OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (S)
[NMLP PLEDGE: ▇▇▇▇▇, CAPITAL AND GP]
OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (this "PLEDGE
AGREEMENT"), dated as of November 24, 2003, by and between THE ▇▇▇▇▇▇▇ MASTER
LIMITED PARTNERSHIP, a Delaware limited partnership ("NMLP"), and FLEET NATIONAL
BANK, a national banking association having an address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as agent (Fleet National Bank, in such capacity as
agent, hereinafter referred to as "AGENT") for a syndicate of Lenders (singly
and collectively, the "LENDERS") as specifically provided in the Loan Agreement
(as defined below).
W I T N E S S E T H
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WHEREAS, pursuant to that certain Master Loan Agreement dated as of
November 24, 2003 (as amended, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT") entered into by and among NMLP, T-Two Partners,
L.P., a Delaware limited partnership ("T-TWO"), the Agent and the Lenders, the
Agent and the Lenders have agreed to make a loan to NMLP in the aggregate
principal amount of $216,000,000.00 (the "NMLP LOAN") and a loan to T-Two in the
aggregate principal amount of $309,000,000.00 (the "T-TWO LOAN") (the NMLP Loan
and the T-Two Loan sometimes are referred to herein, collectively, as the
"LOANS"), upon the terms and subject to the conditions set forth therein.
WHEREAS, NMLP has substantial financial dealings with T-Two and is
affiliated with T-Two (either by ownership, contractual relationship, employment
or other meaningful business relationship).
WHEREAS, pursuant to the terms of the Call Option Agreement, NMLP has
executed and delivered a Guaranty of even date herewith, guaranteeing the
payment and performance of all T-Two Obligations arising under or pursuant to
the Loan Agreement (the "GUARANTY").
WHEREAS, NMLP owns (i) 100.0% of the membership interests in ▇▇▇▇▇▇▇
▇▇, LLC, a Delaware limited liability company ("▇▇▇▇▇▇▇ ▇▇"), (ii) 100.0% of the
membership interests in ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC, a Delaware limited liability company
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), and (iii) 50.01% of the membership interests in ▇▇▇▇▇▇▇
Capital LLC, a Delaware limited liability company ("▇▇▇▇▇▇▇ CAPITAL") ("▇▇▇▇▇▇▇
▇▇", "▇▇▇▇▇▇▇ ▇▇▇▇▇" and "▇▇▇▇▇▇▇ CAPITAL" are hereinafter collectively referred
to as the "NMLP SUBSIDIARIES").
WHEREAS, as a condition to extending the Loans, the Agent and the
Lenders have required NMLP to execute and deliver this Pledge Agreement and
certain other NMLP Security Documents to secure NMLP's obligations under the
Guaranty and the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make the Loans under the Loan Agreement, NMLP hereby agrees with
Agent and the Lenders as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Loan Agreement and used herein are so used as so defined, and the
following terms shall have the following meanings:
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"Agent": as defined in the first paragraph of this Pledge
Agreement.
"Cash Management Agreement": shall mean that certain Cash
Management Agreement, dated as of November 24, 2003, among NMLP,
various subsidiaries of NMLP, the Agent and the Lenders, as amended,
supplemented or otherwise modified from time to time.
"Collateral": means the Pledged Interests and all Proceeds
thereof.
"Consents": shall mean those certain Consents from the NMLP
Subsidiaries referenced in Section 4 of this Pledge Agreement.
"Guaranty": as defined in the recitals of this Pledge
Agreement.
"Lenders": as defined in the first paragraph hereto.
"Loan Agreement": as defined in the recitals of this Pledge
Agreement.
"Loans": as defined in the recitals of this Pledge Agreement.
"NMLP": as defined in the first paragraph of this Pledge
Agreement.
"NMLP Loan": as defined in the recitals of this Pledge
Agreement.
