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Exhibit 10.6
EXECUTION COPY
PLEDGE AGREEMENT
DATED AS OF JULY 30, 2004
AMONG
THE CREDIT PARTIES FROM TIME TO TIME PARTY HERETO
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS U.S. COLLATERAL AGENT
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TABLE OF CONTENTS*
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ARTICLE I
DEFINITIONS
Section 1.01 Terms Defined in the Finance Documents................................2
Section 1.02 Terms Defined in the UCC..............................................2
Section 1.03 Additional Definitions................................................2
Section 1.04 Terms Generally.......................................................8
ARTICLE II
THE SECURITY INTERESTS
Section 2.01 Grant of Security Interests...........................................8
Section 2.02 Security Interests Absolute...........................................9
Section 2.03 Continuing Liability of the Credit Parties...........................10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Title to Collateral..................................................11
Section 3.02 Validity, Perfection and Priority of Security Interests..............11
Section 3.03 Collateral...........................................................11
Section 3.04 No Consents..........................................................12
ARTICLE IV
COVENANTS
Section 4.01 Delivery of Collateral...............................................12
Section 4.02 Delivery of Perfection Certificate; Filing of Financing Statements
and Delivery of Search Reports.......................................12
Section 4.03 Change of Name, Identity, Structure or Location; Subjection to Other
Security Agreements..................................................13
Section 4.04 Further Actions......................................................13
Section 4.05 Disposition of Collateral............................................13
Section 4.06 Additional Collateral................................................13
Section 4.07 Information Regarding Collateral.....................................14
ARTICLE V
DISTRIBUTIONS ON COLLATERAL; VOTING
Section 5.01 Right to Receive Distributions on Collateral; Voting.................14
ARTICLE VI
GENERAL AUTHORITY; REMEDIES
Section 6.01 General Authority....................................................16
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* The Table of Contents is not a part of the Pledge Agreement.
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TABLE OF CONTENTS (CONT.)
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Section 6.02 Remedies upon Event of Default.......................................16
Section 6.03 Securities Act; Registration Rights..................................18
Section 6.04 Other Rights of the U.S. Collateral Agent............................19
Section 6.05 Limitation on Duty of U.S. Collateral Agent in Respect of
Collateral...........................................................20
Section 6.06 Waiver and Estoppel..................................................20
Section 6.07 Application of Proceeds..............................................21
ARTICLE VII
THE U.S. COLLATERAL AGENT
Section 7.01 Concerning the U.S. Collateral Agent.................................22
Section 7.02 Appointment of Co-Collateral Agent...................................22
Section 7.03 Appointment of Sub-Agents............................................22
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Notices..............................................................22
Section 8.02 No Waivers; Non-Exclusive Remedies...................................23
Section 8.03 Compensation and Expenses of the U.S. Collateral Agent;
Indemnification......................................................23
Section 8.04 Enforcement..........................................................25
Section 8.05 Amendments and Waivers...............................................25
Section 8.06 Successors and Assigns...............................................25
Section 8.07 Governing Law........................................................26
Section 8.08 Limitation of Law; Severability......................................26
Section 8.09 Counterparts; Effectiveness..........................................26
Section 8.10 Additional Credit Parties............................................26
Section 8.11 Termination; Release of Credit Parties...............................27
Section 8.12 Entire Agreement.....................................................27
Section 8.13 Defined Terms; Conflict..............................................27
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SCHEDULES:
Schedule I - List of Pledged Shares
Schedule II - List of Pledged Notes
Schedule III - List of Pledged LLC Interests
Schedule IV - List of Pledged Partnership Interests
Schedule V - Schedule of Filings to Perfect Security Interests
EXHIBITS:
Exhibit A - Form of Issuer Control Agreement
Exhibit B - Form of Securities Account Control Agreement
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PLEDGE AGREEMENT dated as of July 30, 2004 (as amended,
modified or supplemented from time to time, this "AGREEMENT")
among the CREDIT PARTIES from time to time party hereto and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as U.S. Collateral Agent
for benefit of the Finance Parties referred to herein.
THE JEAN COUTU GROUP (PJC) INC., a corporation formed and
existing under the laws of the Province of Quebec (together with its successors
and permitted assigns, the "PARENT BORROWER"), proposes to enter into a Credit
Agreement dated as of July 30, 2004 (as amended, restated, modified or
supplemented from time to time and including any agreement extending the
maturity of, refinancing or otherwise restructuring all or any portion of the
obligations of the Parent Borrower under such agreement or any successor
agreement, the "CREDIT AGREEMENT") among the Parent Borrower, THE JEAN COUTU
GROUP (PJC) USA, INC., a corporation formed and existing under the laws of the
State of Delaware (the "U.S. BORROWER" and, together with the Parent Borrower,
the "BORROWERS"), the banks and other financial institutions form time to time
party hereto (the "LENDERS"), MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as Global Transaction Coordinator, DEUTSCHE BANK SECURITIES INC.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and NATIONAL BANK FINANCIAL
INC., as U.S. Joint Lead Arrangers, DEUTSCHE BANK SECURITIES INC. and MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as U.S. Joint Bookrunners, NATIONAL
BANK FINANCIAL INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and
DEUTSCHE BANK SECURITIES INC., as Canadian Joint Lead Arrangers and as Canadian
Joint Bookrunners, NATIONAL BANK OF CANADA, as the Canadian Administrative
Agent, DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Term B Administrative Agent,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and NATIONAL BANK OF CANADA,
as U.S. Co-Syndication Agents, MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED and DEUTSCHE BANK SECURITIES INC., as Canadian Co-Syndication
Agents.
