PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of June 29, 1999 (as amended, modified
and/or supplemented from time to time, this "Agreement"), among each of
the undersigned (each, a "Pledgor" and, together with each other entity
which becomes a party hereto pursuant to Section 25, collectively, the
"Pledgors") and BANKERS TRUST COMPANY, not in its individual capacity
but solely as Collateral Agent (the "Pledgee"), for the benefit of the
Secured Creditors (as defined below). Except as otherwise defined
herein, terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Dade Behring Holdings, Inc. ("Holdings"), Dade
Behring Inc. (the "U.S. Borrower"), Dade Behring Holding GmbH (the
"German Borrower"), various financial institutions from time to time
party thereto (the "Banks"), Donaldson, Lufkin & Jenrette Securities
Corporation and Morgan Stanley Senior Funding, Inc., as Co-Documentation
Agents (in such capacity, the "Co-Documentation Agents"), Goldman Sachs
Credit Partners L.P., as Syndication Agent, Co-Arranger and Co-Lead Book
Runner (in such capacity, the "Syndication Agent"), and Bankers Trust
Company, as Administrative Agent, Co-Arranger and Co-Lead Book Runner
(in such capacity, the "Administrative Agent," and together with the Co-
Documentation Agent, the Syndication Agent, the Pledgee, and the Banks,
the "Bank Creditors"), have entered into a Credit Agreement, dated as of
June 29, 1999 (as amended, modified or supplemented from time to time,
the "Credit Agreement), providing for the making of Loans to the
Borrowers and the issuance of, and participation in, Letters of Credit
for the account of the U.S. Borrower, all as contemplated therein;
WHEREAS, each of the Borrowers may from time to time be party
to one or more (i) interest rate agreements, interest rate cap
agreements, interest rate collar agreements or other similar agreements
or arrangements, (ii) foreign exchange contracts, currency swap
agreements or similar agreements or arrangements designed to protect
against the fluctuations in currency values and/or (iii) other types of
hedging agreements from time to time (each such agreement or arrangement
with an Other Creditor (as hereinafter defined), an "Interest Rate
Protection Agreement or Other Hedging Agreement"), with a Bank or an
affiliate of a Bank (each such Bank or affiliate, even if the respective
Bank subsequently ceases to be a Bank under the Credit Agreement for any
reason, together with such Bank's or affiliate's successors and assigns,
collectively, the "Other Creditors", and together with the Bank
Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
guaranteed to the Secured Creditors the payment when due of all
obligations and liabilities of each of the Borrowers under or with
respect to the Credit Documents and the Interest Rate Protection
Agreements and other Hedging Agreements;
WHEREAS, pursuant to the U.S. Borrower Guaranty, the U.S.
Borrower has guaranteed to the Secured Creditors the payment when due of
all obligations and liabilities of the German Borrower under or with
respect to the Credit Documents and the Interest Rate Protection
Agreements and Other Hedging Agreements;
WHEREAS, pursuant to a Subsidiary Guaranty, dated as of June
__, 1999 (as amended, modified and/or supplemented from time to time,
the "Subsidiaries Guaranty"), each Pledgor (other than the U.S. Borrower
and Holdings) has jointly and severally guaranteed to the Secured
Creditors the payment when due of all obligations and liabilities of
each of the Borrowers under or with respect to the Credit Documents and
each Interest Rate Protection Agreement and Other Hedging Agreement;
WHEREAS, it is a condition precedent to the making of Loans to
the Borrowers and the issuance of, and participation in, Letters of
Credit for the account of the U.S. Borrower under the Credit Agreement
and to the Other Creditors entering into Interest Rate Protection
Agreements and Other Hedging Agreements that each Pledgor shall have
executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to execute this Agreement in
order to satisfy the conditions precedent described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to
each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations
and warranties to the Pledgee and hereby covenants and agrees with the
Pledgee as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation,
indemnities, Fees and interest thereon) of such Pledgor owing to
the Bank Creditors, whether now existing or hereafter incurred
under, arising out of, or in connection with the Credit Agreement
and the other Credit Documents to which such Pledgor is a party
(including, all such obligations, liabilities and indebtedness of
such Pledgor under its Guaranty) and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained in the Credit Agreement and such other Credit
Documents (all such obligations, liabilities and indebtedness under
this clause (i), except to the extent guaranteeing obligations of
any Borrower under 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,
indemnities, fees and interest thereon) of such Pledgor owing to
the Other Creditors, 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, and the due performance and compliance with
the terms, conditions and agreements of each such Interest Rate
Protection Agreement and Other Hedging Agreement by such Pledgor,
including all obligations, liabilities and indebtedness of such
Pledgor under its Guaranty, in each case, in respect of the
Interest Rate Protection Agreements and Other Hedging Agreements,
and the due performance and compliance by such 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 "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) and/or preserve
its security interest therein;
(iv) in the event of any proceeding for the collection of the
Obligations (as defined below) or the enforcement of this Agreement,
after an Event of Default (such term, as used in this Agreement,
shall mean and include any Event of Default under, and as defined
in, the Credit Agreement and any payment default under any Interest
Rate Protection Agreement or Other Hedging Agreement and shall in
any event include, without limitation, any payment default (after
the expiration of any applicable grace period) on any of the
Obligations) shall have occurred and be continuing, the reasonable
expenses of retaking, holding, preparing for sale or lease, selling
or otherwise disposing of or realizing on the Collateral, or of any
exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Indemnitee to which such
Indemnitee has the right to reimbursement under Section 11 of this
Agreement,
all such obligations, liabilities, indebtedness, sums and expenses set
forth in clauses (i) through (v) of this Section 1 being collectively
called the "Obligations", it being acknowledged and agreed that the
"Obligations" shall include extensions of credit of the types described
above, whether outstanding on the date of this Agreement or extended
from time to time after the date of this Agreement.