"NMLP Obligations": means all indebtedness, obligations and
liabilities of NMLP to the Agent and/or any of the Lenders, whether now
existing or hereafter arising, direct or indirect, absolute or
contingent, under any one or more of: (i) this Pledge Agreement; (ii)
the Loan Agreement, NMLP Note or any other NMLP Loan Document; and
(iii) each of the same as hereafter modified, amended, extended or
replaced, including, without limitation, the NMLP Obligations (as
defined in the Loan Agreement).
"NMLP Subsidiaries": as defined in the recitals of this Pledge
Agreement.
"Pledge Agreement": means this Ownership Interest Pledge and
Security Agreement, as amended, supplemented or otherwise modified from
time to time.
"Pledged Interests": means all right, title and interest of
NMLP, whether now owned or hereafter acquired, in and to the NMLP
Subsidiaries, as listed on Schedule 1 hereto, together with all
interests, certificates, options or rights of any nature whatsoever
which may be issued or granted to NMLP by the NMLP Subsidiaries in
respect of the foregoing.
"Proceeds": means (i) NMLP's right, title and interest in and
to all Distributions, monies, fees, payments, compensations and
proceeds now or hereafter payable in respect of the Pledged Interests,
whether payable as profits, Distributions, asset Distributions,
repayment of loans or capital or otherwise and including all "proceeds"
as such term is defined in Section 9-102 of the UCC; (ii) all books,
records, electronically stored data and information relating to the
Pledged Interests and all rights of access to such books, records and
information; (iii) all contract rights, general intangibles, claims,
powers, privileges, benefits and remedies of NMLP relating to the
foregoing; (iv) all additions to the Pledged Interests, all
substitutions therefor and all replacements thereof; and (v) all cash
or non-cash proceeds of any of the foregoing.
"Trigger Event": as defined in Section 2(b) of this Pledge
Agreement.
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"T-Two": as defined in the recitals of this Pledge Agreement.
"T-Two Loan": as defined in the recitals of this Pledge
Agreement.
"UCC": means the Uniform Commercial Code from time to time in
effect in The Commonwealth of Massachusetts; provided, that if by
mandatory provisions of law, the perfection or the effect of perfection
or non-perfection of the security interest granted hereunder in the
Collateral is governed by the Uniform Commercial Code of a jurisdiction
other than Massachusetts, "UCC" means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of provisions hereof
relating to such perfection or effect of perfection on non-perfection.
2. Pledge; Grant of Security Interest.
(1) Subject to the terms and provisions of Section 2(b) below,
as security for the full and punctual payment and performance of the
NMLP Obligations when due and payable (whether upon stated maturity, by
acceleration or otherwise), NMLP hereby transfers, assigns, grants,
bargains, sells, conveys, hypothecates, pledges, sets over, endorses
over and delivers to Agent all the Pledged Interests, and NMLP hereby
grants, pledges, hypothecates, transfers and assigns to Agent a
continuing lien on and security interest in all of the Collateral.
(2) The security interest granted in Section 2(a) shall not
become effective until the earlier to occur of the following events,
each as reasonably determined by the Agent: (i) the repayment in full
of the Integrated Obligations (as defined in the Loan Agreement); (ii)
the release of the lien held by the Integrated Group (as defined in the
Loan Agreement) of any of the Collateral, subject to the provisions of
Section 2(d) below; or (iii) the acceleration of the NMLP Obligations
as a result of an Event of Default under the Loan Agreement or any
other NMLP Loan Document, and the election by the Agent to vest and
perfect the security interest granted under Section 2(a), as evidenced
by written notice to NMLP (each, a "TRIGGER EVENT"). Immediately upon
the occurrence of a Trigger Event, and without the need for further
action by NMLP or the Agent and/or the Lenders, the security interest
granted under Section 2(a) and all of the terms and provisions of this
Pledge Agreement automatically shall become enforceable against NMLP in
accordance with the terms of this Pledge Agreement.
(3) Notwithstanding Section 2(b) above, the following terms,
covenants and conditions contained in this Pledge Agreement shall be in
full force and effect as of the date hereof: 5(a) - (e), 6(e), 6(g),
7(a), 7(b), 7(c)(ii) and (iii), 8(c), 14, 16, 17, 18, 19, 20, 21, 22,
23 and 24.