Certain Lenders and their affiliates acting as Derivatives
Creditors (as defined in the Credit Agreement) may from time to time provide
forward rate agreements, options, swaps, caps, floors and other Derivatives
Agreements (as defined in the Credit Agreement) to the Credit Parties (as
defined below). The Lenders, each Issuing Lender, each Swingline Lender, the
Administrative Agents, the Co-Syndication Agents, the Global Transaction
Coordinator, the U.S. Joint Lead Arrangers, the Canadian Joint Lead Arrangers,
the Canadian Collateral Agent, the U.S. Collateral Agent, as collateral agent
for the benefit of the Lenders (together with its successor or successors in
such capacity, the "U.S. COLLATERAL AGENT"), each Indemnitee and each
Derivatives Creditor and their respective successors and assigns are herein
referred to individually as a "FINANCE PARTY" and collectively as the "FINANCE
PARTIES".
To induce the Lenders to enter into the Credit Agreement and the
other Senior Finance Documents (as defined in the Credit Agreement) and the
Derivatives Creditors to enter into the Derivatives Agreements constituting
Finance Documents under the Credit Agreement (collectively with the Senior
Finance Documents and the Derivatives Agreements evidencing Derivatives
Obligations (as hereinafter defined) permitted under the Credit Agreement, the
"FINANCE DOCUMENTS"), and as a condition precedent to the obligations of the
Finance Parties thereunder, the Parent Borrower and certain of its subsidiaries
(each a "GUARANTOR" and, collectively, the "GUARANTORS") have agreed, jointly
and severally, to provide a guaranty of all obligations of the Borrowers and the
other Credit Parties under or in respect of the Finance Documents.
As a further condition precedent to the obligations of the Lenders and the
Derivatives Creditors under the Senior Finance Documents, each Borrower and each
Subsidiary Guarantor (each a "CREDIT PARTY" and, together with each other person
that becomes a party hereto pursuant to SECTION 7.10 hereof and the respective
successors and permitted assigns of each of the foregoing, the "CREDIT PARTIES")
has agreed or
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will agree to grant a continuing security interest in favor of the U.S.
Collateral Agent in and to the Collateral (as hereinafter defined) to secure the
Finance Obligations (as defined in the Credit Agreement). Accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 TERMS DEFINED IN THE FINANCE DOCUMENTS.
Capitalized terms defined in the Credit Agreement and not otherwise defined
herein have, as used herein, the respective meanings provided for therein.
SECTION 1.02 TERMS DEFINED IN THE UCC. Unless otherwise
defined herein or in the Credit Agreement or the context otherwise requires, the
following terms, together with any uncapitalized terms used herein which are
defined in the UCC (as defined below), have the respective meanings provided in
the UCC: (i) Certificated Security; (ii) Financial Asset; (iii) Investment
Property; (iv) Payment Intangibles; (v) Proceeds; (vi) Securities Account; (vii)
Securities Intermediary; (viii) Security; (ix) Security Certificate; and (x)
Uncertificated Security; and (xi) Security Entitlement.
SECTION 1.03 ADDITIONAL DEFINITIONS. Terms defined in the
introductory section hereof have the respective meanings set forth therein. The
following additional terms, as used herein, have the following respective
meanings:
"ACCOUNT CONTROL AGREEMENT" means (i) with respect to a Deposit
Account, a deposit account control agreement, substantially in the form of
EXHIBIT C to the U.S. Security Agreement or otherwise containing substantially
similar terms and acceptable in form and substance to the U.S. Collateral Agent,
among one or more Credit Parties, the U.S. Collateral Agent and the bank which
maintains such Deposit Account and (ii) with respect to a Securities Account, a
securities account control agreement, substantially in the form of EXHIBIT B
hereto or otherwise containing substantially similar terms and acceptable in
form and substance to the U.S. Collateral Agent, among one or more Credit
Parties, the U.S. Collateral Agent and the Securities Intermediary which
maintains such Securities Account, in each case as the same may be amended,
restated, modified or supplemented from time to time.
"COLLATERAL" has the meaning set forth in SECTION 2.01 of this
Agreement.
"CREDIT PARTY" means each of the Borrowers and each Subsidiary
Guarantor, and "Credit Parties" means all of them, collectively.
