) except in the
circumstances and to the extent provided by Section 8.12 of the Credit Agreement
(in which case this clause (x) shall no longer be applicable), no Pledgor shall
be required at any time to pledge hereunder, and the term "Collateral" shall not
include, and the security interest granted under this Agreement shall not attach
to, more than 65% of the total combined voting power of all classes of Voting
Equity Interests of any Exempted Foreign Entity, (y) each Pledgor shall be
required to pledge hereunder 100% of the Non-Voting Equity Interests of each
Exempted Foreign Entity at any time and from time to time acquired by such
Pledgor, which Non-Voting Equity Interests shall not be subject to the
limitations described in preceding clause (x), and (z) the term "Collateral"
shall not include, and the security interest granted under this Agreement shall
not attach to, the Domestic Receivables Facility Property and the Proceeds
thereof (other than the cash Proceeds received by
13
the respective Assignor from the sale of the respective Accounts to the buyer of
such Accounts pursuant to the New Domestic Receivables Facility).
3.2 Procedures. (a) To the extent that any Pledgor at any time or 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 such 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 Business Days (or such longer period if consented to by the
Pledgee in writing in its sole discretion) after it obtains such Collateral) for
the benefit of the Pledgee and the other Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation or
Securities Intermediary), such Pledgor shall physically deliver such
Certificated Security to the Pledgee, endorsed to the Pledgee or endorsed in
blank;
(ii) with respect to an Uncertificated Security of a Domestic
Subsidiary (other than an Uncertificated Security credited on the books of a
Clearing Corporation or Securities Intermediary), such Pledgor shall
promptly notify the Pledgee thereof and, upon the Pledgee's request, cause
the issuer of such Uncertificated Security to duly authorize, execute and
deliver to the Pledgee, an agreement for the benefit of the Pledgee and the
other Secured Creditors substantially in the form of Annex H 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 of a
Domestic Subsidiary (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;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation or Securities Intermediary
(including a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), such Pledgor shall promptly notify the Pledgee
thereof and, upon the Pledgee's request, shall promptly take (x) all actions
required (i) to comply with the applicable rules of such Clearing
Corporation or Securities Intermediary and (ii) to perfect the security
interest of the Pledgee under applicable law (including, in any event, under
Sections 9-314(a), (b) and (c), 9-106 and 8-106(d) of the UCC) and (y) such
other 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
Company Interest credited on the books of a Clearing Corporation or
Securities Intermediary), (1) if such Partnership Interest or Limited
Liability Company Interest is represented by a certificate and is a Security
for purposes of the UCC, the procedure set forth in Section 3.2(a)(i)
14
hereof shall apply thereto, and (2) if such Partnership Interest or Limited
Liability Company Interest is not represented by a certificate and is a
Security for purposes of the UCC, the procedure set forth in Section
3.2(a)(ii) hereof shall apply thereto;
(v) with respect to any Note that is an Intercompany Note and any
other Note with a principal amount in excess of $250,000 held by a Pledgor,
such Pledgor shall physically deliver such Note to the Pledgee, endorsed in
blank, or, at the request of the Pledgee, endorsed to the Pledgee; and
(vi) with respect to cash proceeds from any of the Collateral
described in Section 3.1 hereof with respect to which the Pledgee is
entitled to retain physical possession of pursuant to the terms of this
Agreement, (i) establishment by the Pledgee of a cash account in the name of
such Pledgor over which the Pledgee shall have "control" within the meaning
of the UCC and at any time any Default or Event of Default is in existence
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.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, each Pledgor shall take the following additional actions
with respect to the Collateral:
(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), such 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 appropriate forms) under the Uniform Commercial Code as in
effect in the various relevant States, 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's security interest in all Investment Property and other
Collateral which can be 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 9-312(a) of the UCC) is so perfected.
(c) The Pledgee in its sole capacity as collateral agent for the
benefit of the Lender Creditors with respect to the Priority Credit Document
Obligations hereby agrees and acknowledges that, to the extent that it has
possession or will have possession of any Collateral, it has acquired or will
acquire possession of Collateral and shall hold such Collateral on behalf of
itself as well as on behalf of the Pledgee in its sole capacity as collateral
agent for the benefit of the Secured Creditors with respect to the Obligations
not constituting Priority Credit Document Obligations, in accordance with
Sections 8-301(a)(2), 9-313(a) and 9-313(c) of the UCC.
15
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire (by
purchase, stock dividend, distribution or otherwise) any additional Collateral
at any time or from time to time after the date hereof, (i) 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
hereof, (ii) such Pledgor will thereafter take (or cause to be taken) all action
(as promptly as practicable and, in any event, within 10 Business Days (or such
longer period if consented to by the Pledgee in writing in its sole discretion)
after it obtains such Collateral) with respect to such Collateral in accordance
with the procedures set forth in Section 3.2 hereof, and (iii) will promptly
thereafter deliver to the Pledgee (x) a certificate executed by an authorized
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
Creditors) hereunder and (y) supplements to Annexes A through G 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 the Equity Interests of any Exempted Foreign Entity at any time and
from time to time after the date hereof acquired by such Pledgor, provided that
(x) except in the circumstances and to the extent provided by Section 8.12 of
the Credit Agreement, no Pledgor shall be required at any time to pledge
hereunder more than 65% of the total combined voting power of all classes of
Voting Equity Interests of any Exempted Foreign Entity and (y) each Pledgor
shall be required to pledge hereunder 100% of the Non-Voting Equity Interests of
each Exempted Foreign Entity at any time and from time to time acquired by such
Pledgor.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 Certain Representations and Warranties Regarding the Collateral.
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
B hereto; (ii) the Stock (and any warrants or options to purchase Stock) held by
such Pledgor consists of the number and type of shares of the stock (or warrants
or options to purchase any stock) of the corporations as described in Annex C
hereto; (iii) such Stock referenced in clause (ii) of this paragraph constitutes
that percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex C hereto; (iv) the Notes held by such
Pledgor consist of the promissory notes described in Annex D 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 E hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (vii) the Partnership Interests held by such Pledgor consist of
the number and type of interests of the Persons described in Annex F hereto;
(viii) each such Partnership Interest referenced in clause (viii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex F hereto; (ix) the exact
address of each chief executive office of such Pledgor is listed on Annex G
hereto; (x) the Pledgor has complied with the respective procedure set forth in
Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes C through F hereto; and (xi) such Pledgor owns no other Securities,
Stock, Notes, Limited Liability Company Interests or Partnership Interests.