(4) If the Integrated Group releases a portion of the
Collateral, thereby causing a Trigger Event under Section 2(b)(ii)
above, the security interest granted under Section 2(a) and all of the
terms and provisions of this Pledge Agreement applicable thereto
automatically shall become enforceable against NMLP in accordance with
the terms of this Pledge Agreement as to that portion of the Collateral
released.
3. Delivery of Certificates, Instruments, Etc. NMLP shall deliver to
Agent:
(1) all original certificates, instruments and other
documents, if any, evidencing or representing the Pledged Interests as
soon as practicable after the occurrence of a Trigger Event; and
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(2) the original certificates, instruments or other documents,
if any, evidencing or representing all other Collateral (except for
collateral which this Pledge Agreement specifically permits NMLP to
retain) within five (5) days after NMLP's receipt thereof.
4. Powers and Transfer Instruments. Upon the occurrence of the Trigger
Event, NMLP shall deliver a duly executed Consent from each NMLP Subsidiary.
5. Representations and Warranties. NMLP represents and warrants that:
(1) Except for any consents as may be required in connection
with any disposition of any portion of the Collateral by laws affecting
the offering and sale of securities generally or as otherwise
contemplated by the Loan Agreement, no consent of any other person or
entity (including, without limitation, any owner or creditor of NMLP),
and no license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing (other than the filing of
financing statements under the UCC in order to perfect a security
interest in that portion of the Collateral in which a security interest
is perfected by filing) or declaration with any governmental
instrumentality is required in connection with (i) the execution,
delivery, performance, validity or enforceability of this Pledge
Agreement, (ii) the perfection or maintenance of the security interest
created hereby (including the first priority nature of such security
interest) or (iii) the exercise by the Agent of any rights provided for
in this Pledge Agreement;
(2) The Pledged Interests constitute all of the ownership
interests owned by NMLP in each of the NMLP Subsidiaries;
(3) All the Pledged Interests have been duly and validly
issued and are fully paid. No certificate or other instrument has been
issued at any time to evidence the Pledged Interests that has not been
delivered to the Agent pursuant to Section 3 of this Pledge Agreement.
None of the limited partnership interests or the membership interests
comprising the Collateral are dealt in or traded on securities
exchanges or in securities markets, and none by its terms expressly
provides that it is a security governed by Article 8 of the UCC or that
it is an investment company security, and none is held in a securities
account (as defined in Section 8-501 of the UCC);
(4) NMLP is the sole holder of record and sole beneficial
owner of, and has good and valid title to, the Pledged Interests, free
of any and all liens or options in favor of, or claims of, any other
Person, except the liens in existence on the date hereof and described
on Schedule 1 hereto ("PERMITTED LIENS") and the lien created in favor
of the Agent by this Pledge Agreement;
(5) Upon the filing of the Form UCC-1 Statements referred to
in Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected lien on such Pledged Interests and
related Collateral, subject only to Permitted Liens, with respect to
that portion of the Collateral in which a security interest is
perfected by the filing of a financing statement, enforceable as such
against all creditors of NMLP and any Persons purporting to purchase
any Pledged Interests and related Collateral from NMLP; and
(6) There are no restrictions on the transfer of the
Collateral to the Agent hereunder, or with respect to any subsequent
transfer thereof or realization thereupon by the Agent and/or the
Lenders (or, if there are any such restrictions, such transfer
restrictions have been duly waived by all required parties), and, as
set forth in the Consents, NMLP has obtained all consents needed in
connection with any such transfer or subsequent transfer, subject to
matters resulting from the operation of law.