"DELIVERY" and the corresponding term "DELIVERED" when used with
respect to Collateral means:
(i) in the case of Collateral constituting
Certificated Securities, transfer thereof to the U.S. Collateral Agent
or its nominee or custodian by physical delivery to the U.S. Collateral
Agent or its nominee or custodian, such Collateral to be in suitable
form for transfer by delivery, or accompanied by undated instruments of
transfer or assignment duly executed in blank, with signatures
appropriately guaranteed;
(ii) in the case of Collateral constituting
Uncertificated Securities, (A) registration thereof on the books and
records of the issuer thereof in the name of the U.S. Collateral Agent
or its nominee or custodian (who may not be a Securities Intermediary)
or (B) the execution and delivery by the issuer thereof of an effective
agreement, substantially in the
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form of EXHIBIT A hereto, pursuant to which such issuer agrees that it
will comply with instructions originated by the U.S. Collateral Agent or
such nominee or custodian without further consent of the registered
owner of such Collateral or any other Person;
(iii) in the case of Collateral constituting Security
Entitlements or other Financial Assets deposited in or credited to a
Securities Account, (A) completion of all actions necessary to
constitute the U.S. Collateral Agent or its nominee or custodian the
entitlement holder with respect to each such Security Entitlement or (B)
the execution and delivery by the relevant Securities Intermediary of an
effective Account Control Agreement pursuant to which such Securities
Intermediary agrees to comply with all entitlement orders originated by
the U.S. Collateral Agent or such nominee or custodian without further
consent by the relevant entitlement holder or any other Person;
(iv) in the case of LLC Interests and Partnership
Interests which do not constitute Securities, (A) compliance with the
provisions of CLAUSE (i) above for each such item of Collateral which is
represented by a certificate and (B) compliance with the provisions of
CLAUSE (ii) above for each such item of Collateral which is not
evidenced by a certificate;
(v) in the case of Collateral which constitute
Instruments, transfer thereof to the U.S. Collateral Agent or its
nominee or custodian by physical delivery to the U.S. Collateral Agent
or its nominee or custodian indorsed to, or registered in the name of,
the U.S. Collateral Agent or its nominee or custodian or indorsed in
blank;
(vi) in the case of cash, transfer thereof to the
U.S. Collateral Agent or its nominee or custodian by physical delivery
to the U.S. Collateral Agent or its nominee or custodian; and
(vii) in each case such additional or alternative
procedures as may hereafter become appropriate to grant control of, or
otherwise perfect a security interest in, any Collateral in favor of the
U.S. Collateral Agent or its nominee or custodian, consistent with
changes in applicable Law or regulations or the interpretation thereof.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations
(including, without limitation, any amounts which accrue after the commencement
of any bankruptcy or insolvency proceeding with respect to such Person, whether
or not allowed or allowable as a claim under any bankruptcy or insolvency
proceeding) of such Person in respect of any Derivatives Agreement, excluding
any amounts which such Person is entitled to set-off against its obligations
under applicable Law.
"FINANCE OBLIGATIONS" means:
(i) all Senior Obligations; and
(ii) all Derivatives Obligations permitted under the
Credit Agreement owed or owing to any Derivatives Creditor.
in each case whether now or hereafter due, owing or incurred in any manner,
whether actual or contingent, whether incurred solely or jointly with any other
Person and whether as principal or surety (and including all liabilities in
connection with any notes, bills or other instruments accepted by any Finance
Party in connection therewith), together in each case with all renewals,
modifications, consolidations or extensions thereof.
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"GENERAL INTANGIBLES" means all "general intangibles" (as
defined in the UCC), including, without limitation, (i) all Payment Intangibles
and other obligations and indebtedness owing to any Credit Party in respect of
Collateral and (ii) all interests in limited liability companies and/or
partnerships which interests do not constitute Securities.
"INSTRUMENTS" means:
(i) the promissory notes described on SCHEDULE II
hereto, as such Schedule may be amended, supplemented or modified from
time to time (the "PLEDGED NOTES"), and all interest, distributions,
cash, instruments and other property, income, profits and proceeds from
time to time received or receivable or otherwise made upon or
distributed in respect of or in exchange for any or all of the Pledged
Notes;
(ii) all additional or substitute promissory notes
from time to time issued to or otherwise acquired by any Credit Party in
any manner in respect of Pledged Notes or otherwise, and all interest,
distributions, cash, instruments and other property, income, profits and
proceeds from time to time received or receivable or otherwise made upon
or distributed in respect of such additional or substitute notes;
(iii) all promissory notes, bankers' acceptances,
commercial paper, negotiable certificates of deposit and other
obligations constituting "instruments" within the meaning of the UCC;
and
to the extent not otherwise included in the foregoing, all cash and non-cash
Proceeds thereof.
"LLC INTERESTS" means:
(i) the limited liability company membership
interests described on SCHEDULE III hereto, as such Schedule may be
amended, supplemented or modified from time to time (the "PLEDGED LLC
INTERESTS"), and all dividends, distributions, cash, instruments and
other property, income, profits and proceeds from time to time received
or receivable or otherwise made upon or distributed in respect of or in
exchange for any or all of the Pledged LLC Interests;
(ii) all additional or substitute limited liability
company membership interests from time to time issued to or otherwise
acquired by any Credit Party in any manner in respect of Pledged LLC
Interests or otherwise, and all dividends, distributions, cash,
instruments and other property, income, profits and proceeds from time
to time received or receivable or otherwise made upon or distributed in
respect of such additional or substitute membership interests;
(iii) all right, title and interest of any Credit
Party in each limited liability company to which any Pledged LLC
Interest relates, including, without limitation:
(A) all interests of such Credit Party in the
capital of such limited liability company and in all profits,
losses and assets, whether tangible or intangible and whether
real, personal or mixed, of such limited liability company, and
all other distributions to which such Credit Party shall at any
time be entitled in respect of such Pledged LLC Interests;
(B) all other payments due or to become due
to such Credit Party in respect of Pledged LLC Interests,
whether under any limited liability company agreement
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or operating agreement or otherwise and whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of such Credit Party's 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 Pledged LLC Interests;
(D) all present and future claims, if any, of
such Credit Party against any such limited liability company for
moneys loaned or advanced, for services rendered or otherwise;
and
(E) all of such Credit Party'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 Credit Party relating to
such Pledged LLC 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 such Credit
Party in respect of such Pledged LLC Interests and any such
limited liability company, to make determinations, to exercise
any election (including, without limitation, election of
remedies) or option to give or receive any notice, consent,
amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or give receipt
for any of the foregoing or for any assets of any such limited
liability company, to enforce or execute any checks or other
instruments or orders, to file any claims and to take any other
action in connection with any of the foregoing; and
to the extent not otherwise included in the foregoing, all cash and non-cash
Proceeds thereof.