16
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall 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 shall
have occurred and be continuing any Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided that, in each case, no vote shall be cast or any
consent, waiver or ratification given or any action taken or omitted to be taken
which would violate, result in a breach of any covenant contained in, or be
inconsistent with any of the terms of any Secured Debt Agreement, or which could
reasonably be expected to 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 in the Collateral, unless expressly permitted by the
terms of the Secured Debt Agreements. All such rights of each Pledgor to vote
and to give consents, waivers and ratifications shall cease in case an Event of
Default has occurred and is continuing, and the Pledgee chooses to exercise the
rights granted to it pursuant to Section 7 hereof.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall have
occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited 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, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash (although such
cash may be paid directly to the respective Pledgor so long as no Event of
Default then exists)) 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, certificates, 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 or
other 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 any Pledgor
17
contrary to the provisions of this Section 6 or Section 7 hereof shall be
received in trust 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. (a) If there shall have
occurred and be continuing an Event of Default, then and in every such case, the
Pledgee shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the UCC as in effect in any relevant
jurisdiction and also shall be entitled, without limitation, to exercise 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 hereof to the respective 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) and exercise all rights and remedies with respect to any
collateral securing or any guaranty guarantying any such Pledged Note;
(iv) to vote (and exercise all rights and powers in respect of
voting) 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);
(v) at any time and 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 purchase or
dispose (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 at least 10
days' written notice of the time and place of any such sale shall be given
to the respective Pledgor. The Pledgee shall not be obligated to make any
such sale of Collateral regardless of whether any such notice of sale has
theretofore been given. 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, and all
rights, if any, of marshalling the Collateral and any other security or the
Obligations or otherwise. At any such sale, unless prohibited
18
by applicable law, the Pledgee on behalf of the Secured Creditors may bid
for and purchase 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 Creditor 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.
(b) If there shall have occurred and be continuing any Event of
Default, then and in every such case, the Pledgee shall be entitled to vote (and
exercise all rights and powers in respect of voting) 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).
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and remedy of
the Pledgee provided for in this Agreement or in 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 Creditor 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
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. Notice to or demand on
any Pledgor in any case shall entitle it to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Creditor to any other or further
action in any circumstances without notice or demand. The Secured Creditors
agree that, except as set forth in Annex O to the Security Agreement, this
Agreement may be enforced only by the action of the Pledgee, in each case,
acting upon the instructions of the Required Secured Creditors, and that no
other Secured Creditor 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 for the benefit of the Secured Creditors upon the terms of this
Agreement and the Security Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee upon
any sale or other disposition of any Collateral pursuant to the enforcement of
this Agreement or the exercise of any of the remedial provisions hereof,
together with all monies received by the Pledgee hereunder in respect of the
Collateral (including all monies received in respect of post-petition interest)
as a result of any such enforcement or the exercise of any such remedial
provisions or as a result of any distribution of any Collateral upon the
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or
19
proceeding involving the readjustment of the obligations and indebtedness of any
Pledgor, or the application of any Collateral to the payment thereof or any
distribution of Collateral upon the liquidation or dissolution of any Pledgor,
or the winding up of the assets or business of any Pledgor or under any
insurance policies insuring any of the Collateral, shall be applied in the
manner provided in the Security Agreement.
(b) It is understood and agreed that each Pledgor shall remain
liable with respect to its Obligations to the extent of any deficiency between
the amount of the proceeds of the Collateral pledged by it hereunder and the
aggregate amount of such 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 such 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 nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify, reimburse and hold harmless the Pledgee and each other Secured
Creditor (other than the Existing Senior Noteholders) and their respective
successors, assigns, employees, agents and affiliates (individually an
"Indemnitee", and collectively, the "Indemnitees") from and against any and all
obligations, damages, injuries, penalties, claims, demands, losses, judgments
and liabilities (including, without limitation, liabilities for penalties) of
whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all
reasonable costs, expenses and disbursements, including reasonable attorneys'
fees and expenses, 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 (x) any obligations,
damages, injuries, penalties, claims, demands, losses, judgments and liabilities
(including, without limitation, 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 (as determined by a court of
competent jurisdiction in a final and non-appealable decision) and (y) any Taxes
indemnification with respect to which is governed by Section 4.04 of the Credit
Agreement)). In no event shall the Pledgee hereunder be liable, in the absence
of gross negligence or willful misconduct on its part (as determined by a court
of competent jurisdiction in a final and non-appealable decision), 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, such 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 Loans and Notes issued under the
Credit Agreement, the termination of all Letters of Credit and all Interest Rate
Protection Agreements and Other Hedging Agreements entered into with a Hedging
Creditor, the termination of all Additional Secured Agreements entered into with
an Additional Secured Creditor and the payment of all other Obligations and
notwithstanding the discharge thereof.
20
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor 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 as a partner in any 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 a Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor, any
Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor, any limited
liability company, partnership and/or any other Person either before or after an
Event of Default shall have occurred. The Pledgee shall have only those powers
set forth herein and the Secured Creditors shall assume none of the duties,
obligations or liabilities of a member of any limited liability company or as a
partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors 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 Creditor 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.
13. 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 refile under the UCC or other applicable law such financing statements,
continuation statements and other documents, in form reasonably acceptable to
the Pledgee, in such offices as the Pledgee (acting on its own or on the
instructions of the Required Secured Creditors) 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 (including, without limitation,
financing statements which list the Collateral specifically and/or "all assets"
as 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.
21
(b) Each Pledgor hereby constitutes and appoints the Pledgee its
true and lawful attorney-in-fact, irrevocably, 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 act, require, demand, receive and give
acquittance for any and all monies and claims for monies due or to become due to
such Pledgor under or arising out of the Collateral, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or
take any action or institute any proceedings and to execute any instrument which
the Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an interest.
14. 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, acknowledged and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured
Creditor acknowledges and agrees 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 this Agreement, in Section 12 of the Credit Agreement and in Annex O to the
Security Agreement. The Pledgee shall act hereunder on the terms and conditions
set forth herein, in Section 12 of the Credit Agreement and in Annex O to the
Security Agreement, the terms of which shall be deemed incorporated herein by
reference as fully as if the same were set forth herein in their entirety.