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6. Covenants. NMLP covenants and agrees with Agent and the Lenders that
from and after the date of this Pledge Agreement until this Pledge Agreement
shall be terminated:
(1) If NMLP shall, as a result of its ownership of the Pledged
Interests, become entitled to receive or shall receive (i) any limited
liability company certificate (including, without limitation, any
certificate representing a dividend or a Distribution in connection
with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or
rights, (ii) any stock, (iii) any limited partnership interests
(including, without limitation, any certificate representing a dividend
or a Distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights, or (iv) any property other than
cash, whether in addition to, in substitution of, as a conversion of,
or in exchange for any of the Pledged Interests, or otherwise in
respect thereof, NMLP shall accept the same as Agent's agent, hold the
same in trust for Agent and deliver the same forthwith to Agent in the
exact form received, duly endorsed by NMLP to Agent, if required,
together with an undated assignment or power covering such certificate,
duly executed in blank and with, if Agent so requests, signature
guaranteed, to be held by Agent hereunder as additional security for
the NMLP Obligations.
(2) Without the prior written consent of Agent, NMLP will not,
directly or indirectly (i) vote to enable, or take any other action to
permit, the issuer(s) of the Pledged Interests to issue any interests
or shares, as applicable, or to issue any other securities convertible
into or granting the right to purchase or exchange for any interests of
the issuer(s) of the Pledged Interests, or (ii) if prohibited by the
Loan Agreement, sell, assign, transfer, exchange or otherwise dispose
of, or grant any option with respect to, the Collateral, or (iii)
create, incur or permit to exist any lien or option in favor of, or any
claim of any person or entity with respect to, any of the Collateral,
or any interest therein, except for the lien provided for by this
Pledge Agreement and liens permitted under the Loan Agreement. NMLP
will defend the right, title and interest of Agent in and to the
Collateral against the claims and demands of all Persons whomsoever.
(3) At any time and from time to time, upon the written
request of Agent, and at the sole expense of NMLP, NMLP will promptly
and duly execute and deliver such further instruments and documents and
take such further actions as Agent may reasonably request for the
purposes of obtaining or preserving the full benefits of this Pledge
Agreement and of the rights and powers herein granted.
(4) If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel
paper shall be promptly delivered to Agent, duly endorsed in a manner
satisfactory to Agent, to be held as Collateral pursuant to this Pledge
Agreement.
(5) NMLP agrees to pay, and to indemnify and save Agent
harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other
taxes (other than income taxes on the income of Agent or any of the
Lenders) which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions
contemplated by this Pledge Agreement.
(6) NMLP shall, upon request from the Agent, from time to
time, cause the issuer of any securities comprising any of the
Collateral which may be, but have not been, certificated, to issue
certificates with respect thereto in the name of NMLP or, if so
requested by the Agent, in the name of the Agent as secured party.
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(7) Unless otherwise required pursuant to the Integrated
Obligations, NMLP shall not exercise any right with respect to the
Collateral which would dilute or adversely affect Agent's rights in the
Collateral.
7. Cash Dividends; Distributions; Voting Rights.
(1) Unless an Event of Default shall have occurred and be
continuing, NMLP shall be permitted to exercise all voting rights with
respect to the Pledged Interests; provided, however, that, unless
otherwise required pursuant to the Integrated Obligations, NMLP shall
not, without the prior written consent of Agent in each instance, which
consent shall not be unreasonably withheld, vote the Collateral in
favor of, or consent to, any resolution or action which does or might:
(1) impose any restrictions upon the sale,
transfer or disposition of the Collateral
other than restrictions, if any, the
application of which is waived to the full
satisfaction of the Agent as to the
Collateral; or
(2) result in the issuance of any additional
interest in the NMLP Subsidiaries, or of any
class of security, which issuance might
adversely affect the value of the
Collateral; or
(3) vest additional powers, privileges,
preferences or priorities to any other class
of interest in the NMLP Subsidiaries to the
detriment of the value of, or rights
accruing to, the Collateral; or
(4) except as permitted in the Loan Agreement,
permit the NMLP Subsidiaries to sell,
transfer, assign, pledge, mortgage or
otherwise encumber any property owned by any
of them, or to incur any new indebtedness in
respect of such property, unless Agent has
given its prior written consent.