2. DEFINITIONS; ANNEXES. (a) Unless otherwise defined
herein, all capitalized terms used herein and defined in the Credit
Agreement shall be used herein as therein defined. Reference to
singular terms shall include the plural and vice versa.
(b) The following capitalized terms used herein shall have
the definitions specified below:
"Administrative Agent" 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.
"Bank" shall have the meaning set forth in the recitals
hereto.
"Bank Creditors" shall have the meaning set forth in the
recitals hereto.
"Borrowers" shall mean the U.S. Borrower and the German
Borrower.
"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 hereof.
"Domestic Corporation" shall have the meaning set forth in the
definition of "Stock."
"Event of Default" shall have the meaning set forth in Section
1 hereof.
"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."
"Indemnitees" shall have the meaning set forth in Section 11
hereof.
"Instrument" shall have the meaning given such term in Section
9-105(1)(i) of the UCC.
"Interest Rate Protection Agreement" shall have the meaning
set forth in the first paragraph hereof.
"Investment Property" shall have the meaning given such term
in Section 9-115(f) of the UCC.
"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 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 (excluding any obligation of
any Pledgor to make any unpaid or uncalled capital commitments or
contributions (or any other payments of a similar nature) in respect of
any such limited liability company).
"Non-Voting Stock" shall mean all capital stock of any Foreign
Corporation which is not Voting Stock.
"Notes" shall mean (x) all intercompany notes at any time
issued to each Pledgor and (y) all other promissory notes from time to
time issued to, or held by, each Pledgor.
"Obligations" shall have the meaning set forth in Section 1
hereof.
"Other Hedging Agreement" shall have the meaning set forth in
the first paragraph hereof.
"Other Creditors" shall have the meaning set forth in the
first paragraph hereof.
"Other 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 in other partnerships),
at any time owned 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
(excluding any obligation of any Pledgor to make any unpaid or uncalled
capital commitments or contributions (or any other payments of a similar
nature) in respect of any such 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.
"Proceeds" shall have the meaning given such term in Section
9-306(l) of the UCC.
"Required Banks" shall have the meaning given such term in the
Credit Agreement.
"Secured Creditors" shall have the meaning set forth in the
first paragraph hereof.
"Secured Debt Agreements" shall have the meaning set forth in
Section 5 hereof.
"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.
"Security" and "Securities" shall have the meaning given such
term in Section 8-102(a)(15) of the UCC and shall in any event include
all Stock and Notes (to the extent same constitute "Securities" under
Section 8-102(a)(15)).
"Security Entitlement" shall have the meaning given such term
in Section 8-102(a)(17) of the UCC.
"Specified Default" shall have the meaning provided such term
in Section 5.
"Stock" shall mean (x) with respect to corporations
incorporated under the laws of the United States or any State or
territory thereof (each, a "Domestic Corporation"), all of the issued
and outstanding shares of capital stock of any Domestic Corporation at
any time owned by any Pledgor and (y) with respect to corporations not
Domestic Corporations (each, a "Foreign Corporation"), all of the issued
and outstanding shares of capital stock at any time directly owned by
any Pledgor of any Foreign Corporation (other than Dade Diagnostics Pty.
Ltd., an Australian corporation and a Subsidiary of Holdings).
"Syndication Agent" shall have the meaning set forth in the
recitals hereto.
"Termination Date" shall have the meaning set forth in
Section 19 hereof.
"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 Stock" shall have the meaning provided in Section
3.1.