15. TRANSFER BY THE PLEDGORS. Except as permitted pursuant to the
Secured Debt Agreements, 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.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a) Each
Pledgor represents, warrants and covenants as to itself and each of its
Subsidiaries that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all of its Collateral consisting of one or more
Securities, Partnership Interests and Limited Liability Company Interests
and that it has sufficient interest in all of its 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);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(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 hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
22
or other similar laws affecting creditors' rights generally and by general
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, partner, member
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 by such Pledgor,
(b) the validity or enforceability of this Agreement against such Pledgor
(except as set forth in clause (iii) above), (c) the perfection or
enforceability of the Pledgee's security interest in such Pledgor's
Collateral or (d) except for compliance with or as may be required by
applicable laws, the exercise by the Pledgee of any of its rights or
remedies provided herein;
(v) neither the execution, delivery or performance by such Pledgor
of this Agreement, or any other Secured Debt Agreement to which it is a
party, nor compliance by it with the terms and provisions hereof and thereof
nor the consummation of the transactions contemplated therein: (i) will
contravene any provision of any applicable law, statute, rule or regulation,
or any applicable order, writ, injunction or decree of any court, arbitrator
or governmental instrumentality, domestic or foreign, applicable to such
Pledgor; (ii) will conflict or be inconsistent with or result in any breach
of any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation
to create or impose) any Lien (except pursuant to the Security Documents)
upon any of the properties or assets of such Pledgor or any of its
Subsidiaries pursuant to the terms of any indenture, lease, mortgage, deed
of trust, credit agreement, loan agreement or any other material agreement,
contract or other instrument to which such Pledgor or any of its
Subsidiaries is a party or is otherwise bound, or by which it or any of its
properties or assets is bound or to which it may be subject; or (iii) will
violate any provision of the certificate of incorporation, by-laws,
certificate of partnership, partnership agreement, certificate of formation
or limited liability company agreement (or equivalent organizational
documents), as the case may be, of such Pledgor or any of its Subsidiaries;
(vi) all of such Pledgor's Collateral (consisting of Securities,
Limited Liability Company Interests and Partnership Interests) has been duly
and validly issued, is fully paid and non-assessable and is subject to no
options to purchase or similar rights;
(vii) each of such Pledgor's Pledged Notes constitutes, or when
executed by the obligor thereof will constitute, the legal, valid and
binding obligation of such obligor, enforceable 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 affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(viii) the pledge, collateral assignment and delivery to the Pledgee of
such Pledgor's Collateral consisting of Certificated Securities and Pledged
Notes pursuant to
23
this Agreement creates a valid and perfected first priority security
interest in such Certificated Securities and Pledged Notes, 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 the
liens and security interests permitted under the Secured Debt Agreements
then in effect) 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
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all of such Pledgor's Collateral consisting of
Securities (including, without limitation, Notes which are Securities) with
respect to which such "control" may be obtained pursuant to Section 8-106 of
the UCC, except to the extent that the obligation of the applicable Pledgor
to provide the Pledgee with "control" of such Collateral has not yet arisen
under this Agreement; provided that in the case of the Pledgee obtaining
"control" over Collateral consisting of a Security Entitlement, such Pledgor
shall have taken all steps in its control so that the Pledgee obtains
"control" over such Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to such Pledgor's Collateral
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 by such Pledgor as Collateral hereunder and will likewise defend the
right thereto and security interest therein of the Pledgee and the other Secured
Creditors.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
(d) Notwithstanding anything to the contrary contained in the Credit
Agreement, each Pledgor covenants and agrees that in no event shall such Pledgor
enter into a control or similar agreement with respect to any Uncertificated
Security held by such Pledgor representing the Equity Interests in any Foreign
Subsidiary of such Pledgor other than in favor of the Pledgee.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION;
LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact
legal name of each Pledgor, the type of organization of such Pledgor, whether or
not such Pledgor is a Registered Organization, the jurisdiction of organization
of such Pledgor, such Pledgor's Location, the organizational identification
number (if any) of each Pledgor, and whether or not such Pledgor is a
Transmitting Utility, is listed on Annex A hereto for such Pledgor. No Pledgor
shall change its legal name, its type of organization, its status as a
Registered Organization (in the case of a Registered Organization), its status
as a Transmitting Utility or as a Person which is not a Transmitting Utility, as
the case may be, its jurisdiction of organization, its Location, or its
organizational identification number
24
(if any), except that any such changes shall be permitted (so long as not in
violation of the applicable requirements of the Secured Debt Agreements and so
long as same do not involve (x) a Registered Organization ceasing to constitute
same or (y) any Pledgor changing its jurisdiction of organization or Location
from the United States or a State thereof to a jurisdiction of organization or
Location, as the case may be, outside the United States or a State thereof) if
(i) it shall have given to the Pledgee not less than 15 days' prior written
notice of each change to the information listed on Annex A (as adjusted for any
subsequent changes thereto previously made in accordance with this sentence),
together with a supplement to Annex A which shall correct all information
contained therein for such Pledgor, and (ii) in connection with such change or
changes, it shall have taken all action reasonably requested by the Pledgee to
maintain the security interests of the Pledgee in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect. In
addition, to the extent that any Pledgor does not have an organizational
identification number on the date hereof and later obtains one, such Pledgor
shall promptly thereafter deliver a notification of the Pledgee of such
organizational identification number (to the extent such organizational
identification number is required to perfect the Pledgee's security interests
hereunder) and shall take all actions reasonably satisfactory to the Pledgee to
the extent necessary to maintain the security interest of the Pledgee in the
Collateral intended to be granted hereby fully perfected and in full force and
effect.
18. 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 or release of Collateral
pursuant to Section 20 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;
(ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument including,
without limitation, 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.
25
19. SALE OF COLLATERAL WITHOUT REGISTRATION. (a) If an Event of Default
shall have occurred and be continuing and any Pledgor shall have received from
the Pledgee a written request or requests that such Pledgor cause any
registration, qualification or compliance under any federal or state securities
law or laws to be effected with respect to all or any part of the Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests, such Pledgor as soon as practicable and at its expense will use its
best efforts to cause such registration to be effected (and be kept effective)
and will use its best efforts to cause such qualification and compliance to be
effected (and be kept effective) as may be so requested and as would permit or
facilitate the sale and distribution of such Collateral consisting of
Securities, Limited Liability Company Interests or Partnership Interests,
including, without limitation, registration under the Securities Act, as then in
effect (or any similar statute then in effect), appropriate qualifications under
applicable blue sky or other state securities laws and appropriate compliance
with any other governmental requirements; provided, that the Pledgee shall
furnish to such Pledgor such information regarding the Pledgee as such Pledgor
may request in writing and as shall be required in connection with any such
registration, qualification or compliance. Each Pledgor will cause the Pledgee
to be kept reasonably advised in writing as to the progress of each such
registration, qualification or compliance and as to the completion thereof, will
furnish to the Pledgee such number of prospectuses, offering circulars and other
documents incident thereto as the Pledgee from time to time may reasonably
request, and will indemnify, to the extent permitted by law, the Pledgee and all
other Secured Creditors participating in the distribution of such Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests against all claims, losses, damages and liabilities caused by any
untrue statement (or alleged untrue statement) of a material fact contained
therein (or in any related registration statement, notification or the like) or
by any omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same may have been caused by an untrue statement or
omission based upon information furnished in writing to such Pledgor by the
Pledgee or such other Secured Creditor expressly for use therein.
(b) 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 hereof, and such Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act, 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 βββββ ββββ reasonable under
26
the circumstances, notwithstanding the possibility that a substantially higher
price might be realized if the sale were deferred until the registration as
aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date, 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 such Pledgor, will execute if
necessary 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 release from the security interest
created hereby and 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 any of its sub-agents hereunder and,
with respect to any Collateral consisting of an Uncertificated Security, a
Partnership Interest or a Limited Liability Company Interest (other than an
Uncertificated Security, Partnership Interest or Limited Liability Company
Interest credited on the books of a Clearing Corporation or Securities
Intermediary), 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)(2).
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (to a Person other than a Credit Party) in connection with
a sale or other disposition permitted by the respective Secured Debt Agreements
or is otherwise released at the direction of the Required Secured Creditors, the
Pledgee, at the request, cost and expense of such Pledgor, will duly release
from the security interest created hereby (and will execute and deliver such
documentation, including termination or partial release statements and the like
in connection therewith) and 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 otherwise disposed of, or
released, and as may be in the possession of the Pledgee and has not theretofore
been released pursuant to this Agreement. Any proceeds of Collateral sold or
otherwise disposed of as contemplated by the immediately preceding sentence may
be applied in accordance with the requirements of the Credit Agreement;
provided, however, upon the occurrence and during the continuance of an Existing
Senior Note Event, such proceeds shall be applied as provided in Section 9(a)
hereof. As used herein, an "Existing Senior Note Event" shall mean the
acceleration of the maturity of any Existing Senior Notes or the failure to pay
at final maturity any Existing Senior Notes, or the occurrence of any default or
event of default of the types specified in Section 5.01(6) or (7) of the
Existing Senior Notes Indenture; provided that no Existing Senior Note Event
shall be deemed to exist (x) at any time when no Existing Senior Note
Obligations are secured hereunder or (y) after all Existing Senior Note
Obligations have been repaid in full.