"PARTNERSHIP INTERESTS" means:
(i) the partnership interests described on SCHEDULE
IV hereto, as such Schedule may be amended, supplemented or modified
from time to time (the "PLEDGED PARTNERSHIP INTERESTS"), and all
dividends, distributions, cash, instruments and other property, income,
profits and proceeds from time to time received or receivable or
otherwise made upon or distributed in respect of or in exchange for any
or all of the Pledged Partnership Interests;
(ii) all additional or substitute partnership
interests from time to time issued to or otherwise acquired by any
Credit Party in any manner in respect of Pledged Partnership Interests
or otherwise, and all dividends, distributions, cash, instruments and
other property, income, profits and proceeds from time to time received
or receivable or otherwise made upon or distributed in respect of such
additional or substitute partnership interests;
(iii) all right, title and interest of any Credit
Party in each partnership to which any Pledged Partnership Interest
relates, including, without limitation:
(A) all interests of such Credit Party in the
capital of such partnership and in all profits, losses and
assets, whether tangible or intangible and whether real,
personal or mixed, of such partnership, and all other
distributions to which such Credit Party shall at any time be
entitled in respect of such Pledged Partnership Interests;
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(B) all other payments due or to become due
to such Credit Party in respect of Pledged Partnership
Interests, whether under any partnership agreement or otherwise
and whether as contractual obligations, damages, insurance
proceeds or otherwise;
(C) all of such Credit Party's claims,
rights, powers, privileges, authority, options, security
interests, liens and remedies, if any, under any partnership
agreement, or at Law or otherwise in respect of such Pledged
Partnership Interests;
(D) all present and future claims, if any, of
such Credit Party against any such partnership for moneys loaned
or advanced, for services rendered or otherwise; and
(E) all of such Credit Party's rights under
any partnership agreement or at Law to exercise and enforce
every right, power, remedy, authority, option and privilege of
such Credit Party relating to such Pledged Partnership
Interests, including any power to terminate, cancel or modify
any partnership agreement, to execute any instruments and to
take any and all other action on behalf of and in the name of
such Credit Party in respect of such Pledged Partnership
Interests and any such partnership, to make determinations, to
exercise any election (including, without limitation, election
of remedies) or option to give or receive any notice, consent,
amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or give receipt
for any of the foregoing or for any assets of any such
partnership, to enforce or execute any checks or other
instruments or orders, to file any claims and to take any other
action in connection with any of the foregoing; and
to the extent not otherwise included in the foregoing, all cash and non-cash
Proceeds thereof.
"PERFECTION CERTIFICATE" means a certificate, substantially in
the form of EXHIBIT F-1 to the Credit Agreement, completed and supplemented with
the schedules and attachments contemplated thereby.
"PERMITTED LIEN" means any Lien referred to in, and permitted
by, SECTION 7.02 of the Credit Agreement.
"PLEDGE AGREEMENT" means this Agreement, as the same may be
amended, supplemented or modified from time to time.
"PLEDGED LLC INTERESTS" has the meaning set forth in CLAUSE (i)
of the definition of "LLC Interests".
"PLEDGED NOTES" has the meaning set forth in CLAUSE (i) of the
definition of "Instruments".
"PLEDGED PARTNERSHIP INTERESTS" has the meaning set forth in
CLAUSE (i) of the definition of "Partnership Interests".
"PLEDGED SHARES" has the meaning set forth in CLAUSE (i) of the
definition of "Stock".
"SECURITY INTERESTS" means the security interests in the
Collateral granted under this Agreement securing the Finance Obligations.
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"SECURITIES LAWS" has the meaning set forth in SECTION 6.03(a)
of this Agreement.
"SENIOR OBLIGATIONS" means with respect to each Credit Party,
without duplication:
(i) in the case of each Borrower, all principal of
and interest (including, without limitation, any interest which accrues
after the commencement of any bankruptcy or insolvency proceeding with
respect to any Credit Party, whether or not allowed or allowable as a
claim under any bankruptcy or insolvency proceeding) on any Loan made
to, or LC Obligation under, or BA Reimbursement Obligation, or any Note
issued pursuant to, the Credit Agreement or any other Senior Finance
Document;
(ii) all fees, expenses, indemnification
obligations, foreign currency exchange, obligations, and other amounts
of whatever nature now or hereafter payable by any Credit Party
(including, without limitation, any amounts which accrue after the
commencement of any bankruptcy or insolvency proceeding with respect to
any Credit Party, whether or not allowed or allowable as a claim under
any bankruptcy or insolvency proceeding) pursuant to the Credit
Agreement, this Agreement or any other Senior Finance Document;
(iii) all expenses of any Finance Party as to which
it has a right to reimbursement under SECTION 8.03(a) or (b) of this
Agreement or under any other similar provision of any other Senior
Finance Document, including, without limitation, any and all sums
advanced by the U.S. Collateral Agent to preserve any Collateral or
preserve its security interests in any Collateral;
(iv) all amounts paid by any Indemnitee as to which
such Indemnitee has the right to reimbursement under SECTION 8.03(c) of
this Agreement, SECTION 10.05 of the Credit Agreement or under any other
similar provision of any other Senior Finance Document; and
(i) in the case of each Borrower and each
Subsidiary Guarantor, all amounts now or hereafter payable by such
Borrower or such Subsidiary Guarantor and all other obligations or
liabilities now existing or hereafter arising or incurred (including,
without limitation, any amounts which accrue after the commencement of
any bankruptcy or insolvency proceeding with respect to any Credit
Party, whether or not allowed or allowable as a claim under any
bankruptcy or insolvency proceeding) on the part of the such Borrower or
such Subsidiary Guarantor pursuant to the Guaranty in respect of the
Credit Agreement or any other Senior Finance Document;
in each case whether now or hereafter due, owing or incurred in any manner,
whether actual or contingent, whether incurred solely or jointly with any other
Person and whether as principal or surety (and including all liabilities in
connection with any notes, bills or other instruments accepted by any Finance
Party in connection therewith, together in each case with all renewals,
modifications, consolidations or extensions thereof.