3. PLEDGE OF SECURITY INTEREST, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed
or to be performed by such Pledgor, each Pledgor does hereby grant,
pledge and assign to the Pledgee for the benefit of the Secured
Creditors, and does hereby create a continuing security interest
(subject to those Liens permitted to exist with respect to the
Collateral pursuant to the terms of all Secured Debt Agreements then in
effect) in favor of the Pledgee for the benefit of the Secured Creditors
in, all of the right, title and interest in and to the following,
whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security
Agreement), including any and all assets of whatever type or kind
deposited by such Pledgor in such Collateral Account, whether now
owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets, Investment Property,
moneys, checks, drafts, Instruments, Securities or interests
therein of any type or nature deposited or required by the Credit
Agreement or any other Secured Debt Agreement to be deposited in
such Collateral Account, and all investments and all certificates
and other Instruments (including depository receipts, if any) from
time to time representing or evidencing the same, and all
dividends, interest, distributions, cash and other property from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(b) all Securities of such Pledgor from time to time;
(c) all Limited Liability Company Interests of such Pledgor
from time to time and all of its right, title and interest in each
limited liability company to which each such interest relates,
whether now existing or hereafter acquired, including, without
limitation:
(A) all its capital therein and its interest in all
profits, losses, Limited Liability Company Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company
Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of such
Limited Liability Company Interests;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take
any and all other action on behalf of and in the name of any
of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and
to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to
time and all of its right, title and interest in each partnership
to which each such interest relates, whether now existing or
hereafter acquired, including, without limitation:
(A) all its capital therein and its interest in all
profits, losses, Partnership Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of
such Partnership Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under any
partnership agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law or otherwise in respect of such Partnership
Interests;
(D) all present and future claims, if any, of such
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and
privilege of such Pledgor relating to such Partnership
Interests, including any power to terminate, cancel or modify
any partnership agreement or operating agreement, to execute
any instruments and to take any and all other action on behalf
of and in the name of any of such Pledgor in respect of such
Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Partnership Asset, to enforce or execute any checks, or
other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing (with all
of the foregoing rights only to be exercisable upon the
occurrence and during the continuation of an Event of
Default); and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to
time in any and all of the foregoing;
(f) all Financial Assets and Investment Property of such
Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing;
provided that (x) except in the circumstances and to the extent provided
by Section 7.16 of the Credit Agreement (in which case this clause (x)
shall no longer be applicable), capital stock entitled to vote for
directors of any Foreign Corporation (herein called "Voting Stock")
which represents more than 65% of the total combined voting power of all
classes of Voting Stock of the respective Foreign Corporation shall not
be required to be pledged hereunder and (y) each Pledgor shall be
required to pledge hereunder 100% of the issued and outstanding shares
of all Non-Voting Stock at any time owned by such Pledgor of any Foreign
Corporation, which Non-Voting Stock shall not be subject to the
limitations described in preceding clause (x).
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 the respective Pledgor) be pledged
pursuant to Section 3.1 of this Agreement and, in addition thereto, such
Pledgor shall (to the extent provided below) take the following actions
as set forth below (as promptly as practicable and, in any event, within
10 days after it obtains such Collateral) for the benefit of the Pledgee
and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall physically deliver such
Certificated Security to the Pledgee, endorsed to the Pledgee or
endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall cause the issuer of such
Uncertificated Security to duly authorize and execute, and deliver
to the Pledgee, an agreement for the benefit of the Pledgee and the
other Secured Creditors substantially in the form of Annex G hereto
(appropriately completed to the satisfaction of the Pledgee and
with such modifications, if any, as shall be satisfactory to the
Pledgee) pursuant to which such issuer agrees to comply with any
and all instructions originated by the Pledgee without further
consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership
Interests and Limited Liability Company Interests issued by such
issuer) originated by any other Person other than a court of
competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company
Interest credited on the books of a Clearing Corporation (including
a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), the respective Pledgor shall promptly
notify the Pledgee thereof and shall promptly take all actions (x)
required (i) to comply with the applicable rules of such Clearing
Corporation and (ii) to perfect the security interest of the
Pledgee under applicable law (including, in any event, under
Sections 9-115 (4)(a) and (b), 9-115 (1)(e) and 8-106(d) of the
UCC) and (y) as the Pledgee deems necessary or desirable to effect
the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than a Partnership Interest or
Limited Liability Interest credited on the books of a Clearing
Corporation), (1) if such Partnership Interest or Limited Liability
Company Interest is represented by a certificate, the procedure set
forth in Section 3.2(a)(i), and (2) if such Partnership Interest or
Limited Liability Company Interest is not represented by a
certificate, the procedure set forth in Section 3.2(a)(ii);
(v) with respect to any Note, physical delivery of such Note
to the Pledgee, endorsed to the Pledgee or endorsed in blank; and
(vi) after an Event of Default has occurred and is continuing,
with respect to cash, to the extent not otherwise provided in the
Security Agreement, (i) establishment by the Pledgee of a cash
account in the name of such Pledgor over which the Pledgee shall
have exclusive and absolute control and dominion (and no
withdrawals or transfers may be made therefrom by any Person except
with the prior written consent of the Pledgee) and (ii) deposit of
such cash in such cash account.