(c) At any time that any Pledgor desires that Collateral be released
as provided in the foregoing Section 20(a) or (b), it shall deliver to the
Pledgee (and the relevant sub-agent, if any, designated pursuant to Section 4
hereof) a certificate signed by an authorized officer of such Pledgor stating
that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b) hereof. If reasonably requested by the Pledgee (although the
Pledgee
27
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.
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with (or which the Pledgee in the absence of gross negligence and willful
misconduct believes to be in accordance with) this Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, cable company
or overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Pledgee or any Pledgor shall not be
effective until received by the Pledgee or such Pledgor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at c/o:
Crompton Corporation
βββ ββββββ ββββ
ββββββββββ, ββ βββββ
Attention: Chief Financial Officer and General Counsel
Telephone No.: (βββ) βββ-ββββ
Telecopier No.: (βββ) βββ-ββββ
(b) if to the Pledgee, at:
Deutsche Bank AG New York Branch
ββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββ. βββββ ββββββ
Telephone No.: (βββ) βββ-ββββ
Telecopier No.: (βββ) βββ-ββββ
(c) if to any Lender Creditor, either (x) to the Administrative
Agent, at the address of the Administrative Agent specified in the Credit
Agreement, or (y) at such address as such Lender Creditor shall have
specified in the Credit Agreement;
(d) if to any Hedging Creditor, at such address as such Hedging
Creditor shall have specified in writing to the Borrower and the Pledgee;
(e) if to any Additional Secured Creditor, at such address as such
Additional Secured Creditor shall have specified in writing to the Borrower
and the Pledgee;
(f) if to the Trustee, at the address specified in the Security
Agreement;
28
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
22. WAIVER; AMENDMENT. Except as provided in Sections 30 and 32 hereof,
none of the terms and conditions of this Agreement may be changed, waived,
modified or varied in any manner whatsoever except in accordance with the
requirements specified in the Security Agreement.
23. SUCCESSORS AND ASSIGNS. 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 20, (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
Required Secured Creditors), and (iii) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Creditors and their respective successors, transferees and assigns. All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several Sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN
THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES NOT TO PLEAD OR
CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT
IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION
OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION
21 ABOVE, SUCH SERVICE TO
29
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE
UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein contained
to the contrary notwithstanding, that each Pledgor shall remain liable to
perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in Pledgor's possession, nor shall
the Pledgee be required or obligated in any manner to perform or fulfill any of
the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Pledgor and the
Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
30
29. RECOURSE. This Agreement is made with full recourse to each Pledgor
and pursuant to and upon all the representations, warranties, covenants and
agreements on the part of such Pledgor contained herein and in the other Secured
Debt Agreements.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any Subsidiary
of the Borrower that is required to become a party to this Agreement after the
date hereof pursuant to the requirements of the Credit Agreement or any other
Credit Document, shall become a Pledgor hereunder by (x) executing a counterpart
hereof (or a Joinder Agreement substantially in the form of Exhibit O to the
Credit Agreement in lieu thereof) and delivering same to the Pledgee, (y)
delivering supplements to Annexes A through G, hereto as are necessary to cause
such annexes to be complete and accurate with respect to such additional Pledgor
on such date and (z) taking all actions as specified in this Agreement as would
have been taken by such Pledgor had it been an original party to this Agreement,
in each case with all documents required above to be delivered to the Pledgee
and with all documents and actions required above to be taken to the reasonable
satisfaction of the Pledgee.
31. LIMITED OBLIGATIONS. It is the desire and intent of each Pledgor and
the Secured Creditors 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, (i) it is noted
that with respect to each Pledgor which has executed the Subsidiaries Guaranty,
the obligations of such Pledgor thereunder has been limited as provided therein,
and (ii) with respect to each Pledgor that is a Subsidiary of the Borrower, the
grant of the security interest hereunder by each such Pledgor with respect to
the Existing Senior Notes Obligations shall not constitute a fraudulent transfer
or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act or any similar Federal or state law and to effectuate the
foregoing, the grant of the security interest hereunder by each such Pledgor
with respect to the Existing Senior Notes Obligations shall be limited to such
amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Pledgor that are relevant under
such laws and after giving effect to any rights to contribution pursuant to any
agreement providing for an equitable contribution among such Pledgors, result in
the Existing Senior Notes Obligations of such Pledgors in respect of such
maximum amount not constituting a fraudulent transfer or conveyance.
32. RELEASE OF PLEDGORS. If at any time all of the Equity Interests of
any Pledgor owned by the Borrower or any of its Subsidiaries are sold (to a
Person other than a Credit Party) in a transaction permitted pursuant to the
Credit Agreement (and which does not violate the terms of any other Secured Debt
Agreement then in effect), then, such Pledgor shall be released as a Pledgor
pursuant to this Agreement without any further action hereunder (it being
understood that the sale of all of the Equity Interests in any Person that owns,
directly or indirectly, all of the Equity Interests in any Pledgor shall be
deemed to be a sale of all of the Equity Interests in such Pledgor for purposes
of this Section), and the Pledgee is authorized and directed to execute and
deliver such instruments of release as are reasonably satisfactory to such
Pledgor. At any time that the Borrower desires that a Pledgor be released from
this Agreement as provided in this Section 32, the Borrower shall deliver to the
Pledgee a certificate signed by a principal executive officer of the Borrower
stating that the release of such Pledgor is permitted pursuant to this Section
32. If requested by Pledgee (although the Pledgee shall have no
31
obligation to make any such request), the Borrower shall furnish legal opinions
(from counsel acceptable to the Pledgee) to the effect set forth in the
immediately preceding sentence. The Pledgee shall have no liability whatsoever
to any other Secured Creditor as a result of the release of any Pledgor by it in
accordance with, or which it believes to be in accordance with, this Section 32.
* * * *
32
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 above written.