(2) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation,
Sections 7.1.14, 7.1.15 and 7.1.16 thereof), the Consents, the Payment
Direction Letters and the Cash Management Agreement (including, without
limitation, Section 2.2 thereof), NMLP agrees that, unless and until
NMLP is otherwise required pursuant to the Integrated Obligations, any
and all cash dividends or Distributions or any other payments received
by NMLP in respect of the Collateral shall be directly deposited in a
designated Depository Account in the name of NMLP.
(3) NMLP agrees that, unless and until NMLP is otherwise
required pursuant to the Integrated Obligations, to the extent that
NMLP receives directly any cash dividends or Distributions or any other
payments which are required to be deposited in a designated Depository
Account as provided for in the Loan Agreement, the Consents and/or the
Cash Management Agreement, then (i) such amounts shall be deemed to be
Collateral and shall be held in trust for the benefit of Agent, (ii)
such amounts shall not be commingled with any other funds or property
of NMLP, and (iii) NMLP shall deposit such amounts in the applicable
Depository Account within three Business Days of receipt.
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8. Rights of Agent.
(1) If an Event of Default shall have occurred and be
continuing, Agent shall have the right to receive any and all cash
dividends or Distributions or other payments paid in respect of the
Collateral and make application thereof to the NMLP Obligations, in
such order as Agent, in its sole discretion, may elect. In connection
therewith, if an Event of Default shall have occurred and be
continuing, the Agent shall have the right to direct the issuer(s) of
the Pledged Interests to pay all such cash dividends or Distributions
or other payments directly to the Agent or as otherwise directed by the
Agent.
(2) If an Event of Default shall have occurred and be
continuing, then all such Pledged Interests at Agent's option shall be
registered in the name of Agent or its nominee, and Agent or its
nominee may thereafter exercise (x) all voting and other rights
pertaining to such Pledged Interests and (y) any and all rights of
conversion, exchange, subscription and any other rights, privileges or
options pertaining to such Pledged Interests as if Agent were the
absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Interests upon
the merger, consolidation, reorganization, recapitalization or other
fundamental change in the organizational structure of NMLP, or upon the
exercise by NMLP or Agent of any right, privilege or option pertaining
to such Pledged Interests, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Interests with any
committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability except to account for property actually received by it, but
Agent shall have no duty to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay
in so doing.
(3) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against
NMLP or against any other person or entity which may be or become
liable in respect of all or any part of the NMLP Obligations or against
any other Collateral security therefor, guarantee thereof or right of
offset with respect thereto. Agent shall not be liable for any failure
to demand, collect or realize upon all or any part of the Collateral or
for any delay in doing so, nor shall it be under any obligation to sell
or otherwise dispose of any Collateral upon the request of NMLP or any
other person or entity or to take any other action whatsoever with
regard to the Collateral or any part thereof.
9. Actions By Agent. NMLP hereby designates Agent as the
attorney-in-fact of NMLP to: (a) after the occurrence and during the continuance
of an Event of Default, endorse in favor of Agent any of the Collateral; (b)
after the occurrence and during the continuance of an Event of Default, cause
the transfer of any of the Collateral in such name as Agent may from time to
time determine; (c) cause the issuance of certificates for book entry and/or
uncertificated securities; (d) renew, extend or roll over any Collateral; (e)
make, demand and initiate actions to enforce any of the Collateral or rights
therein; and (f) take any other action to effectuate the terms and provisions of
this Pledge Agreement. Agent may take such action with respect to the Collateral
as Agent may reasonably determine to be necessary to protect and preserve its
interest in the Collateral. Except as otherwise provided herein, all of the
rights, remedies, powers, privileges and discretions included in this Section 9
may be exercised by Agent whether or not the NMLP Obligations are then due and
whether or not an Event of Default has occurred. The within designation and
grant of power of attorney is coupled with an interest, is irrevocable until the
lien created by this Pledge Agreement is terminated by a written instrument
executed by a duly authorized officer of Agent. The power of attorney shall not
be affected by subsequent disability or incapacity of NMLP. Agent shall not be
liable for any act or omission to act pursuant to this Section 9, except for any
act or omission to act which is in actual bad faith.