(b) In addition to the actions required to be taken pursuant
to preceding Section 3.2(a), each Pledgor shall take the following
additional actions with respect to the Securities and Collateral (as
defined below):
(i) with respect to all Collateral of such Pledgor whereby or
with respect to which the Pledgee may obtain "control" thereof
within the meaning of Section 8-106 of the UCC (or under any
provision of the UCC as same may be amended or supplemented from
time to time, or under the laws of any relevant State other than
the State of New York), the respective Pledgor shall take all
actions as may be requested from time to time by the Pledgee so
that "control" of such Collateral is obtained and at all times held
by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form)
under the Uniform Commercial Code as in effect in the various
relevant States, on form covering all Collateral hereunder (with
the form of such financing statements to be satisfactory to the
Pledgee), to be filed in the relevant filing offices so that at all
times the Pledgee has a security interest in all Investment
Property and other Collateral which is perfected by the filing of
such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant
States, including, without limitation, Section 9-115(4)(b) of the
UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional
Collateral at any time or from time to time after the date hereof, such
Collateral shall automatically (and without any further action being
required to be taken) be subject to the pledge and security interests
created pursuant to Section 3.1 and, furthermore, such Pledgor will
promptly thereafter take (or cause to be taken) all action with respect
to such Collateral in accordance with the procedures set forth in
Section 3.2, and will promptly thereafter deliver to the Pledgee (i) a
certificate executed by a principal executive officer of such Pledgor
describing such Collateral and certifying that the same has been duly
pledged in favor of the Pledgee (for the benefit of the Secured
Creditors) hereunder and (ii) supplements to Annexes A through F hereto
as are necessary to cause such annexes to be complete and accurate at
such time. Without limiting the foregoing, each Pledgor shall be
required to pledge hereunder any shares of stock at any time and from
time to time after the date hereof acquired by such Pledgor of any
Foreign Corporation, provided that any pledge of the Voting Stock of any
Foreign Corporation shall be subject to the provisions of clause (x) of
the proviso to Section 3.1 hereof to the extent same is then applicable.
3.4 Transfer Taxes. Each pledge of Collateral under Section
3.1 or Section 3.3 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 A hereto; (ii) the Stock held by such
Pledgor consists of the number and type of shares of the stock of the
corporations as described in Annex B hereto; (iii) such Stock
constitutes that percentage of the issued and outstanding capital stock
of the issuing corporation as is set forth in Annex B hereto; (iv) the
Notes held by such Pledgor consist of the promissory notes described in
Annex C hereto where such Pledgor is listed as the lender; (v) the
Limited Liability Company Interests held by such Pledgor consist of the
number and type of interests of the Persons described in Annex D hereto;
(vi) each such Limited Liability Company Interest constitutes that
percentage of the issued and outstanding equity interest of the issuing
Person as set forth in Annex D hereto; (vii) the Partnership Interests
held by such Pledgor consist of the number and type of interests of the
Persons described in Annex E hereto; (viii) each such Partnership
Interest constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex E hereto;
(ix) the Pledgor has complied with the respective procedure set forth in
Section 3.2(a) with respect to each item of Collateral described in
Annexes A through E hereto; and (x) on the date hereof, such Pledgor
owns no other Securities, Limited Liability Company Interests or
Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee
shall 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 an Event of Default or a
Default under Section 9.01 or 9.05 of the Credit Agreement (each such
Default, a "Specified Default"), each Pledgor shall be entitled to
exercise all voting rights attaching to any and all Collateral owned by
it, and to give consents, waivers or ratifications in respect thereof,
provided that no vote shall be cast or any consent, waiver or
ratification given or any action taken which would violate, result in
breach of any covenant contained in, or be inconsistent with, any of the
terms of this Agreement, the Credit Agreement, any other Credit Document
or any Interest Rate Protection Agreement or Other Hedging Agreement
(collectively, the "Secured Debt Agreements"), or which would have the
effect of impairing the value of the Collateral or any part thereof or
the position or interests of the Pledgee or any other Secured Creditor
therein, except to the extent such violation, inconsistency or
impairment shall be waived in accordance with the terms of Section 22
hereof. All such rights of a Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default or a
Specified Default shall occur and be continuing and Section 7 hereof
shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until an
Event of Default or a Specified Default shall have occurred and be
continuing, all cash dividends, cash distributions, cash Proceeds and
other cash amounts payable in respect of the Collateral shall be paid to
the respective Pledgor; provided, that all cash dividends payable in
respect of the Pledged Stock which are determined by the Pledgee to
represent in whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be paid, to the extent so
determined to represent an extraordinary, liquidating or other
distribution in return of capital, to the Pledgee and retained by it as
part of the Collateral. Subject to Section 3.2 hereof, the Pledgee
shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash
dividends other than as set forth above) paid or distributed by way
of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) paid
or distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) which
may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way
the Pledgee's right to receive the proceeds of the Collateral in any
form in accordance with Section 3 of this Agreement. All dividends,