Address:
βββ ββββββ ββββ ββββββββ CORPORATION,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ βββββ β. ββββββββ
------------------------------------
Name: βββββ β. ββββββββ
Title: Secretary
βββ ββββββ ββββ CNK CHEMICAL REALTY CORPORATION,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ ββββββββ COLORS INCORPORATED,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ ββββββββ ββββββ FINANCIAL
ββββββββββ, βββββββββββ, βββββ SERVICES COMPANY, as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ ββββββββ HOLDING CORPORATION,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ ββββββββ ββββββββ, INC.,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ ββββββββ SALES COMPANY, INC.,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
199 ββββββ Road βββββ-STANDARD CORPORATION,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ βββββ β. βββββββ
------------------------------------
Name: βββββ β. βββββββ
Title: Secretary
βββ ββββββ ββββ GT SEED INTERNATIONAL COMPANY,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ GT SEED TREATMENT, INC.,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ KEM MANUFACTURING CORPORATION,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel:
Fax:
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββββ βββββββ ββ ββββββββ, βββ.,
βββββββ, ββ βββββ as a Pledgor
Tel:
Fax:
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ NAUGATUCK TREATMENT COMPANY,
ββββββββββ, βββββββββββ, βββββ as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ UNIROYAL CHEMICAL COMPANY, INC.,
ββββββββββ, βββββββββββ, βββββ a Delaware Corporation, as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ UNIROYAL CHEMICAL COMPANY, INC.,
ββββββββββ, βββββββββββ, βββββ a New Jersey Corporation, as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ UNIROYAL CHEMICAL COMPANY
ββββββββββ, βββββββββββ, βββββ LIMITED (DELAWARE), as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ UNIROYAL CHEMICAL EXPORT
ββββββββββ, βββββββββββ, βββββ LIMITED, as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ UNIROYAL CHEMICAL LEASING
ββββββββββ, βββββββββββ, βββββ COMPANY, INC., as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
βββ ββββββ ββββ βββββ CITY ROAD LLC,
Middlebury, Connecticut, 06762 as a Pledgor
Tel: 203-
Fax: 203-
By: /s/ ββββββ β. βββββββββ
------------------------------------
Name: ββββββ β. βββββββββ
Title: Secretary
Accepted and Agreed to:
DEUTSCHE BANK AG NEW YORK BRANCH,
as Collateral Agent for the Lender
Creditors with respect to the Priority
Credit Document Obligations
By: /s/ βββββ β. ββββββ
---------------------------------
Name: βββββ β. ββββββ
Title: Vice President
By: /s/ βββββββ βββββββ
---------------------------------
Name: βββββββ βββββββ
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH,
as Collateral Agent for the Secured
Creditors with respect to the
Obligations not constituting Priority
Credit Document Obligations
By: /s/ βββββ β. ββββββ
---------------------------------
Name: βββββ β. ββββββ
Title: Vice President
By: /s/ βββββββ βββββββ
---------------------------------
Name: βββββββ βββββββ
Title: Director
ANNEX A
to
PLEDGE AGREEMENT
SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION
(AND WHETHER A REGISTERED ORGANIZATION AND/OR
A TRANSMITTING UTILITY), JURISDICTION OF ORGANIZATION,
LOCATION AND ORGANIZATIONAL IDENTIFICATION NUMBERS
PLEDGOR'S
ORGANIZATION
PLEDGOR'S LOCATION IDENTIFICATION
REGISTERED (for purposes of NUMBER (or, if TRANSMITTING
EXACT LEGAL NAME OF EACH ORGANIZATION? JURISDICTION OF NY UCC it has none, so UTILITY?
PLEDGOR (YES/NO) ORGANIZATION section 9-307) indicate) (Yes/No)
---------------------------------- ------------- --------------- --------------------- --------------- ------------
CNK Chemical Realty Corporation Yes Pennsylvania βββ ββββββ ββββ 0052034 No
ββββββββββ, ββ βββββ
Crompton Colors Incorporated Yes Delaware βββ ββββββ ββββ 2448525 No
ββββββββββ, ββ βββββ
Crompton Corporation Yes Delaware βββ ββββββ ββββ 3046078 No
ββββββββββ, ββ βββββ
Crompton Europe Financial Services Yes Delaware βββ ββββββ ββββ 2559401 No
Company ββββββββββ, ββ βββββ
Crompton Holding Corporation Yes Delaware βββ ββββββ ββββ 2448496 No
ββββββββββ, ββ βββββ
ββββββββ ββββββββ, Inc. Yes Louisiana 199 ββββββ Road CBU 35171342D No
ββββββββββ, ββ βββββ
Crompton Sales Company, Inc. Yes Delaware βββ ββββββ ββββ 3230776 No
ββββββββββ, ββ βββββ
βββββ-Standard Corporation Yes Delaware βββ ββββββ ββββ 2448527 No
ββββββββββ, ββ βββββ
GT Seed International Company Yes Texas βββ ββββββ ββββ ββββββββββ No
ββββββββββ, ββ βββββ
GT Seed Treatment, Inc. Yes Minnesota βββ ββββββ ββββ β-βββ ββ
ββββββββββ, ββ βββββ
KEM Manufacturing Corporation Yes Georgia βββ ββββββ ββββ J010671 No
ββββββββββ, ββ βββββ
Annex A
Page 2
Monochem, Inc. Yes Louisiana 36191 Highway 30 25311150D No
βββββββ, ββ βββββ
Naugatuck Treatment Company Yes Connecticut βββ ββββββ ββββ 0032794 No
ββββββββββ, ββ βββββ
Uniroyal Chemical Company Limited Yes Delaware/ βββ ββββββ ββββ 2523836 No
(Delaware) Bahamas ββββββββββ, ββ βββββ
Uniroyal Chemical Company, Inc.(1) Yes Delaware βββ ββββββ ββββ 3230771 No
ββββββββββ, ββ βββββ
Uniroyal Chemical Company, Inc.(2) Yes New Jersey βββ ββββββ ββββ 0100271711 No
ββββββββββ, ββ βββββ
Uniroyal Chemical Export Limited Yes Delaware βββ ββββββ ββββ 2506818 No
ββββββββββ, ββ βββββ
Uniroyal Chemical Leasing Company, Yes Delaware βββ ββββββ ββββ 2647284 No
Inc. ββββββββββ, ββ βββββ
βββββ City Road LLC Yes Louisiana βββ ββββββ ββββ 35129624K No
ββββββββββ, ββ βββββ
----------
(1) Uniroyal Chemical Company, Inc., a Delaware corporation
(2) Uniroyal Chemical Company, Inc., a New Jersey corporation
ANNEX B
to
PLEDGE AGREEMENT
SCHEDULE OF SUBSIDIARIES
PERCENTAGE OWNERSHIP
(Direct Owner if not JURISDICTION OF SUBSIDIARY
SUBSIDIARY NAME Borrower) ORGANIZATION GUARANTOR?
------------------------------------- -------------------------------- --------------- ----------
ββββ-ββββ ββββββ Inc. 100% (ββββ) Canada
Assured Insurance Company 100% Vermont
Baxenden Chemicals Limited 53.5% (Witco Corporation U.K. United Kingdom
Limited)
Baxenden Scandinavia A.S. 100% (Baxenden Chemicals Denmark
Limited)
CK Witco Specialties Thailand Limited 100% (CIC) Thailand
CNK Chemical Realty Corporation 100% (ββββ) Pennsylvania Yes
Crompton & βββββββ of Canada Limited 100% (ββββ) Canada
Crompton & βββββββ Receivables 100% (ββββ) Delaware
Corporation
Crompton (Uniroyal Chemical) 100% (Crompton Europe Limited) United Kingdom
Registrations Limited
Crompton Agribusiness Pty. Limited 100% (Crompton Specialties Australia
Pty Limited)
Crompton B.V. 100% (Witco Europe Investment Netherlands
Partners)
Crompton Chemical (Pty) Limited 100% (ββββ) South Africa
Crompton Chemical S.r.l. 100% (Crompton Holdings B.V.) Italy
Crompton Chemicals B.V. 100% (Crompton Chemical S.r.l.) Netherlands
Crompton Co./Cie 100% (Crompton Netherlands B.V.) Canada
Crompton Colors Incorporated 100% (Crompton Holding Delaware Yes
Corporation)
Crompton Corporation Limitada 100% (CIC) Chile
Crompton Corporation S.A. de C.V. 13% (CIC); and Mexico
87% (Crompton Holding S.A. de
C.V.)