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10. Remedies.
(1) If an Event of Default shall have occurred and be
continuing, Agent may exercise, in addition to all other rights and
remedies granted in this Pledge Agreement and in any other instrument
or agreement securing, evidencing or relating to the NMLP Obligations,
all rights and remedies of a secured party under the UCC. Without
limiting the generality of the foregoing, Agent, if an Event of Default
shall have occurred and be continuing, without demand of performance or
other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon NMLP
or any other person or entity (all and each of which demands,
presentments, protests, advertisements or notices are hereby waived),
may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith
sell, assign, give option or options to purchase or otherwise dispose
of and deliver the Collateral or any part thereof (or contract to do
any of the foregoing), in one or more parcels at public or private sale
or sales, in the over-the-counter market, at any exchange, broker's
board or office of Agent or elsewhere upon such terms and conditions as
it may deem advisable and at such prices as it may deem best, for cash
or on credit or for future delivery without assumption of any credit
risk. Agent shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold,
free of any right or equity of redemption in NMLP, which right or
equity is hereby waived or released. Agent shall apply any Proceeds
from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of
Agent hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the NMLP
Obligations, in such order as Agent may elect, and only after such
application and after the payment by Agent of any other amount required
by any provision of law, including, without limitation, Section
9-615(a) of the UCC, need Agent account for the surplus, if any, to
NMLP. To the extent permitted by applicable law, NMLP waives all
claims, damages and demands it may acquire against Agent arising out of
the exercise by Agent of any of its rights hereunder, except for any
claims, damages and demands it may have against Agent arising from the
gross negligence or willful misconduct of Agent. If any notice of a
proposed sale or other disposition of Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. NMLP shall remain
liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the NMLP Obligations
and the fees and disbursements of any attorneys employed by Agent to
collect such deficiency.
(2) If any Event of Default occurs and is continuing, any
deposits, balances or other sums credited by or due from Agent, any
affiliate of Agent or FleetBoston Financial Corporation or any of the
Lenders, or from any affiliate of any of the Lenders, to NMLP may to
the fullest extent not prohibited by applicable law at any time or from
time to time, without regard to the existence, sufficiency or adequacy
of any other collateral, and without notice or compliance with any
other condition precedent now or hereafter imposed by statute, rule of
law or otherwise, all of which are hereby waived to the fullest extent
permitted by law, be set off, appropriated and applied by Agent against
any or all of the NMLP Obligations irrespective of whether demand shall
have been made and although such obligations may be unmatured, in such
manner as Agent in its sole and absolute discretion may determine.
Within three (3) Business Days of making any such set off,
appropriation or application, Agent agrees to notify NMLP thereof,
provided the failure to give such notice shall not affect the validity
of such set off or appropriation or application. ANY AND ALL RIGHTS TO
REQUIRE AGENT OR ANY OF THE LENDERS TO EXERCISE ITS
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RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES
THE NMLP LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF NMLP, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
11. Private Sales.
(1) NMLP recognizes that Agent may be unable to effect a
public sale of any or all the Pledged Interests, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. NMLP acknowledges
and agrees that any such private sale may result in prices and other
terms less favorable to Agent than if such sale were a public sale.
Agent shall be under no obligation to delay a sale of any of the
Pledged Interests for the period of time necessary to permit NMLP to
register such securities for public sale under the Securities Act of
1933, as amended, or under applicable state securities laws, even if
NMLP would agree to do so.
(2) NMLP further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make any sale or
sales of all or any portion of the Pledged Interests pursuant to this
paragraph 11 valid and binding and in compliance with any and all other
applicable requirements of law; provided, however, that NMLP shall be
under no obligation to register the Pledged Interests for public sale
under the Securities Act of 1933, as amended, or under applicable state
securities laws. NMLP further agrees that a breach of any of the
covenants contained in this paragraph 11 will cause irreparable injury
to Agent, that Agent has no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in
this paragraph 11 shall be specifically enforceable against NMLP, and
NMLP hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense
that no default has occurred with respect to the NMLP Obligations.