distributions or other payments which are received by the respective
Pledgor contrary to the provisions of this Section 6 or Section 7 shall
be received 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 OR A SPECIFIED
DEFAULT. In the event an Event of Default or a Specified Default shall
have occurred and be continuing, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in it by
this Agreement or by any other Secured Debt Agreement or by law) for the
protection and enforcement of its rights in respect of the Collateral,
including, without limitation, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code of the State of New
York, and the Pledgee shall be entitled, without limitation, to exercise
any or all of the following rights, which each Pledgor hereby agrees to
be commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 to such Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees; provided,
however, that the failure to give such notice shall not affect the
validity of such transfer;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to
collect upon any Pledged Note (including, without limitation, to
make any demand for payment thereon);
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright
owner thereof (each Pledgor hereby irrevocably constituting and
appointing the Pledgee the proxy and attorney-in-fact of such
Pledgor, with full power of substitution to do so);
(v) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention
to sell or of the time or place of sale or adjournment thereof or
to redeem or otherwise (all of which are hereby waived by each
Pledgor), for cash, on credit or for other property, for immediate
or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided that at least 10 days'
notice of the time and place of any such sale shall be given to
such Pledgor. The Pledgee shall not be obligated to make such sale
of Collateral regardless of whether any such notice of sale has
theretofore been given. Each purchaser at any such sale shall hold
the property so sold absolutely free from any claim or right on the
part of each Pledgor, and each Pledgor hereby waives and releases
to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after
sale hereunder, all rights, if any, of marshalling the Collateral
and any other security for the Obligations or otherwise, and all
rights, if any, of stay and/or appraisal which it now has or may at
any time in the future have under rule of law or statute now
existing or hereafter enacted. At any such sale, unless prohibited
by applicable law, the Pledgee on behalf of all Secured Creditors
(or certain of them) may bid for and purchase (by bidding in
Obligations or otherwise) all or any part of the Collateral so sold
free from any such right or equity of redemption. Neither the
Pledgee nor any other Secured 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.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy
of the Pledgee provided for in this Agreement or any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to
every other such right, power or remedy. The exercise or beginning of
the exercise by the Pledgee or any other Secured 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. Unless
otherwise required by the Credit Documents, no notice to or demand on
any Pledgor in any case shall entitle such Pledgor to any other or
further notice or demand in similar other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor
to any other or further action in any circumstances without demand or
notice. The Secured Creditors agree that this Agreement may be enforced
only by the action of the Pledgee, acting upon the instructions of the
Required Banks (or, after the date on which all Credit Document
Obligations have been paid in full, the holders of at least a majority
of the outstanding Other Obligations) 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 or the holders of at least a majority of the outstanding
Other Obligations, as the case may be, for the benefit of the Secured
Creditors upon the terms of this Agreement and the other Credit
Documents.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to
the terms of this Agreement, together with all other moneys received by
the Pledgee hereunder, shall be applied to the payment of the
Obligations in the manner provided in Section 7.4 of the Security
Agreement. (b) It is understood and agreed that the Pledgors shall
remain jointly and severally liable to the extent of any deficiency
between the amount of proceeds of the Collateral hereunder and the
aggregate amount of the Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the
Collateral by the Pledgee hereunder (whether by virtue of the power of
sale herein granted, pursuant to judicial process or otherwise), the
receipt of the Pledgee or the officer making such sale of the purchase
money paid as consideration pursuant to 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 and hold harmless the Pledgee, each other Secured Creditor
and their respective successors, assigns, employees, agents and servants
(individually an "Indemnitee", and collectively, the "Indemnitees") from
and against any and all claims, demands, losses, judgments and
liabilities (including liabilities for penalties) of whatsoever kind or
nature, and (ii) to reimburse each Indemnitee for all reasonable costs
and expenses, including reasonable attorneys' fees, in each case arising
out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any
other Secured Debt Agreement (but excluding any claims, demands, losses,
judgments and liabilities (including liabilities for penalties) or
expenses of whatsoever kind or nature to the extent incurred or arising
by reason of gross negligence or willful misconduct of such Indemnitee).
In no event shall any Indemnitee hereunder be liable, in the absence of
gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for monies
or other property actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under
this Section 11 are unenforceable for any reason, each Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law. The
indemnity obligations of each Pledgor contained in this Section 11 shall
continue in full force and effect notwithstanding the full payment of
all the Notes issued under the Credit Agreement, the termination of all
Interest Rate Protection and Other Hedging Agreements and Letters of
Credit, and the payment of all other Obligations and notwithstanding the
discharge thereof.