Crompton de Colombia Limitada 100% (CIC) Colombia
Crompton Espana S.L. 100% (CIC) Spain
Crompton Europe B.V. 100% (Crompton Holdings B.V.) Netherlands
Crompton Europe Financial Services 100% Delaware Yes
Company
Crompton Europe Limited 100% (ββββ) Scotland
Crompton European Holdings B.V. 100% (Crompton Overseas B.V.) Netherlands
Annex B
Page 2
PERCENTAGE OWNERSHIP
(Direct Owner if not JURISDICTION OF SUBSIDIARY
SUBSIDIARY NAME Borrower) ORGANIZATION GUARANTOR?
------------------------------------- -------------------------------- --------------- ----------
Crompton Financial Holdings 100% (Witco Ireland Ireland
Investment Co. Ltd.)
Crompton GmbH 100% (Crompton Holdings GmbH) Germany
Crompton Grand Banks Inc. 100% (CIC) Canada
Crompton Holding Corporation 100% (ββββ) Delaware Yes
Crompton Holding S.A de C.V. 100% (ββββ) Mexico
Crompton Holdings B.V. 15% (Crompton Co./Cie); Netherlands
85% (Crompton European
Holdings B.V.)
Crompton Holdings GmbH 5.59% (ββββ); 93.68% (CIC) Germany
Crompton Inc. 51.7% (CIC); 13.04% (ββββ) Korea
Crompton International Corporation 100% New Jersey
("CIC")
Crompton International Sales 100% (Uniroyal Chemical Barbados
Corporation Export Limited)
Crompton Investments S.A.S. 100% (Crompton Overseas B.V.) France
Crompton Limitada 15% (CIC) Brazil
85% (Crompton LLC)
Crompton Limited 100% (CIC) Japan
Crompton LLC 100% (Crompton Co./Cie) Delaware
ββββββββ ββββββββ, Inc. 100% (ββββ) Louisiana Yes
Crompton N.V. 100% (CIC) Belgium
Crompton Netherlands B.V. 100% (Crompton European Netherlands
Holdings B.V.)
Crompton Overseas B.V. 100% (Crompton Technology Netherlands
B.V.)
Crompton Quimica S.A.C.I 89.6% (CIC); 10.3% (ββββ) Argentina
ββββββββ β.β. 100% (CIC) Switzerland
Crompton S.A.S. 100% (Crompton Investments France
S.A.S.)
Crompton Sales Company, Inc. 100% (ββββ) Delaware Yes
Crompton Services B.V.B.A. 100% (Crompton Co./Cie) Belgium
Crompton Servicios S.A. de C.V. 100% (CIC) Mexico
Crompton Specialties Asia Pacific 100% (CIC) Singapore
Pte. Limited
Crompton Specialties GmbH 100% (Crompton Holdings GmbH) Germany
Crompton Specialties Holding Company 100% (CIC) China-Hong Kong
Limited
Crompton Specialties Limited 100% (CIC) Taiwan
Crompton Specialties Limited 100% (CIC) China-Hong Kong
Annex B
Page 3
PERCENTAGE OWNERSHIP
(Direct Owner if not JURISDICTION OF SUBSIDIARY
SUBSIDIARY NAME Borrower) ORGANIZATION GUARANTOR?
------------------------------------- -------------------------------- --------------- ----------
Crompton Specialties Limited 92% (ββββ) Thailand
Crompton Specialties Nanjing Company 100% (CIC) China-PRC
Limited
Crompton Specialties Pte. Limited 100% (CIC) Singapore
Crompton Specialties Pty. Limited 100% (ββββ) Australia
Crompton Specialties S.A. 100% (CIC) Ecuador
Crompton Specialties Sdn. Bhd. 100% (CIC) Malaysia
Crompton Specialties Shanghai Company 100% (CIC) China-PRC
Limited
Crompton Technology B.V. 55.7% (GT Seed International Netherlands
Company); 44.2% (CIC)
Crompton Vinyl Additives GmbH 100% (Crompton GmbH) Germany
Crompton, Inc. 100% (CIC) Philippines
Crompton-CNCCC Danyang Chemical 85% (CIC) China-PRC
Company Limited
βββββ-Standard (Deutschland) GmbH 100% (βββββ-Standard Germany
Corporation)
βββββ-Standard Corporation 100% (Crompton Holding Delaware Yes
Corporation)
βββββ-Standard France S.A.R.L. 51% (ββββ); 48% (9056-0921 France
Quebec Inc.)
βββββ-Standard GmbH 100% (βββββ-Standard Germany
(Deutschland) GmbH)
βββββ-Standard Limited 100% (Crompton Europe Limited) United Kingdom
β-β βββββββ Limited 100% (βββββ-Standard Limited) United Kingdom
Fasting Jonk N.V. 100% (Jonk B.V.) Netherlands
GT Seed International Company 100% (ββββ) Texas Yes
GT Seed Treatment, Inc. 100% (ββββ) Minnesota Yes
Handelsmaatschappij Camphina N.V. 100% (Jonk B.V.) Netherlands
Isofoam Limited 100% (Baxenden Chemicals United Kingdom
Limited)
Jonk B.V. 100% (Crompton B.V.) Netherlands
KEM Manufacturing Corporation 100% (ββββ) Georgia Yes
Lucia KaarsenFabriek N.V. 100% (Jonk B.V.) Netherlands
Monochem, Inc. 100% (ββββ) Louisiana Yes
Nanjing ββββββββ ββββββββ 85% (CIC) China-PRC
Organosilicon Specialties Co., Ltd.
Naugatuck Treatment Company 100% (ββββ) Connecticut Yes
ANNEX B
Page 4
PERCENTAGE OWNERSHIP
(Direct Owner if not JURISDICTION OF SUBSIDIARY
SUBSIDIARY NAME Borrower) ORGANIZATION GUARANTOR?
------------------------------------- -------------------------------- --------------- ----------
Nerap Expeditie B.V. 100% (Crompton B.V.) Netherlands
PT Crompton Indonesia 100% (CIC) Indonesia
Unicorb Limited 100% (ββββ) United Kingdom
Uniroyal Chemical Company Limited 100% (ββββ) Delaware / Bahamas Yes
(Delaware)
Uniroyal Chemical Company, Inc. 100% (ββββ) Delaware Yes
Uniroyal Chemical Company, Inc. 80.64% (Crompton New Jersey Yes
("ββββ") Corporation); 19.36%
(Crompton Holdings GmbH)
Uniroyal Chemical Export Limited 100% (ββββ) Delaware Yes
Uniroyal Chemical Leasing Company, 100% (ββββ) Delaware Yes
Inc.
Uniroyal Chemical Mexico S.A. de C.V. 100% (Crompton Holdings S.A. Mexico
de C.V.)
Uniroyal Chemical S.A. 100% (ββββ) Spain
Uniroyal Chemical S.A.R.L. 100% (ββββ) Switzerland
Uniroyal Chemical Taiwan Limited 80% (ββββ) Taiwan
βββββ City Road LLC 100% (ββββ) Louisiana Yes
Witco Corporation U.K. Limited 100% (CIC) United Kingdom
Witco Europe Investment Partners 99% (Witco Investment Delaware
Holdings B.V.); 1% (Witco
Investments B.V.)
