Exhibit 10.6
PLEDGE AGREEMENT dated as of May 6, 2002,
among SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a
Delaware limited liability company (the "SCI LLC"),
ON SEMICONDUCTOR CORPORATION, a Delaware corporation
(the "Company" and, together with SCI LLC, the
"Issuers"), each subsidiary of the Company listed on
Schedule I hereto (each such subsidiary individually
a "Subsidiary Pledgor" and collectively, the
"Subsidiary Pledgors"; SCI LLC, the Company and the
Subsidiary Pledgors are referred to herein
individually as a "Pledgor" and collectively as the
"Pledgors") and WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association ("Wells
Fargo Bank"), as trustee under the Indenture referred
to below and as collateral agent (in such capacity,
the "Collateral Agent") for the Secured Parties (as
defined in the Security Agreement). Capitalized terms
used but not defined herein shall have the meanings
assigned to such terms in the Indenture (as defined
below).
WITNESSETH:
WHEREAS, pursuant to the terms, conditions and provisions of
the (a) Indenture dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture"), among
the Issuers, the Subsidiary Pledgors and Wells Fargo Bank, as trustee (the
"Trustee"), and (b) the Purchase Agreement dated as of May 1, 2002, among the
Issuers, the Subsidiary Pledgors and Credit Suisse First Boston Corporation,
Morgan Stanley Co. Incorporated, Salomon Smith Barney Inc. and J.P. Morgan
Securities Inc. (the "Initial Purchasers"), the Issuers are issuing $300,000,000
aggregate principal amount of 12% Senior Secured Notes due 2008 and may issue,
from time to time, additional notes in accordance with the provisions of the
Indenture (collectively, the "Notes") which will be guaranteed on a senior
secured basis by each of the Pledgors;
WHEREAS, pursuant to the Pledge Agreement dated as of August
4, 1999 (as amended, supplemented or otherwise modified from time to time),
among the Issuers, each of the subsidiaries of the Company party thereto or
which becomes a party thereto pursuant to the Credit Agreement referred to below
(together with the Issuers, each a "Credit Agreement Pledgor" and, collectively,
the "Credit Agreement Pledgors") and JPMorgan Chase Bank (as successor to The
Chase Manhattan Bank), a New York banking corporation ("JPMorgan"), as
collateral agent, the Credit Agreement Pledgors have granted to the Senior Agent
(as defined below) a first-priority lien and security interest in the Collateral
(as defined below) in connection with the Credit Agreement dated as of August 4,
1999, as amended and restated as of April 3, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among SCI LLC, as
borrower, the Company, the lenders from time to time party thereto (the
"Lenders"), JPMorgan, as administrative agent, collateral agent and syndication
agent (in such capacity, the "Senior Agent") for the Lenders, and Credit
Lyonnais New York
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Branch, Credit Suisse First Boston and Lehman Commercial Paper Inc., as
co-documentation agents;
WHEREAS, the Issuers, the Collateral Agent and the Senior
Agent have entered into an Intercreditor Agreement, dated as of the date hereof
(the "Intercreditor Agreement"), pursuant to which the lien and security
interest in the Collateral granted by this Agreement are and shall be
subordinated in all respects to the lien and security interest in the Collateral
granted pursuant to, and all terms and conditions of, the Senior Lender
Documents (as defined in the Intercreditor Agreement);
WHEREAS, each Pledgor is executing and delivering this
Agreement pursuant to the terms of the Indenture to induce the Trustee to enter
into the Indenture and the Initial Purchasers to purchase the Notes; and
WHEREAS, each Pledgor has duly authorized the execution,
delivery and performance of this Agreement.