12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such
Pledgor's own expense, file and refile under the Uniform Commercial Code
such financing statements, continuation statements and other documents
in such offices as the Pledgee (acting on its own or on the instructions
of the Required Banks) may reasonably deem necessary or appropriate and
wherever required or permitted by law in order to perfect and preserve
the Pledgee's security interest in the Collateral hereunder and hereby
authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such
further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the
Pledgee may reasonably require or deem advisable to carry into effect
the purposes of this Agreement or to further assure and confirm unto the
Pledgee its rights, powers and remedies hereunder or thereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, from time to time
after the occurrence and during the continuance of an Event of Default,
in the Pledgee's discretion to take any action and to execute any
instrument which the Pledgee may deem necessary or advisable to
accomplish the purposes of this Agreement.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold
in accordance with this Agreement all items of the Collateral at any
time received under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral
and interests therein and with respect to the disposition thereof, and
otherwise under this Agreement, are only those expressly set forth in
this Agreement. The Pledgee shall act hereunder on the terms and
conditions set forth herein and in Section 11 of the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. Except for sales or
dispositions of Collateral permitted pursuant to the Credit Agreement,
no Pledgor will sell or otherwise dispose of, grant any option with
respect to, or mortgage, pledge or otherwise encumber any of the
Collateral or any interest therein (except in accordance with the terms
of this Agreement and the other Secured Debt Agreements).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS. (a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all Collateral consisting of one or
more Securities and that it has sufficient interest in all
Collateral in which a security interest is purported to be created
hereunder for such security interest to attach (subject, in each
case, to no pledge, lien, mortgage, hypothecation, security
interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement or permitted under the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all
the Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and
binding obligation of such Pledgor enforceable against such Pledgor
in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no consent
of any other party (including, without limitation, any stockholder,
member, partner or creditor of such Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental
authority is required to be obtained by such Pledgor in connection
with (a) the execution, delivery or performance of this Agreement,
(b) the validity or enforceability of this Agreement (except as set
forth in clause (iii) above), (c) the perfection or enforceability
of the Pledgee's security interest in the Collateral or (d) except
for compliance with or as may be required by applicable securities
laws, the exercise by such Pledgee of any of its rights or remedies
provided herein;
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation
or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign,
applicable to such Pledgor, or of the certificate of incorporation,
operating agreement, limited liability company agreement or by-laws
of such Pledgor or of any securities issued by such Pledgor or any
of its Subsidiaries, or of any mortgage, deed of trust, indenture,
lease, loan agreement, credit agreement or other contract,
agreement or instrument or undertaking to which such Pledgor or any
of its Subsidiaries is a party or which purports to be binding upon
such Pledgor or any of its Subsidiaries or upon any of their
respective assets and will not result in the creation or imposition
of (or the obligation to create or impose) any lien or encumbrance
on any of the assets of such Pledgor or any of its Subsidiaries
except as contemplated by this Agreement (other than the Liens
created by the Collateral Documents);
(vi) all of the Collateral (consisting of Securities other than
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 the 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 generally affecting creditors'
rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(viii) the pledge, collateral assignment and delivery to the
Pledgee of the Collateral consisting of certificated securities
pursuant to this Agreement creates a valid and perfected first
priority security interest in such Securities, and the proceeds
thereof, subject to no prior Lien or encumbrance or to any
agreement purporting to grant to any third party a Lien or
encumbrance on the property or assets of such Pledgor which would
include the Securities (other than Permitted Liens) 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 Collateral consisting of
Securities (including Notes which are Securities) with respect to
which such "control" may be obtained pursuant to Section 8-106 of
the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities
and the proceeds thereof against the claims and demands of all persons
whomsoever; and each Pledgor covenants and agrees that it will have like
title to and right to pledge any other property at any time hereafter
pledged to the Pledgee as Collateral hereunder and will likewise defend
the right thereto and security interest therein of the Pledgee and the
other Secured 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.
16. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of each Pledgor is located at the address specified in Annex F
hereto. Each Pledgor will not move its chief executive office except to
such new location as such Pledgor may establish in accordance with the
last sentence of this Section 16. The originals of all documents in the
possession of such Pledgor evidencing all Collateral, including but not
limited to all Limited Liability Company Interests and Partnership
Interests, and the only original books of account and records of such
Pledgor relating thereto are, and will continue to be, kept at such
chief executive office at the location specified in Annex F hereto, or
at such new locations as such Pledgor may establish in accordance with
the last sentence of this Section 16. All Limited Liability Company
Interests and Partnership Interests are, and will continue to be,
maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, such chief executive
office location specified in Annex F hereto, or such new locations as
the respective Pledgor may establish in accordance with the last
sentence of this Section 16. No Pledgor shall establish a new location
for such offices until (i) it shall have given to the Collateral Agent
not less than 30 days' prior written notice of its intention so to do,
clearly describing such new location and providing such other
information in connection therewith as the Collateral Agent may
reasonably request and (ii) with respect to such new location, it shall
have taken all action, satisfactory to the Collateral Agent, to maintain
the security interest of the Collateral Agent in the Collateral intended
to be granted hereby at all times fully perfected and in full force and
effect. Promptly after establishing a new location for such offices in
accordance with the immediately preceding sentence, the respective
Pledgor shall deliver to the Pledgee a supplement to Annex F hereto so
as to cause such Annex F hereto to be complete and accurate.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional
and shall remain in full force and effect without regard to, and shall
not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever (other than termination of
this Agreement pursuant to Section 19 hereof), including, without
limitation:
(i) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from any Secured Debt
Agreement (other than this Agreement in accordance with its terms),
or any other instrument or agreement referred to therein, or any
assignment or transfer of any thereof;
(ii) any waiver, consent, extension, indulgence or other action
or inaction under or in respect of any such agreement or instrument
or this Agreement (other than a waiver, consent or extension with
respect to this Agreement in accordance with its terms);
(iii) any furnishing of any additional security to the Pledgee
or its assignee or any acceptance thereof or any release of any
security by the Pledgee or its assignee;
(iv) any limitation on any party's liability or obligations
under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding
relating to any Pledgor or any Subsidiary of any Pledgor, or any
action taken with respect to this Agreement by any trustee or
receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the
foregoing.