Witco Investment Holdings B.V. 100% (Crompton Overseas B.V.) Netherlands
Witco Investments B.V. 100% (Witco Investment Netherlands
Holdings B.V.)
Witco Ireland Investment Company 99% (Crompton B.V; Ireland
Limited 1% (CIC)
Witco Polymers and Resins B.V. 100% (Crompton B.V.) Netherlands
Witco ββββββββββββ β.β. βββ% (ββββββββ β.β.) βββββββββββ
ANNEX C
to
PLEDGE AGREEMENT
SCHEDULE OF STOCK
1. Crompton Corporation
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
------------------------------------------------------------------------------------------------------------------
Assured Insurance Common 100,000 3 100% (i)
Company
Enenco, Incorporated Capital 100 2 50% (i)
Capital 200 4 (i)
Capital 600 6 (i)
Capital 800 8 (i)
Capital 600 10 (i)
Capital 600 12 (i)
Capital 600 14 (i)
Capital 300 16 (i)
Capital 200 18 (i)
Uniroyal Chemical Common 100 15 80.64% (i)
Company, Inc.(3)
Crompton Europe Common 500 02 100% (i)
Financial Services
Company
Crompton Common 130 3 65% (i)
International
Corporation Common 70 N/A 35% Not Pledged
[Continued next page]
----------
(3) Uniroyal Chemical Company, Inc., a New Jersey corporation
Annex C
Page 2
2. Crompton Holding Corporation
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
------------------------------------------------------------------------------------------------------------------
Crompton Colors Common 500 4 100% (i)
Incorporated
βββββ-Standard Common 500 2 100% (i)
Corporation
3. Uniroyal Chemical Company, Inc., a New Jersey corporation
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
------------------------------------------------------------------------------------------------------------------
CNK Chemical Realty Common 100 10 100% (i)
Corporation
Crompton Holding Common 750 5 100% (i)
Corporation
ββββββββ ββββββββ, Common 1,000 2 100% (i)
Inc.
Crompton Sales Common 100 3 100% (i)
Company, Inc.
GT Seed International Common 100 4 100% (i)
Company
GT Seed Treatment, Common 116,310 2 100% (i)
Inc.
KEM Manufacturing Common 5,000 2 100% (i)
Corporation
Monochem, Inc. Common 502,020 1 100% (i)
Naugatuck Treatment Common 100 3 100% (i)
Company
Uniroyal Chemical Common 3,997 12 100% (i)
Company Limited
(Delaware)
Uniroyal Chemical Common 100 3 100% (i)
Company, Inc.(4)
----------
(4) Uniroyal Chemical Company, Inc., a Delaware corporation
Annex C
Page 3
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
------------------------------------------------------------------------------------------------------------------
Uniroyal Chemical Common 100 1 100% (i)
Export Limited
Uniroyal Chemical Common 100 1 100% (i)
Leasing Company, Inc.
NPC Services, Inc. Common 12.75 8 12.75% (i)
Crompton & βββββββ Common] 1,000 Uncertificated 100% Not Pledged
Receivables Corporation
SCHEDULE OF FOREIGN STOCK
4. Uniroyal Chemical Company, Inc., a New Jersey corporation
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
---------------------------------------------------------------------------------------------------------------
Unicorb Limited Not specified 636,943 3 65% (i)
Not specified 2 Not specified 35% Not pledged
Crompton Europe Not specified 1,103,291 7 65% (i)
Limited
Not specified 594,091 Not specified 35% Not pledged
Annex C
Page 4
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
-------------------------------------------------------------------------------------------------------------
Crompton Chemical Not specified 25,000 Not specified 65% (i)
(Pty) Ltd.
Not specified 25,000 Not specified 35% Not pledged
Uniroyal Chemical Not specified Not specified Not specified 65% (i)
S.A.
Not specified Not specified Not specified 35% Not pledged
ββββ-ββββ ββββββ Inc. (Common 164 CA-4 65% (i)
(Common 88 Not specified 35% Not pledged
PPreferred 650 PA-4 65% (i)
PPreferred 350 Not specified 35% Not pledged
Crompton & βββββββ Not specified 98 C-8 65% (i)
of Canada Limited
Not specified Approx. 53 Not specified 35% Not pledged
Crompton Specialties Not specified 325,000 14 65% (i)
Pty. Limited
Not specified 175,000 Not specified 35% Not pledged
Crompton Specialties Not specified Approx. 318,500 Not specified 59.8% (i)
Limited
Not specified Approx. 154,113 Not specified 32.2% (i)
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
-------------------------------------------------------------------------------------------------------------
Crompton Holding Not specified 54,188,661.15 Not specified 65% (i)
S.A. de C.V.
Not specified 29,178,509.85 Not specified 35% Not pledged
Crompton Quimica Not specified 31,622 Not specified 6.7% (i)
S.A.C.I.
Not specified 17,027 Not specified 3.6% Not pledged
Crompton Holdings Not specified 499,850 Uncertificated 3.63% N/A
GmbH
Not specified 269,150 Uncertificated 2.27% Not pledged
Uniroyal Chemical Not specified 25,000 Uncertificated 65% N/A
S.A.R.L.
Not specified Approx. Uncertificated 35% Not pledged
13,461.5
Uniroyal Chemical Not specified Not specified Not specified 52% N/A
Taiwan Limited
Not specified Not specified Not specified 28% Not pledged
Not specified Not specified Not specified 32.2% Not pledged
βββββ-Standard Not specified Not specified Not specified 33.15%% N/A
France S.A.R.L.
Not specified Not specified Not specified 17.85% Not pledged
Annex C
Page 6
5. βββββ-Standard Corporation
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
-------------------------------------------------------------------------------------------------------------
βββββ-Standard Not specified Approx. Uncertificated 65% N/A
(Deutschland) GmbH 25,564.59
Not specified Approx. Uncertificated 35% Not pledged
13,765.55
6. GT Seed International Company
SUB-CLAUSE OF
NAME OF SECTION 3.2(a)
ISSUING TYPE OF NUMBER OF CERTIFICATE PERCENTAGE OF PLEDGE
CORPORATION SHARES SHARES NO. OWNED AGREEMENT
-------------------------------------------------------------------------------------------------------------
Crompton Technology Not specified Approx. 656.9 Uncertificated 37.05% N/A
B.V.
Not specified Approx. 396.1 Uncertificated 19.95% Not pledged
ANNEX D
to
PLEDGE AGREEMENT
SCHEDULE OF NOTES
1. Global Intercompany Note, dated as of the Effective Date, by each
Pledgor, as payor, in favor of each other Pledgor, as payee.
2. Promissory Note, dated December 22, 2000, by ββββ ββββ, LLC payable to
Crompton Corporation.
3. Promissory Note, dated March 11, 1999, by Stoney Creek Technologies, LLC
payable to Crompton Corporation (f/n/a Witco Corporation).
ANNEX E
to
PLEDGE AGREEMENT
SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS
1. Uniroyal Chemical Company, Inc., a New Jersey corporation
NAME OF SUB-CLAUSE OF
ISSUING LIMITED TYPE OF PERCENTAGE SECTION 3.2(a)
LIABILITY COMPANY INTEREST OWNED OF PLEDGE AGREEMENT
--------------------------------------------------------------------------------
βββββ City LLC Membership Units 100% (ii)
Rubicon LLC Class A Common Units 50% (i)
ANNEX F
to
PLEDGE AGREEMENT
SCHEDULE OF PARTNERSHIP INTERESTS
None.