NOW, THEREFORE, for and in consideration of the premises, and
of the mutual covenants herein contained, and in order to induce the Trustee to
enter into the Indenture and the Initial Purchasers to purchase the Notes, each
Pledgor and the Collateral Agent, on behalf of itself and each Secured Party (as
defined in the Security Agreement) (and each of their respective successors or
assigns), hereby agree as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of all obligations of the Issuers and the Subsidiary
Pledgors under the Indenture, the Notes and the other Indenture Documents,
including obligations to the Trustee and the Collateral Agent, whether for
payment of principal of, interest on or additional interest, if any, on the
Notes and all other monetary obligations of the Issuers and the Subsidiary
Pledgors under the Indenture, the Notes and the other Indenture Documents,
whether for fees, expenses, indemnification or otherwise (referred to
collectively as the "Obligations"), each Pledgor hereby pledges and grants to
the Collateral Agent, its successors and assigns, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a second-priority security interest in all of such Pledgor's
right, title and interest in, to and under (a) the shares of capital stock,
partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests in a Person
(collectively, the "Equity Interests") owned by it which are listed on Schedule
II hereto and any Equity Interests obtained in the future by such Pledgor and
the certificates representing all such Equity Interests (the "Pledged
Interests"); provided that (i) the Pledged Interests shall not include more than
65% of the issued and outstanding voting stock of any Foreign Subsidiary, (ii)
the Pledged Interests shall not include any Equity Interests in any Foreign
Joint Venture Company (as defined in the Credit Agreement) to the extent that
such a Pledge is prohibited by the constitutive documents of such Foreign Joint
Venture Company or (iii) to the extent that applicable law requires that a
Subsidiary of such Pledgor issue directors' qualifying shares, such qualifying
shares; (b)(i) the debt securities owned by it which are listed opposite the
name of such Pledgor on Schedule II hereto, (ii) any debt securities in the
future issued to such Pledgor and (iii) the promissory notes and any other
instruments evidencing such debt securities (the "Pledged Debt Securities"); (c)
all other property that has been or may be delivered to and held by the Senior
Agent (or, if the First-Lien Termination Date (as defined in the Security
Agreement) has occurred, the Collateral Agent) pursuant to the terms hereof; (d)
subject
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to Section 5, all payments of principal or interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed, in respect of, in exchange for or upon the conversion of
the securities referred to in clauses (a) and (b) above; (e) subject to Section
5, all rights and privileges of such Pledgor with respect to the securities and
other property referred to in clauses (a), (b), (c) and (d) above; and (f) all
proceeds of any of the foregoing (the items referred to in clauses (a) through
(f) above being collectively referred to as the "Collateral"). Upon delivery to
the Senior Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent), (a) any Pledged Interests, any Pledged Debt Securities or any
stock certificates, notes or other securities now or hereafter included in the
Collateral (the "Pledged Securities") have been or shall be accompanied by stock
powers duly executed in blank or other instruments of transfer satisfactory to
the Senior Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent) and by such other instruments and documents as the Senior
Agent (or, if the First-Lien Termination Date has occurred, the Collateral
Agent) may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Senior Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent) may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule II and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, in accordance with, and to the
extent consistent with, the terms of the Intercreditor Agreement, together with
all right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Collateral Agent, its successors and assigns, for
the ratable benefit of the Secured Parties, forever; subject, however, to the
terms, covenants and conditions hereinafter set forth.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Senior Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent) any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral unless such Pledged Securities, certificates or
other instruments or documents have previously been delivered to the Senior
Agent.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed to
the Pledgor by any Person to be evidenced by a duly executed promissory note
that is pledged to the Collateral Agent and delivered to the Senior Agent (or,
if the First-Lien Termination Date has occurred, the Collateral Agent) for the
benefit of the Secured Parties pursuant to the terms thereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Interests represent that percentage as set
forth on Schedule II of the issued and outstanding shares of each class
of the Equity Interests of the issuer with respect thereto;
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(b) except for the security interest granted hereunder and the
security interest granted under the Senior Lender Documents (as defined
in the Intercreditor Agreement), such Pledgor (i) is and will at all
times continue to be the direct owner, beneficially and of record, of
the Pledged Securities indicated on Schedule II, (ii) holds the same
free and clear of all Liens other than Permitted Liens, (iii) will make
no assignment, pledge, hypothecation or transfer of, or create or
permit to exist any security interest in or other Lien on, the
Collateral, other than pursuant hereto or the Senior Lender Documents
in accordance with the Intercreditor Agreement, and (iv) subject to
Section 5 and the Intercreditor Agreement, will cause any and all
Collateral, whether for value paid by such Pledgor or otherwise, to be
forthwith deposited (unless such Collateral previously was deposited
with the Senior Agent) with the Senior Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent) and pledged or
assigned hereunder;
(c) such Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will
defend its title or interest thereto or therein against any and all
Liens other than Permitted Liens, however arising, of all Persons
whomsoever;
(d) no consent of any other Person (including stockholders or
creditors of any Pledgor) and no consent or approval of any
Governmental Authority or any securities exchange was or is necessary
to the validity of the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of
this Agreement, upon delivery to the Senior Agent of the Pledged
Securities, certificates or other documents representing or evidencing
the Collateral in accordance with this Agreement, and, in the case of
Pledged Securities not constituting certificated securities or
instruments, the filing of UCC financing statements in the appropriate
filing office, the Collateral Agent will have a valid and perfected
second-priority lien upon and security interest in such Pledged
Securities as security for the payment and performance of the
Obligations;
(f) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the
Collateral Agent in the Collateral as set forth herein;
(g) all of the Pledged Interests have been duly authorized and
validly issued and are fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged
Interests is accurate and complete in all material respects as of the
date hereof;
(i) the pledge of the Pledged Interests pursuant to this
Agreement does not violate Regulation T, U or X of the Federal Reserve
Board or any successor thereto as of the date hereof; and
(j) all Collateral consisting of Pledged Securities,
certificates or other documents representing or evidencing the
Collateral has been delivered to the
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Senior Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent) in accordance with Section 2.