18. SALE OF COLLATERAL WITHOUT REGISTRATION. (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 of 1933, 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 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, and such Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the
Pledgee may, in its sole and absolute discretion, sell such Collateral
or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration.
Without limiting the generality of the foregoing, in any such event the
Pledgee, in its sole and absolute discretion: (i) may proceed to make
such private sale notwithstanding that a registration statement for the
purpose of registering such Collateral or part thereof shall have been
filed under such Securities Act; (ii) may approach and negotiate with a
single possible purchaser to effect such sale; and (iii) may restrict
such sale to a purchaser who will represent and agree that such
purchaser is purchasing for its own account, for investment, and not
with a view to the distribution or sale of such Collateral or part
thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the
Collateral at a price which the Pledgee, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might
be realized if the sale were deferred until the registration as
aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as
defined below), this Agreement shall terminate (provided that all
indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination) and the Pledgee, at the
request and expense of the respective Pledgor, will execute and deliver
to such Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement (including, without
limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance), and will duly 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 (other than an Uncertificated
Security credited on the books of a Clearing Corporation), a Partnership
Interest or a Limited Liability Company Interest, a termination of the
agreement relating thereto executed and delivered by the issuer of such
Uncertificated Security pursuant to Section 3.2(a)(ii) or by the
respective partnership or limited liability company pursuant to Section
3.2(a)(iv). As used in this Agreement, "Termination Date" shall mean
the date upon which the Total Commitment and all Interest Rate
Protection Agreements and Other Hedging Agreements have been terminated,
no Note (as defined in the Credit Agreement) or Letter of Credit is
outstanding (other than Letters of Credit, together with all Fees that
have accrued and will accrue thereon through the stated termination date
of such Letters of Credit, which have been supported in a manner
satisfactory to the Letter of Credit Issuer in its sole and absolute
discretion) and all other Obligations (other than indemnities described
in Section 11 hereof and in Section 12.13 of the Credit Agreement which
are not then due and payable) have been paid in full.
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (to a Person other than a Credit Party) (x) at any
time prior to the time at which all Credit Document Obligations have
been paid in full, all Commitments and Letters of Credit under the
Credit Agreement have been terminated (other than Letters of Credit,
together with all Fees that have accrued and will accrue thereon through
the stated termination date of such Letters of Credit, which have been
supported in a manner satisfactory to the Letter of Credit Issuer in its
sole and absolute discretion) in connection with a sale or disposition
permitted by Section 8.02 of the Credit Agreement or is otherwise
released at the direction of the Required Banks (or all the Banks if
required by Section 12.12 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the other Secured Debt
Agreements, and in the case of clauses (x) and (y), the proceeds of such
sale or disposition (or from such release) are applied in accordance
with the terms of the Credit Agreement or such other Secured Debt
Agreement, as the case may be, to the extent required to be so applied,
the Pledgee, at the request and expense of such Pledgor, 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 is then being (or
has been) so sold or released and as may be in possession of the Pledgee
and has not theretofore been released pursuant to this Agreement.
(c) At any time that any Pledgor desires that Collateral be
released as provided in the foregoing Section 19(a) or (b), it shall
deliver to the Pledgee a certificate signed by a principal executive
officer of such Pledgor stating that the release of the respective
Collateral is permitted pursuant to Section 19(a) or (b). If reasonably
requested by the Pledgee (although the Pledgee shall have no obligation
to make any such request), the relevant Pledgor shall furnish
appropriate legal opinions (from counsel reasonably acceptable to the
Pledgee) to the effect set forth in the immediately preceding sentence.
The Pledgee shall have no liability whatsoever to any Secured Creditor
as the result of any release of Collateral by it as permitted by this
Section 19.
20. NOTICES, ETC. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by first
class mail, postage prepaid, addressed:
(i) if to any Pledgor, at its address set forth opposite its
signature below;
(ii) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Mary Kay Coyle
Tel: (212) 250-9094
Fax: (212) 250-7218
(iii) if to any Bank (other than the Pledgee), at such
address as such Bank shall have specified in the Credit Agreement;
(iv) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the U.S. Borrower and
the Pledgee;
or at such address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
21. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY
MEMBER. (a) Nothing herein shall be construed to make the Pledgee or
any other Secured Creditor liable as a member of any limited liability
company or 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 partnership.