ANNEX G
to
PLEDGE AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
Name of Pledgor Address(es) of Chief Executive Office
--------------- -------------------------------------
Each Pledgor except those named below βββ ββββββ ββββ
ββββββββββ, ββ βββββ
Monochem, Inc. βββββ βββββββ ββ
βββββββ, ββ βββββ
ANNEX H
to
PLEDGE AGREEMENT
FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES,
LIMITED LIABILITY COMPANY INTERESTS AND PARTNERSHIP INTERESTS
AGREEMENT (as amended, restated, modified and/or supplemented from time to time,
this "Agreement"), dated as of [_______ __, 200_], among the undersigned pledgor
(the "Pledgor"), Deutsche Bank AG New York Branch, not in its individual
capacity but solely as Collateral Agent (the "Pledgee"), and [__________], as
the issuer of the [Uncertificated Securities] [Limited Liability Company
Interests] [Partnership Interests] (as defined below) (the "Issuer"). Except as
otherwise defined herein, all capitalized terms used herein and defined in the
Pledge Agreement (as defined below) shall be used as herein as therein defined.
W I T N E S S E T H :
WHEREAS, the Pledgor, certain of its affiliates and the Pledgee have entered
into a Pledge Agreement, dated as of August 16, 2004 (as amended, restated,
modified and/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), the Pledgor has or will pledge to the Pledgee
for the benefit of the Secured Creditors (as defined in the Pledge Agreement),
and grant a security interest in favor of the Pledgee for the benefit of the
Secured Creditors in, all of the right, title and interest of the Pledgor in and
to any and all ["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")] [Partnership Interests (as defined in the Pledge
Agreement)] [Limited Liability Company Interests (as defined in the Pledge
Agreement)], from time to time issued by the Issuer, whether now existing or
hereafter from time to time acquired by the Pledgor (with all of such
[Uncertificated Securities] [Partnership Interests] [Limited Liability Company
Interests] being herein collectively called the "Issuer Pledged Interests"); and
WHEREAS, the 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. The 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 Pledgor), and, following its receipt of a notice from the
Pledgee stating that the Pledgee is exercising exclusive control of the Issuer
Pledged Interests, 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; provided, however, until such time as the Issuer
Annex H
Page 2
receives a notice from the Pledgee stating that the Pledgee is exercising
exclusive control of the Issuer Pledged Interests, the Issuer may comply with
any and all instructions and orders originated by the Pledgor.
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 Pledgor
of, and the granting by the Pledgor of a security interest in, the Issuer
Pledged Interests to the Pledgee, for the benefit of the Secured Creditors, 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 consisting of capital stock of a corporation
are fully paid and nonassessable.
4. All notices, statements of accounts, reports, prospectuses, financial
statements and other communications to be sent to the Pledgor by the Issuer in
respect of the Issuer will also be sent to the Pledgee at the following address:
Deutsche Bank AG New York Branch
ββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββ. βββββ ββββββ
Telephone No.: (βββ) βββ-ββββ
Telecopier No.: (βββ) βββ-ββββ
5. Following its receipt of a notice from the Pledgee stating that the Pledgee
is exercising exclusive control of the Issuer Pledged Interests and 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
Pledgee only by wire transfers to such account as the Pledgee shall instruct.
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, telegraph, telex, telecopy, cable or overnight courier service and all
such notices and communications shall, when mailed, telexed, telecopied, cabled
or sent by overnight courier, be effective when deposited in the mails or
delivered to 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 or the Issuer shall not be effective
until received. All notices and other communications shall be in writing and
addressed as follows:
(a) if to the Pledgor, at c/o:
Crompton Corporation
βββ ββββββ ββββ
ββββββββββ, ββ βββββ
Annex H
Page 3
Attention: Chief Financial Officer and General Counsel
Telephone No.: (βββ) βββ-ββββ
Telecopier No.: (βββ) βββ-ββββ
(b) if to the Pledgee, at the address given in Section 4 hereof;
(c) if to the Issuer, at:
________________________
________________________
________________________
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 the
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 the Pledgor.
8. This Agreement shall be governed by and construed in accordance with the law
of the State of New York.
Annex H
Page 4
IN WITNESS WHEREOF, the 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 Pledgor
By
--------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH,
not in its individual capacity but
solely as Collateral Agent for the
Lender Creditors with respect to the
Priority Credit Document Obligations
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH,
not in its individual capacity but
solely as Collateral Agent for the
Secured Creditors with respect to the
Obligations not constituting Priority
Credit Document Obligations
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
Annex H
Page 5
[ ],
---------------------
as the Issuer
By
--------------------------------
Name:
Title:
1. SECURITY FOR OBLIGATIONS...................................................3
2. DEFINITIONS................................................................5
3. PLEDGE OF SECURITIES, ETC.................................................10
3.1 Pledge..............................................................10
3.2 Procedures..........................................................14
3.3 Subsequently Acquired Collateral....................................16
3.4 Transfer Taxes......................................................16
3.5 Certain Representations and Warranties Regarding the
Collateral..........................................................16
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC..............................17
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT...................................17
6. DIVIDENDS AND OTHER DISTRIBUTIONS.........................................17
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT...................................18
8. REMEDIES, CUMULATIVE, ETC.................................................19
9. APPLICATION OF PROCEEDS...................................................19
10. PURCHASERS OF COLLATERAL..................................................20
11. INDEMNITY.................................................................20
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.................21
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY.....................................21
14. THE PLEDGEE AS COLLATERAL AGENT...........................................22
15. TRANSFER BY THE PLEDGORS..................................................22
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.................22
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION
OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION
NUMBERS; CHANGES THERETO; ETC...........................................24
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC.......................................25
19. SALE OF COLLATERAL WITHOUT REGISTRATION...................................26
20. TERMINATION; RELEASE......................................................27
21. NOTICES, ETC..............................................................28
22. WAIVER; AMENDMENT.........................................................29
23. SUCCESSORS AND ASSIGNS....................................................29
24. HEADINGS DESCRIPTIVE......................................................29
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL..............................................................29
26. PLEDGOR'S DUTIES..........................................................30
27. COUNTERPARTS..............................................................30
28. SEVERABILITY..............................................................30
29. RECOURSE..................................................................31
30. ADDITIONAL PLEDGORS.......................................................31
31. LIMITED OBLIGATIONS.......................................................31
32. RELEASE OF PLEDGORS.......................................................31
ANNEX A - SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION (AND WHETHER A
REGISTERED ORGANIZATION AND/OR A TRANSMITTING UTILITY),
JURISDICTION OF ORGANIZATION, LOCATION AND ORGANIZATIONAL
IDENTIFICATION NUMBERS
ANNEX B - SCHEDULE OF SUBSIDIARIES
ANNEX C - SCHEDULE OF STOCK
ANNEX D - SCHEDULE OF NOTES
ANNEX E - SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS
ANNEX F - SCHEDULE OF PARTNERSHIP INTERESTS
ANNEX G - SCHEDULE OF CHIEF EXECUTIVE OFFICES
ANNEX H - FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES, LIMITED
LIABILITY COMPANY INTERESTS AND PARTNERSHIP INTERESTS