SECTION 4. Registration in Nominee Name; Denominations. The Senior
Agent (or, if the First-Lien Termination Date has occurred, the Collateral
Agent), on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgors, endorsed or assigned in blank or in favor of the Senior Agent (or, if
the First-Lien Termination Date has occurred, the Collateral Agent). Each
Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The Senior Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent) shall at all times have the
right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement and the Intercreditor Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Indenture and the other Indenture
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged
Securities or the rights and remedies of any of the Secured Parties
under this Agreement or the Indenture or any other Indenture Document
or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above and to receive the cash
dividends it is entitled to receive pursuant to subparagraph (iii)
below.
(iii) Each Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Indenture, the
other Indenture Documents and applicable laws. All noncash dividends,
interest and principal, and all dividends, interest and principal paid
or payable in cash or otherwise in connection with a partial or total
liquidation or dissolution, return of capital, capital surplus or
paid-in surplus, and all other distributions (other than distributions
referred to in the preceding sentence) made on or in respect of the
Pledged Securities, whether paid or payable in cash or otherwise,
whether resulting from a subdivision, combination or reclassification
of the outstanding capital stock of the issuer of any Pledged
Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise, shall be and become part of the
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Collateral, and, if received by any Pledgor, shall not be commingled by
such Pledgor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of
the Collateral Agent and shall be forthwith delivered to the Senior
Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent) for the benefit of the Secured Parties in the same
form as so received (with any necessary endorsement).
(b) In accordance with, and to the extent consistent with, the terms of
the Intercreditor Agreement, upon the occurrence and during the continuance of
an Event of Default, all rights of any Pledgor to dividends, interest or
principal that such Pledgor is authorized to receive pursuant to paragraph
(a)(iii) above shall cease, and all such rights shall thereupon become vested in
the Collateral Agent, which shall subject to the provisions of this paragraph
(b) have the sole and exclusive right and authority to receive and retain such
dividends, interest or principal. All dividends, interest or principal received
by the Pledgor contrary to the provisions of this Section 5 shall be held in
trust for the benefit of the Collateral Agent, shall be segregated from other
property or funds of such Pledgor and shall be forthwith delivered to the
Collateral Agent upon demand in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or received by
the Collateral Agent pursuant to the provisions of this paragraph (b) shall be
retained by the Collateral Agent in an account to be established by the
Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 7. After all Events of
Default have been cured or waived, the Collateral Agent shall promptly repay to
each Pledgor all cash dividends, interest or principal (without interest), that
such Pledgor would otherwise be permitted to retain pursuant to the terms of
paragraph (a)(iii) above and which remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of
the Intercreditor Agreement, upon the occurrence and during the continuance of
an Event of Default, all rights of any Pledgor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph
(a)(i) of this Section 5, and the obligations of the Collateral Agent under
paragraph (a)(ii) of this Section 5, shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, which shall have the sole and
exclusive right and authority to exercise such voting and consensual rights and
powers, provided that, unless the Collateral Agent shall have received written
objections from Holders of at least 25% in principal amount of the Notes, the
Collateral Agent shall have the right from time to time following and during the
continuance of an Event of Default to permit the Pledgors to exercise such
rights. After all Events of Default have been cured or waived, each Pledgor will
have the right to exercise the voting and consensual rights and powers that it
would otherwise be entitled to exercise pursuant to the terms of paragraph
(a)(i) above.