"STOCK" means:
(i) the shares of capital stock and other
Securities described on SCHEDULE I hereto, as such Schedule may be
amended, supplemented or modified from time to time (the "PLEDGED
SHARES"), and all dividends, interest, distributions, cash, instruments
and other property, income, profits and proceeds from time to time
received, receivable or otherwise made upon or distributed in respect of
or in exchange for any or all of the Pledged Shares; and
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(ii) all additional or substitute shares of capital
stock or other equity interests of any class of any issuer from time to
time issued to or otherwise acquired by any Credit Party in any manner
in respect of Pledged Shares or otherwise, the certificates representing
such additional or substitute shares, and all dividends, interest,
distributions, cash, instruments and other property, income, profits and
proceeds from time to time received, receivable or otherwise made upon
or distributed in respect of or in exchange for any or all of such
additional or substitute shares; and
to the extent not otherwise included in the foregoing, all cash and non-cash
Proceeds thereof.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of New York; PROVIDED that if by reason of mandatory
provisions of Law, the perfection, the effect of perfection or non-perfection or
the priority of the Security Interests in any Collateral is governed by the
Uniform Commercial Code or any other Law as in effect in a jurisdiction other
than New York, "UCC" means the Uniform Commercial Code or such other Law as in
effect in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.
"U.S. COLLATERAL AGENT" means Deutsche Bank Trust Company
Americas, in its capacity as collateral agent for the Finance Parties, and its
successors or successors in such capacity.
SECTION 1.04 TERMS GENERALLY. The definitions in SECTIONS
1.02 and 1.03 shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context, shall otherwise require. Unless
otherwise expressly provided herein, the word "day" means a calendar day.
ARTICLE II
THE SECURITY INTERESTS
SECTION 2.01 GRANT OF SECURITY INTERESTS. To secure the due
and punctual payment of all Finance Obligations, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing or due or to become due, in accordance with the terms thereof and to
secure the performance of all of the obligations of each Credit Party hereunder
and under the other Finance Documents, each Credit Party hereby grants to the
U.S. Collateral Agent for the benefit of the Finance Parties a security interest
in, and each Credit Party hereby pledges and collaterally assigns to the U.S.
Collateral Agent for the benefit of the Finance Parties, all of such Credit
Party's right, title and interest in, to and under the following, whether now
owned or existing or hereafter acquired, created or arising, whether tangible or
intangible, and regardless of where located (all of which are herein
collectively called the "COLLATERAL"):
(i) Stock;
(ii) Instruments;
(iii) LLC Interests;
(iv) Partnership Interests;
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(v) Investment Property;
(vi) Financial Assets;
(vii) all General Intangibles; and
(viii) all Proceeds of all or any of the Collateral
described in CLAUSES (i) through (vi) hereof;
PROVIDED, HOWEVER, that the Collateral shall not include except as otherwise
required by SECTION 6.10(d) of the Credit Agreement, shares of capital stock
having voting power in excess of 65% of the voting power of all classes of
capital stock of a Foreign Subsidiary of any Credit Party if, and solely to the
extent that, the inclusion of such shares of capital stock hereunder would cause
the undistributed earnings of such Foreign Subsidiary as determined for United
States federal income tax purposes to be treated as a deemed repatriation of the
earnings of such Foreign Subsidiary to such Foreign Subsidiary's United States
parent for Untied States federal income tax purposes.