12. Limitation on Duties Regarding Collateral. Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9- 207 of the UCC or otherwise, shall be to
deal with it in the same manner as Agent deals with similar securities and
property for its own account. Neither Agent nor any of its directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
NMLP or otherwise.
13. Financing Statements; Other Documents. This Pledge Agreement
constitutes an authenticated record, and NMLP hereby authorizes the Agent to
file one or more UCC-1 financing statements, continuation statements or other
documents with respect to the Collateral, without the signature of NMLP, and in
such filing offices as the Agent shall deem reasonably appropriate. Agent
agrees, however, not to file any such UCC-1 financing statement unless and until
the occurrence of a Trigger Event. NMLP agrees that, immediately upon the
occurrence of a Trigger Event, the Agent shall be authorized to file any or all
of such UCC-1 financing statements as the Agent deems reasonably necessary to
perfect its security interest in the Collateral. NMLP agrees to deliver any
other document or instrument which Agent may reasonably request in connection
with the administration and enforcement of this Pledge Agreement or with respect
to the Collateral for the purposes of obtaining or preserving the full benefits
of this Pledge Agreement and of the rights and powers herein granted.
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14. Powers Coupled with an Interest. All authorizations and agencies
and powers herein contained with respect to the Collateral are irrevocable and
coupled with an interest.
15. Security Interest Absolute. All rights of the Agent hereunder, the
grant of a security interest in the Collateral and all obligations of NMLP
hereunder, shall be absolute and unconditional irrespective of (i) any lack of
validity or enforceability of the Loan Agreement, any agreement with respect to
any of the NMLP Obligations or any other agreement or instrument relating to any
of the foregoing, (ii) any change in time, manner or place of payment of, or in
any other term of, all or any of the NMLP Obligations, or any other amendment or
waiver of or any consent to any departure from the NMLP Note or any other
agreement or instrument, (iii) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of or consent to or
departure from any guarantee, for all or any of the NMLP Obligations, or (iv)
any other circumstance which might otherwise constitute a defense available to
(other than the defense of indefeasible payment), or a discharge of, NMLP in
respect of the NMLP Obligations or in respect of this Pledge Agreement.
16. Fees and Expenses. To the extent provided in the Loan Agreement,
NMLP shall be obligated to, upon demand, pay to the Agent the amount of any and
all reasonable expenses, including the reasonable fees and expenses of its
counsel and of any experts or agents which the Agent or any Lender may incur in
connection with (i) the sale of, collection from, or other realization upon, any
of the Collateral, or (ii) during the continuance of an Event of Default, the
exercise or enforcement of any of the rights of the Agent hereunder. Any such
amounts payable as provided hereunder or thereunder shall be additional
obligations secured hereby and by the other NMLP Security Documents.
17. Termination. Upon the payment in full of the NMLP Obligations, in
immediately available funds, including, without limitation, all unreimbursed
costs and expenses of the Agent and of each Lender for which NMLP is
responsible, the Agent shall release the Collateral granted to the Agent as
provided for herein. However, such release by the Agent shall not be deemed to
terminate or release NMLP from any obligation or liability under this Pledge
Agreement which specifically by its terms survives the payment in full of the
NMLP Obligations.
18. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
19. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction, or be taken into consideration in interpreting, this Pledge
Agreement.