SECTION 6. Remedies upon Default. In accordance with, and to the extent
consistent with, the terms of the Intercreditor Agreement, upon the occurrence
and during the continuance of an Event of Default, subject to applicable
regulatory and legal requirements, the Collateral Agent may sell the Collateral,
or any part thereof, at public or private sale or at any broker's board or on
any securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the
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distribution or sale thereof, and upon consummation of any such sale the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of any Pledgor, and, to the extent permitted by applicable
law, the Pledgors hereby waive all rights of redemption, stay, valuation and
appraisal any Pledgor now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give a Pledgor 10 days' prior written notice
(which each Pledgor agrees is reasonable notice within the meaning of Section
9-611 of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Collateral Agent's intention to
make any sale of such Pledgor's Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice of such sale. At any such sale, the Collateral, or portion thereof, to be
sold may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral Agent shall not be obligated to make any sale of any Collateral if it
shall determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Collateral Agent until the sale price is paid in full by the
purchaser or purchasers thereof, but the Collateral Agent shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
be sold again upon like notice. At any public (or, to the extent permitted by
applicable law, private) sale made pursuant to this Section 6, any Secured Party
may bid for or purchase, free from any right of redemption, stay or appraisal on
the part of any Pledgor (all said rights being also hereby waived and released),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any Obligation then due and payable to it from such
Pledgor as a credit against the purchase price, and it may, upon compliance with
the terms of sale, hold, retain and dispose of such property without further
accountability to such Pledgor therefor. For purposes hereof, (a) a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof, (b) the Collateral Agent shall be free to carry out such sale
pursuant to such agreement and (c) such Pledgor shall not be entitled to the
return of the Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
paid in full. As an alternative to exercising the power of sale herein conferred
upon it, the Collateral Agent may proceed by a suit or suits at law or in equity
to foreclose upon the Collateral and to sell the Collateral or any portion
thereof pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.
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SECTION 7. Application of Proceeds of Sale. In accordance with, and to
the extent consistent with, the terms of the Intercreditor Agreement, the
Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral, as well as any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by
the Trustee or the Collateral Agent (in its capacity as such hereunder
or under any other Indenture Document) in connection with such
collection or sale or otherwise in connection with this Agreement or
any of the Obligations, including all court costs and the reasonable
fees and expenses of its agents and legal counsel, the repayment of all
advances made by the Trustee or the Collateral Agent hereunder or under
any other Indenture Document on behalf of any Pledgor and any other
costs or expenses incurred in connection with the exercise of any right
or remedy hereunder or under any other Indenture Document and any other
amounts due to the Trustee or the Collateral Agent under Section 7.07
of the Indenture;
SECOND, to the payment in full of the Obligations owed to the
Holders and any Other Second-Lien Obligations owed to holders of such
Indebtedness (the amounts so applied to be distributed among the
Holders and any holders of Other Second-Lien Obligations pro rata in
accordance with the amounts of the Obligations owed to Holders and
Other Second-Lien Obligations owed to holders of such Indebtedness on
the date of any such distribution); and
THIRD, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. The Collateral Agent may fix a record date and payment date for any
payment to Holders pursuant to this Section 7. At least 15 days before such
record date, the Collateral Agent shall mail to each Holder and the Issuers a
notice that states the record date, the payment and amount to be paid. Upon any
sale of the Collateral by the Collateral Agent (including pursuant to a power of
sale granted by statute or under a judicial proceeding), the receipt of the
purchase money by the Collateral Agent or of the officer making the sale shall
be a sufficient discharge to the purchaser or purchasers of the Collateral so
sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.