SECTION 2.02 SECURITY INTERESTS ABSOLUTE. All rights of the
U.S. Collateral Agent, all security interests hereunder and all obligations of
each Credit Party hereunder are unconditional and absolute and independent and
separate from any other security for or guaranty of the Finance Obligations,
whether executed by such Credit Party, any other Credit Party or any other
Person. Without limiting the generality of the foregoing, the obligations of
each Credit Party hereunder shall not be released, discharged or otherwise
affected or impaired by:
(i) any extension, renewal, settlement, compromise,
acceleration, waiver or release in respect of any obligation of any
other Credit Party under any Finance Document or any other agreement or
instrument evidencing or securing any Finance Obligation, by operation
of Law or otherwise;
(ii) other than pursuant to SECTION 8.05 hereof, any
change in the manner, place, time or terms of payment of any Finance
Obligation or any other amendment, supplement or modification to any
Finance Document or any other agreement or instrument evidencing or
securing any Finance Obligation;
(iii) any release, non-perfection or invalidity of
any direct or indirect security for any Finance Obligation, any sale,
exchange, surrender, realization upon, offset against or other action in
respect of any direct or indirect security for any Finance Obligation or
any release of any other obligor or Finance Parties in respect of any
Finance Obligation;
(iv) any change in the existence, structure or
ownership of any Credit Party, or any insolvency, bankruptcy,
reorganization, arrangement, readjustment, composition, liquidation or
other similar proceeding affecting any Credit Party or its assets or any
resulting disallowance, release or discharge of all or any portion of
any Finance Obligation;
(v) the existence of any claim, set-off or other
right which any Credit Party may have at any time against the Borrowers,
any other Credit Party, any Agent, any other Finance Party or any other
Person, whether in connection herewith or any unrelated transaction;
PROVIDED that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
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(vi) any invalidity or unenforceability relating to
or against the Borrowers or any other Credit Party for any reason of any
Finance Document or any other agreement or instrument evidencing or
securing any Finance Obligation or any provision of applicable Law or
regulation purporting to prohibit the payment by the Borrowers or any
other Credit Party of any Finance Obligation;
(vii) any failure by any Finance Party: (A) to file
or enforce a claim against any Credit Party or its estate (in a
bankruptcy or other proceeding); (B) to give notice of the existence,
creation or incurrence by any Credit Party of any new or additional
indebtedness or obligation under or with respect to the Finance
Obligations; (C) to commence any action against any Credit Party; (D) to
disclose to any Credit Party any facts which such Finance Party may now
or hereafter know with regard to any Credit Party; or (E) to proceed
with due diligence in the collection, protection or realization upon any
collateral securing the Finance Obligations;
(viii) any direction as to application of payment by
the Borrowers, any other Credit Party or any other Person;
(ix) any subordination by any Finance Party of the
payment of any Finance Obligation to the payment of any other liability
(whether matured or unmatured) of any Credit Party to its creditors;
(x) any act or failure to act by the U.S.
Collateral Agent or any other Finance Party under this Agreement or
otherwise which may deprive any Credit Party of any right to
subrogation, contribution or reimbursement against any other Credit
Party or any right to recover full indemnity for any payments made by
such Credit Party in respect of the Finance Obligations; or
(xi) any other act or omission to act or delay of
any kind by any Credit Party or any Finance Party or any other Person or
any other circumstance whatsoever which might, but for the provisions of
this clause, constitute a legal or equitable discharge of any Credit
Party's obligations hereunder.
Each Credit Party has irrevocably and unconditionally delivered
this Agreement to the U.S. Collateral Agent, for the benefit of the Finance
Parties, and the failure by any other Person to sign this Agreement or a pledge
agreement similar to this Agreement or otherwise shall not discharge the
obligations of any Credit Party hereunder.
This Agreement shall remain fully enforceable against each
Credit Party irrespective of any defenses that any other Credit Party may have
or assert in respect of the Finance Obligations, including, without limitation,
failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury.
SECTION 2.03 CONTINUING LIABILITY OF THE CREDIT PARTIES. The
Security Interests are granted as security only and shall not subject the U.S.
Collateral Agent or any Finance Party to, or transfer or in any way affect or
modify, any obligation or liability of any Credit Party with respect to any of
the Collateral or any transaction in connection therewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Credit Party represents and warrants that:
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SECTION 3.01 TITLE TO COLLATERAL. Such Credit Party is the
legal, record and beneficial owner of, and has good and marketable title to, all
of the Collateral pledged by it hereunder, free and clear of any Liens other
than Permitted Liens and Liens securing indebtedness to be repaid with the
proceeds of the Finance Obligations and in respect of which the Administrative
Agents have received pay-off letters and instruments appropriate under local Law
to effect the termination of such Liens. Other than financing statements or
other similar or equivalent documents or instruments with respect to the
Security Interests and Permitted Liens, no financing statement, mortgage,
security agreement or similar or equivalent document or instrument covering all
or any part of the Collateral is on file or of record in any jurisdiction in
which such filing or recording would be effective to perfect a Lien on such
Collateral. No Collateral is in the possession or control of any Person
asserting any claim thereto or security interest therein, except that the U.S.
Collateral Agent or its nominee, custodian or a Securities Intermediary acting
on its behalf may have possession and/or control of Collateral as contemplated
hereby and by the other Finance Documents.
SECTION 3.02 VALIDITY, PERFECTION AND PRIORITY OF SECURITY
INTERESTS. The Security Interests constitute valid security interests under the
UCC securing the Finance Obligations. Upon Delivery of all Collateral to the
U.S. Collateral Agent in accordance with the provisions hereof and filing of UCC
financing statements stating that the same covers "all assets of the Debtor",
"all personal property of the Debtor" or words of similar import in the offices
specified in SCHEDULE V hereto, the Security Interests shall constitute
perfected security interests in all right, title and interest of such Credit
Party in the Collateral (subject to the requirements of Section 9-315 of the UCC
with respect to any proceeds of Collateral and to the further requirement that
additional steps may be necessary to perfect the Security Interests in dividends
or other distributions in kind), in each case prior to all other Liens and
rights of others therein except for Permitted Liens, and, to the extent control
of such Collateral may be obtained pursuant to Article 8 and/or 9 of the UCC,
the U.S. Collateral Agent will have control of the Collateral subject to no
adverse claims of any other Person. On and as of the date hereof no
registration, recordation or filing with any Governmental Authority is required
in connection with the execution or delivery of this Agreement, or necessary for
the validity or enforceability hereof or for the perfection of the Security
Interests.
SECTION 3.03 COLLATERAL.