20. No Waiver; Cumulative Remedies. Agent shall not by any act delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of Agent, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
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21. Waivers and Amendments; Successors and Assigns; Governing Law;
Venue. None of the terms or provisions of this Pledge Agreement may be waived,
amended, or otherwise modified except by a written instrument executed by the
party against which enforcement of such waiver, amendment, or modification is
sought. This Pledge Agreement shall be binding upon NMLP, Agent and the Lenders,
and the successors and assigns of each, and shall inure to the benefit of Agent
and the Lenders and their successors and assigns and to the benefit of NMLP and
NMLP's successors and permitted assigns; provided that NMLP shall not have any
right to (i) assign this Pledge Agreement or any interest herein, or (ii) to
assign any interest in the Collateral or any part thereof, or otherwise pledge,
encumber or grant any option with respect to the Collateral or any part thereof,
or any cash or property held by NMLP as Collateral under this Pledge Agreement
if any such assignment, pledge, encumbrance or grant would constitute a
violation of the Loan Agreement. The rights of Agent under this Pledge Agreement
shall automatically be transferred to any transferee to which Agent transfers
the NMLP Note and Loan Agreement pursuant to the terms thereof. The
construction, interpretation, validity, enforceability and effect of all
provisions of this Pledge Agreement including, but not limited to, the payment
of the NMLP Obligations and the legality of the interest rate and other charges
shall be construed and enforced in accordance with the internal laws of The
Commonwealth of Massachusetts (without regard to conflicts of laws). NMLP agrees
to submit to non-exclusive personal jurisdiction in Suffolk County, in The
Commonwealth of Massachusetts in any action or proceeding arising out of this
Pledge Agreement and, in furtherance of such agreement, NMLP hereby agrees and
consents that, without limiting other methods of obtaining jurisdiction,
personal jurisdiction over NMLP in any such action or proceeding may be obtained
within or without the jurisdiction of any court located in The Commonwealth of
Massachusetts and that any process or notice of motion or other application to
any such court in connection with any such action or proceeding may be served
upon NMLP by registered or certified mail to or by personal service at the last
known address of NMLP, whether such address be within or without the
jurisdiction of any such court.
22. Executive Offices. NMLP shall not (i) change the location of its
chief executive offices or sole place of business from the location as of the
date hereof or remove its books and records from such location, or (ii) change
its name, identity or structure if, in either case, such change is prohibited by
the Loan Agreement.
23. Notices. Notices by Agent to NMLP, to be effective, shall be in
writing and shall be hand-delivered or sent by Federal Express, or other
reputable national overnight courier service, or by postage pre-paid registered
or certified mail, return receipt requested, addressed to the Borrower at its
address set forth below its signature hereto, with a copy in each instance to
Post & ▇▇▇▇▇▇▇ LLP at the address set forth in Section 14.1 of the Loan
Agreement, and shall be deemed to have been duly given or made (a) when
delivered if hand-delivered or sent by Federal Express, or other reputable
national overnight courier service, or (b) when delivered if sent by registered
or certified mail. Any communications by NMLP to Agent may be given in any
manner set forth in the immediately preceding sentence, with a copy to ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇ LLP, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., to the addresses set forth
in Section 14.1 of the Loan Agreement.
24. Entire Understanding. Agent acknowledges that this Pledge
Agreement, the NMLP Note and the other NMLP Loan Documents and NMLP Security
Documents set forth the entire agreement and understanding of Lender and NMLP
with respect to the NMLP Loan and that no oral or other agreements,
understanding, representation or warranties exist with respect to the NMLP Loan,
other than those set forth in this Pledge Agreement, the NMLP Note, and the
other NMLP Loan Documents and NMLP Security Documents.
25. Counterpart Signatures. This Pledge Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument.
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IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to
be duly executed and delivered as of the date first above written.
NMLP: THE ▇▇▇▇▇▇▇ MASTER LIMITED PARTNERSHIP,
A Delaware limited partnership
By: MLP GP LLC, its General Partner
By: ▇▇▇▇▇▇▇ MLP Corp., its Manager
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Operating Officer
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2. Principal Place of Business:
c/o First Winthrop Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FLEET NATIONAL BANK,
A national banking association
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇
duly authorized
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SCHEDULE 1
To Pledge
Agreement
DESCRIPTION OF PLEDGED INTERESTS
------------------------------------------------------------------------
Percentage
of
ISSUERS OF PLEDGED TYPE OF Issued
INTERESTS INTEREST Interests Permitted Liens
------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇ LLC Membership 100.0% Integrated Group
------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC Membership 100.0% Integrated Group
------------------------------------------------------------------------
▇▇▇▇▇▇▇ Capital LLC Membership 50.01% Integrated Group
------------------------------------------------------------------------
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