SECTION 8. Reimbursement of Collateral Agent. In accordance with, and
to the extent consist with, the terms of the Intercreditor Agreement, (a) each
Pledgor agrees to pay upon demand to the Collateral Agent the amount of any and
all reasonable expenses, including the reasonable fees, other charges and
disbursements of its counsel and of any experts or agents, that the Collateral
Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Collateral Agent hereunder or (iv) the failure by such
Pledgor to perform or observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Indenture Documents, each Pledgor agrees to indemnify the Collateral
Agent, the Trustee, the
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Holders and each Affiliate of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, other charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other
Indenture Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
thereunder or the consummation of the other transactions contemplated thereby or
(ii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 8 shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other
Indenture Document or any investigation made by or on behalf of the Collateral
Agent or any other Secured Party. All amounts due under this Section 8 shall be
payable on written demand therefor and shall bear interest at the rate specified
in the Notes.
SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Collateral Agent's name or in the name of such Pledgor, to ask for, demand,
sue for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to the Pledgor
representing any interest or dividend or other distribution payable in respect
of the Collateral or any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prosecute or defend any action,
claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and to make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
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Notwithstanding anything in this Section 9 to the contrary, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 9 unless it does so in accordance with,
and to the extent consistent with, the terms of the Intercreditor Agreement.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent and the other Secured Parties under the other
Indenture Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provisions of this
Agreement or consent to any departure by any Pledgor therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on any Pledgor in any
case shall entitle such Pledgor to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except (i) in accordance with the Indenture pursuant to a
written agreement entered into between the Collateral Agent and the Pledgor or
Pledgors with respect to which such waiver, amendment or modification is to
apply, or (ii) as otherwise provided in the Intercreditor Agreement.
SECTION 11. Securities Act, etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale, in either case in accordance with a valid exemption from
registration under the Federal Securities Laws. Each Pledgor acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the
11
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the Collateral Agent, in its
sole and absolute discretion, may in good faith deem reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached. The provisions of
this Section 11 will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Collateral Agent sells.
SECTION 12. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default, if, in accordance
with, and to the extent consistent with, the terms of the Intercreditor
Agreement, for any reason the Collateral Agent desires to sell any of the
Pledged Securities at a public sale, it will, at any time and from time to time,
upon the written request of the Collateral Agent, use its reasonable best
efforts to take or to cause the issuer of such Pledged Securities to take such
action and prepare, distribute and/or file such documents, as are required or
advisable in the reasonable opinion of counsel for the Collateral Agent to
permit the public sale of such Pledged Securities. Each Pledgor further agrees
to indemnify, defend and hold harmless the Collateral Agent, each other Secured
Party, any underwriter and their respective officers, directors, affiliates and
controlling Persons from and against all loss, liability, expenses, costs of
counsel (including, without limitation, reasonable fees and expenses to the
Collateral Agent of legal counsel), and claims (including the costs of
investigation) that they may incur insofar as such loss, liability, expense or
claim arises out of or is based upon any alleged untrue statement of a material
fact contained in any prospectus (or any amendment or supplement thereto) or in
any notification or offering circular, or arises out of or is based upon any
alleged omission to state a material fact required to be stated therein or
necessary to make the statements in any thereof not misleading, except insofar
as the same may have been caused by any untrue statement or omission based upon
information furnished in writing to such Pledgor or the issuer of such Pledged
Securities by the Collateral Agent or any other Secured Party expressly for use
therein. Each Pledgor further agrees, upon such written request referred to
above, to use its reasonable best efforts to qualify, file or register, or cause
the issuer of such Pledged Securities to qualify, file or register, any of the
Pledged Securities under the Blue Sky or other securities laws of such states as
may be requested by the Collateral Agent and keep effective, or cause to be kept
effective, all such qualifications, filings or registrations. Each Pledgor
will bear all costs and expenses of carrying out its obligations under this
Section 12. Each Pledgor acknowledges that there is no adequate remedy at law
for failure by it to comply with the provisions of this Section 12 and that such
failure would not be adequately compensable in damages, and therefore agrees
that its agreements contained in this Section 12 may be specifically enforced.
SECTION 13. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Indenture, any
other Indenture Document, any agreement with respect to any of the Obligations
or any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amendment or waiver of or any consent to
any departure from the Indenture, any other Indenture Document or any other
agreement or instrument relating to any of the foregoing, (c) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver of or
12
consent to or departure from any guaranty, for all or any of the Obligations or
(d) any other circumstance that might otherwise constitute a defense available
to, or a discharge of, any Pledgor in respect of the Obligations or in respect
of this Agreement (other than the indefeasible payment in full of all the
Obligations).