(a) SCHEDULES I, II, III AND IV hereto (as such schedules
may be amended, supplemented or modified from time to time) set forth (i) the
name and jurisdiction of organization of, and the ownership interest (including
percentage owned and number of shares, units or other equity interests) of such
Credit Party in the Shares, LLC Interests and Partnership Interests issued by
each of such Credit Party's direct Subsidiaries which are required to be
included in the Collateral and pledged hereunder, (ii) all other Shares, LLC
Interests and Partnership Interests directly owned by such Credit Party that are
required to be included in the Collateral and pledged hereunder and (iii) the
issuer, date of issuance and amount of all promissory notes directly owned or
held by such Credit Party that are required to be included in the Collateral and
pledged hereunder. Such Credit Party holds all such Collateral directly (i.e.,
not through a Subsidiary, Securities Intermediary or any other Person).
(b) All Collateral consisting of Pledged Shares, Pledged LLC
Interests and Pledged Partnership Interests has been duly authorized and validly
issued, is fully paid and non-assessable and is subject to no options to
purchase or similar rights of any Person. Except as set forth on SCHEDULES I,
III and IV hereto, (i) such Collateral constitutes 100% of the issued and
outstanding shares of capital stock or other equity interests of the respective
issuers thereof, (ii) no issuer of Collateral has outstanding any security
convertible into or exchangeable for any shares of its capital stock or other
equity interests or any warrant, option, convertible security, instrument or
other interest entitling the holder thereof to acquire any such shares or any
security convertible into or exchangeable for such shares, (iii) there are no
voting
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trusts, stockholder agreements, proxies or other agreements in effect with
respect to the voting or transfer of such shares of its capital stock and (iv)
there are no Liens or agreements, arrangements or obligations to create or give
any Lien relating to any such shares of capital stock. No Credit Party is now
and or will become a party to or otherwise bound by any agreement, other than
this Agreement, which restricts in any manner the rights of the U.S. Collateral
Agent or any other present or future holder of any Collateral with respect
thereto.
SECTION 3.04 NO CONSENTS. No consent of any other Person
(including, without limitation, any stockholder or creditor of such Credit Party
or any of its Subsidiaries) and no order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any Governmental Authority is required to be obtained by such
Credit Party in connection with the execution, delivery or performance of this
Agreement, or in connection with the exercise of the rights and remedies of the
U.S. Collateral Agent pursuant to this Agreement, except as may be required in
connection with the disposition of the Collateral by Laws affecting the offering
and sale of securities generally.
ARTICLE IV
COVENANTS
Each Credit Party covenants and agrees that until the payment in
full of all Finance Obligations and until there is no commitment by any Finance
Party to make further advances, incur obligations or otherwise give value, such
Credit Party will comply with the following:
SECTION 4.01 DELIVERY OF COLLATERAL. All Collateral shall be
Delivered to and held by or on behalf of the U.S. Collateral Agent pursuant
hereto; PROVIDED that so long as no Event of Default shall have occurred and be
continuing, and except as required by the U.S. Security Agreement, Canadian
Security Agreement, Quebec Hypothec or any other Finance Document, each Credit
Party may retain any Collateral (i) consisting of checks, drafts and other
Instruments (other than Pledged Notes and any additional or substitute
promissory notes issued to or otherwise acquired by such Credit Party in respect
of Pledged Notes) received by it in the ordinary course of business or (ii)
which it is otherwise entitled to receive and retain pursuant to SECTION 5.01
hereof, and the U.S. Collateral Agent shall, promptly upon request of any Credit
Party, make appropriate arrangements for making any U.S. Collateral consisting
of an Instrument or a Certificated Security pledged by such Credit Party
available to it for purposes of presentation, collection or renewal (any such
arrangement to be effected, to the extent deemed appropriate to the U.S.
Collateral Agent, against trust receipt or like document). All Collateral
Delivered hereunder shall be accompanied by any required transfer tax stamps.
The U.S. Collateral Agent shall have the right at any time upon the request of
the Required Lenders, and upon notice to any Credit Party, to cause any or all
of the Collateral to be transferred of record into the name of the U.S.
Collateral Agent or its nominee. Each Credit Party will promptly give the U.S.
Collateral Agent copies of any notices or other communications received by it
with respect to Collateral registered in the name of such Credit Party, and the
U.S. Collateral Agent will promptly give each Credit Party copies of any notices
and communications received by the U.S. Collateral Agent with respect to
Collateral registered in the name of the U.S. Collateral Agent or its nominee or
custodian.
SECTION 4.02 DELIVERY OF PERFECTION CERTIFICATE; FILING OF
FINANCING STATEMENTS AND DELIVERY OF SEARCH REPORTS. Not less than five Business
Days prior to the Closing Date, such Credit Party shall deliver its Perfection
Certificate to the U.S. Collateral Agent and shall cause all filings and
recordings and other actions specified in SCHEDULE V hereto to have been
completed. The information set forth in the Perfection Certificate shall be
correct and complete as of the Closing Date.