The parties hereto expressly agree that, unless the Pledgee shall become
the absolute owner of Collateral consisting of a Limited Liability
Company Interest or Partnership Interest pursuant hereto, this Agreement
shall not be construed as creating a partnership or joint venture among
the Pledgee, any other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 21, the Pledgee, by accepting this Agreement, did not
intend to become a member of any limited liability company or
partnership or otherwise be deemed to be a co-venturer with respect to
any Pledgor or any limited liability company or partnership either
before or after an Event of Default shall have occurred. The Pledgee
shall have only those powers set forth herein and the Secured Creditors
shall assume none of the duties, obligations or liabilities of a member
of any limited liability company or partnership or any Pledgor except as
provided in the last sentence of paragraph (a) of this Section 21.
(c) The Pledgee and the other Secured 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.
22. WAIVER; AMENDMENT. Except as contemplated in Section 25
hereof, none of the terms and conditions of this Agreement may be
changed, waived, discharged or terminated in any manner whatsoever
unless such change, waiver, discharge or termination is in writing duly
signed by each Pledgor directly and adversely affected thereby and the
Pledgee (with the consent of (x) the Required Banks (or, to the extent
required by Section 12.12 of the Credit Agreement, all of the Banks) at
all times prior to the time at which all Credit Document Obligations
(other than those arising from indemnities for which no request has been
made) have been paid in full and all Commitments under the Credit
Agreement have been terminated or (y) the holders of at least a majority
of the outstanding Other Obligations at all times after the time at
which all Credit Document Obligations (other than those arising from
indemnities for which no request has been made) have been paid in full
and all Commitments have been terminated, provided, that any change,
waiver, modification or variance affecting the rights and benefits of a
single Class (as defined below) of Secured Creditors (and not all
Secured Creditors in a like or similar manner) shall require the written
consent of the Requisite Creditors (as defined below) of such Class of
Secured Creditors. For the purpose of this Agreement, the term "Class"
shall mean each class of Secured Creditors, i.e., whether (x) the Bank
Creditors as holders of the Credit Document Obligations or (y) the Other
Creditors as holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each
of (x) with respect to the Credit Document Obligations, the Required
Banks and (y) with respect to the Other Obligations, the holders of at
least a majority of all obligations outstanding from time to time under
the Interest Rate Protection Agreements and Other Hedging Agreements.
23. MISCELLANEOUS. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force
and effect, subject to release and/or termination as set forth in
Section 19, (ii) be binding upon each Pledgor, its successors and
assigns; provided, however, that no Pledgor shall assign any of its
rights or obligations hereunder without the prior written consent of the
Pledgee (with the prior written consent of the Required Banks or to the
extent required by Section 12.12 of the Credit Agreement, all of the
Banks), and (iii) inure, together with the rights and remedies of the
Pledgee hereunder, to the benefit of the Pledgee, the other Secured
Parties and their respective successors, transferees and assigns. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK. The headings of the several
sections and subsections in this Agreement are for purposes of reference
only and shall not limit or define the meaning hereof. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument. In
the event that any provision of this Agreement shall prove to be invalid
or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all
parties hereto.
24. WAIVER OF JURY TRIAL. Each Pledgor hereby irrevocably
waives all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement or the
transactions contemplated hereby.
25. ADDITIONAL PLEDGORS. It is understood and agreed that
any Subsidiary of Holdings that is required to execute a counterpart of
this Agreement after the date hereof pursuant to Section 7.16 and/or
8.14 of the Credit Agreement shall automatically become a Pledgor
hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
26. RECOURSE. This Agreement is made with full recourse to
the Pledgors and pursuant to and upon all the representations,
warranties, covenants and agreements on the part of the Pledgors
contained herein and in the other Secured Debt Agreements and otherwise
in writing in connection herewith or therewith.
27. LIMITED OBLIGATIONS. It is the desire and intent of each
Pledgor and the Secured 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, it is noted that the obligations of each
Pledgor constituting a U.S. Subsidiary Guarantor have been limited as
provided in the Subsidiary Guaranty.
[Remainder of page intentionally left blank]
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: 1717 Deerfield Road DADE BEHRING HOLDINGS, INC.
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: 1717 Deerfield Road DADE BEHRING INC.
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: 1717 Deerfield Road DADE BEHRING EXPORT
Deerfield, IL 60015-0078 CORPORTATION
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: 1717 Deerfield Road DADE FINANCE INC.
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. DADE MICROSCAN INC.
1717 Deerfield Road
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. SYVA DIAGNOSTICS HOLDING
1717 Deerfield Road COMPANY
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. SYVA COMPANY
1717 Deerfield Road
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200
Address: c/o Dade Behring Inc. SYVA CHILDCARE INC.
1717 Deerfield Road
Deerfield, IL 60015-0078
Attention: Nancy A. Krejsa By: /s/
Phone: (847) 267-5483 Name:
Fax: (847) 267-5459 Title:
cc: Kirkland & Ellis
200 East Randolph Dr.
Chicago, IL 60601
Att: Linda Riley Myers
Phone: (312) 861-2322
Fax: (312) 861-2200