SECTION 14. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate at the time provided in Section 10.08
of the Indenture.
(b) Upon any sale or other transfer by any Pledgor of any Collateral
that is permitted under the Indenture or the Intercreditor agreement to any
Person that is not a Pledgor, or, if any of the Collateral shall otherwise
become subject to the release provisions set forth in Section 10.03 of the
Indenture or Section 5.1 of the Intercreditor Agreement, such Collateral shall
be automatically released from the Security Interest to the extent provided in
Section 10.03 of the Indenture or Section 5.1 of the Intercreditor Agreement, as
applicable.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b) or Section 17, the Collateral Agent shall execute and deliver to any
Pledgor, at such Pledgor's expense, all documents that such Pledgor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 14 shall be without recourse to
or warranty by the Collateral Agent.
SECTION 15. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 12.02 of the Indenture. All
communications and notices hereunder to any Subsidiary Pledgor shall be given to
it at the address or telecopy number set forth on Schedule I, with a copy to the
Company.
SECTION 16. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent, in accordance
with, and to the extent consistent with, the terms of the Intercreditor
Agreement, may at any time reasonably request in connection with the
administration and enforcement of this Agreement or with respect to the
Collateral or any part thereof or in order better to assure and confirm unto the
Collateral Agent its rights and remedies hereunder.
SECTION 17. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Indenture
Documents. In the event that a Pledgor ceases to be a Subsidiary of the Company
pursuant to a transaction permitted under the Indenture Documents, such
13
Pledgor shall be released from its obligations under this Agreement without
further action. This Agreement shall be construed as a separate agreement with
respect to each Pledgor and may be amended, modified, supplemented, waived or
released with respect to any Pledgor without the approval of any other Pledgor
and without affecting the obligations of any other Pledgor hereunder.
SECTION 18. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Indenture Document shall be
considered to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the purchase of the Notes by the Initial
Purchasers, regardless of any investigation made by the Secured Parties or on
their behalf, and shall continue in full force and effect as long as any
Obligation remains unpaid.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 20. Counterparts. This 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 a single contract, and shall become effective
as provided in Section 17. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 21. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Security Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting this Agreement.
SECTION 22. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Indenture Documents, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted by law,
in such
14
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Indenture Documents against any Pledgor
or its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Indenture Documents in
any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 15. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INDENTURE DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER INDENTURE DOCUMENTS, AS APPLICABLE, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 23.
SECTION 24. Additional Pledgors. If, pursuant to Sections 4.11 and
11.06 of the Indenture, the Company is required to cause any Subsidiary of the
Company that is not a Subsidiary Pledgor to become a Subsidiary Pledgor, upon
execution and delivery by the Collateral Agent and such Subsidiary of an
instrument in the form of Annex 1, such Subsidiary shall become a Subsidiary
Pledgor hereunder with the same force and effect as if originally named as a
Subsidiary Pledgor herein. The execution and delivery of such instrument shall
not require the consent of any Pledgor hereunder. The rights and obligations of
each Pledgor hereunder shall remain in full force and effect notwithstanding the
addition of any new Subsidiary Pledgor as a party to this Agreement.
SECTION 25. Subject to Intercreditor Agreement. Notwithstanding
anything herein to the contrary, the lien and security interest granted to the
Collateral Agent pursuant to this Agreement and the exercise of any right or
remedy by the Collateral Agent hereunder are subject to the provisions of the
Intercreditor Agreement. In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the Intercreditor
Agreement shall govern.
15
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SEMICONDUCTOR COMPONENTS
INDUSTRIES, LLC,
By /s/ John T. Kurtzweil
------------------------------------
Name John T. Kurtzweil
Title: Chief Financial Officer
ON SEMICONDUCTOR CORPORATION,
By /s/ John T. Kurtzweil
------------------------------------
Name: John T. Kurtzweil
Title: Chief Financial Officer
EACH OF THE OTHER SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
By /s/ John T. Kurtzweil
------------------------------------
Name: John T. Kurtzweil
Title: Chief Financial Officer
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Collateral
Agent,
By /s/ Joseph P. O'Donnell
------------------------------------
Name: Joseph P. O'Donnell
Title: Corporate Trust Officer
Schedule I to the
Pledge Agreement
SUBSIDIARY PLEDGORS
Name Address
---- -------
SCG International Development LLC 5005 East McDowell Road
Phoenix, AZ 85008
SCG (Malaysia SMP) Holding Corporation 5005 East McDowell Road
Phoenix, AZ 85008
SCG (Czech) Holding Corporation 5005 East McDowell Road
Phoenix, AZ 85008
SCG (China) Holding Corporation 5005 East McDowell Road
Phoenix, AZ 85008
Semiconductor Components Industries Puerto Rico, Inc. 5005 East McDowell Road
Phoenix, AZ 85008
Semiconductor Components Industries of Rhode Island, 2000 South County Trail
Inc. East Greenwich, RI 02818
Semiconductor Components Industries International of 2000 South County Trail
Rhode Island, Inc. East Greenwich, RI 02818
Schedule II to the
Pledge Agreement
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Number and Percentage
Class of of
Shares Shares
or Other or Other
Number of Registered Equity Equity
Issuer Certificate Owner Interests Interests
- ------ ----------- ----- --------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
- ------ ------ ------------ -------------
Annex 1 to the
Pledge Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to
the PLEDGE AGREEMENT dated as of May 6, 2002, among
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC, a Delaware
limited liability company (the "SCI LLC"), ON
SEMICONDUCTOR CORPORATION, a Delaware corporation
(the "Company" and, together with SCI LLC, the
"Issuers"), and each subsidiary of the Company listed
on Schedule I thereto (each such subsidiary
individually a "Subsidiary Pledgor" and collectively,
the "Subsidiary Pledgors"; the Subsidiary Pledgors
and the Issuers are referred to herein individually
as a "Pledgor" and collectively as the "Pledgors")
and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
a national banking association ("Wells Fargo Bank"),
as trustee under the Indenture referred to below and
as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined in the Security Agreement )
A. Reference is made to (a) the Indenture dated as of May 6, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Indenture"),
among the Company, SCI LLC, the Guarantors and Wells Fargo Bank, as trustee, and
(b) the Intercreditor Agreement dated as of May 6, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Intercreditor
Agreement"), among the Issuers, the Collateral Agent and the Senior Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Pledge Agreement and the
Indenture.
C. The Pledgors have entered into the Pledge Agreement in order to
induce the Trustee to enter into the Indenture and the Initial Purchasers to
purchase the Notes. Pursuant to Section 4.11 of the Indenture, the Company is
required to cause certain of its Subsidiaries to enter into the Pledge Agreement
as a Subsidiary Pledgor. Section 24 of the Pledge Agreement provides that such
Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Pledgor") is executing this Supplement in
accordance with the requirements of the Indenture to become a Subsidiary Pledgor
under the Pledge Agreement as consideration for the purchase of the Notes by the
Initial Purchasers and the Holders.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 24 of the Pledge Agreement, the
New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement
with the same force and effect as if originally named therein as a Pledgor and
the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge
Agreement applicable to it as a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct on and as of the date hereof except to the
extent a representation and warranty expressly relates solely to a specific date
in which case such representation and warranty shall be true and correct on such
date. In furtherance of the foregoing, the New Pledgor, as security for the
payment
2
and performance in full of the Obligations (as defined in the Pledge Agreement),
does hereby create and grant to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of the New Pledgor's right, title and
interest in and to the Collateral (as defined in the Pledge Agreement) of the
New Pledgor. Each reference to a "Subsidiary Pledgor" or a "Pledgor" in the
Pledge Agreement shall be deemed to include the New Pledgor. The Pledge
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired
(it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close
as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Pledge Agreement. All communications
and notices hereunder to the New Pledgor shall be given to it at the address set
forth under its signature hereto, below, with a copy to the Company.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
3
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Pledge Agreement as of the day and year first
above written.
[NAME OF NEW PLEDGOR],
By
----------------------------------
Name:
Title:
Address:
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Collateral
Agent,
By
----------------------------------
Name:
Title:
Schedule I to
Supplement No. [ ]
to the Pledge Agreement
Pledged Securities of the New Pledgor
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Number and Percentage
Class of of
Shares Shares
or Other or Other
Number of Registered Equity Equity
Issuer Certificate Owner Interests Interests
- ------ ----------- ----- --------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
- ------ ------ ------------ -------------