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SECTION 4.03 CHANGE OF NAME, IDENTITY, STRUCTURE OR
LOCATION; SUBJECTION TO OTHER SECURITY AGREEMENTS. Except pursuant to Asset
Dispositions permitted by the Credit Agreement, such Credit Party will not
change the location of any Collateral or its name, identity, structure or
location (determined as provided in Section 9-307 of the UCC) in any manner, and
shall not become bound, as provided in Section 9-203(d) of the UCC, by a
security agreement entered into by another Person, in each case unless it shall
have given the U.S. Collateral Agent not less than 30 days' prior notice
thereof. Except pursuant to Asset Dispositions permitted by the Credit
Agreement, such Credit Party shall not in any event change the location of any
Collateral or its name, identity, structure or location (determined as provided
in Section 9-307 of the UCC), or become bound, as provided in Section 9-203(d)
of the UCC, by a security agreement entered into by another Person, if such
change would cause the Security Interests in any Collateral to lapse or cease to
be perfected unless such Credit Party has taken on or before the date of lapse
all actions necessary to ensure that the Security Interests in the Collateral do
not lapse or cease to be perfected.
SECTION 4.04 FURTHER ACTIONS. Such Credit Party will, from
time to time at its expense and in such manner and form as the U.S. Collateral
Agent may reasonably request, execute, deliver, file and record any financing
statement, specific assignment, instrument, document, agreement or other paper
and take any other action (including, without limitation, any filings of
financing or continuation statements under the UCC) that from time to time may
be necessary or advisable, or that the U.S. Collateral Agent may reasonably
request, in order to create, preserve, perfect, confirm or validate the Security
Interests or to enable the U.S. Collateral Agent and the Finance Parties to
obtain the full benefit of this Agreement or to exercise and enforce any of its
rights, powers and remedies created hereunder or under applicable Law with
respect to any of the Collateral. To the extent permitted by applicable Law,
such Credit Party hereby authorizes the U.S. Collateral Agent to file, in the
name of such Credit Party or otherwise and without the signature or other
separate authorization or authentication of such Credit Party appearing thereon,
such UCC financing statements, continuation statements or other financing
statements as the U.S. Collateral Agent in its sole discretion may deem
necessary or appropriate to further perfect or maintain the perfection of the
Security Interests. Such Credit Party agrees that a carbon, photographic,
photostatic or other reproduction of this Agreement or of a financing statement
is sufficient as a financing statement. The Credit Parties shall pay the costs
of, or incidental to, any recording or filing of any financing or continuation
statements concerning the Collateral.
SECTION 4.05 DISPOSITION OF COLLATERAL. Such Credit Party
will not sell, exchange, assign or otherwise dispose of, or grant any option
with respect to, any Collateral or create or suffer to exist any Lien (other
than the Security Interests and Permitted Liens) on any Collateral except that,
subject to the rights of the U.S. Collateral Agent and the Finance Parties
hereunder if a Default or an Event of Default shall have occurred and be
continuing, such Credit Party may sell, exchange, assign or otherwise dispose
of, or grant options with respect to, Collateral to the extent expressly
permitted by the Credit Agreement whereupon, in the case of any such
disposition, the Security Interests created hereby in such item (but not in any
Proceeds arising from such disposition) shall cease immediately without any
further action on the part of the U.S. Collateral Agent.
SECTION 4.06 ADDITIONAL COLLATERAL. Such Credit Party will
cause each issuer of the Collateral not to issue any stock, other securities,
limited liability company membership interests, partnership interests,
promissory notes or other instruments in addition to or in substitution for the
Pledged Shares, Pledged LLC Interests, Pledged Partnership Interests and Pledged
Notes issued by such issuer, except to such Credit Party and, in the event that
any issuer of Collateral at any time issues any additional or substitute stock,
other securities, limited liability company membership interests, partnership
interests, promissory notes or other instruments to such Credit Party, such
Credit Party will immediately Deliver all such items to the U.S. Collateral
Agent to hold as Collateral hereunder and will promptly thereafter deliver to
the U.S. Collateral Agent a certificate executed by an authorized officer of
such
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Credit Party describing such Pledged Shares, Pledged LLC Interests, Pledged
Partnership Interests and/or Pledged Notes, attaching such supplements to
SCHEDULES I THROUGH V hereto as are necessary to cause such Schedules to be
complete and accurate at such time and certifying that such Pledged Shares,
Pledged LLC Interests, Pledged Partnership Interests and/or Pledged Notes have
been duly pledged with the U.S. Collateral Agent hereunder.
SECTION 4.07 INFORMATION REGARDING COLLATERAL. Such Credit
Party will, promptly upon request, provide to the U.S. Collateral Agent all
information and evidence it may reasonably request concerning the Collateral to
enable the U.S. Collateral Agent to enforce the provisions of this Agreement.
ARTICLE V
DISTRIBUTIONS ON COLLATERAL; VOTING
SECTION 5.01 RIGHT TO RECEIVE DISTRIBUTIONS ON COLLATERAL;
VOTING.
(a) So long as no Event of Default shall have occurred and
be continuing:
(i) Each Credit Party shall be entitled to exercise
any and all voting, management, administration and other consensual
rights pertaining to the Collateral or any part thereof for any purpose
not inconsistent with the terms of this Agreement and the other Finance
Documents; PROVIDED, HOWEVER, that each Credit Party shall give the U.S.
Collateral Agent at least five days' written notice of the manner in
which it intends to exercise, or the reasons for refraining from
exercising, any such right, and no Credit Party shall exercise or
refrain from exercising any such right if, in the U.S. Collateral
Agent's judgment, such action would violate or be inconsistent with any
of the terms of this Agreement, any other Finance Document or any
Derivatives Agreement, or would have the effect of impairing the
position or interests of the U.S. Collateral Agent or any other Finance
Party hereunder or thereunder.
(ii) Each Credit Party shall be entitled to receive
and retain any and all dividends, interest, distributions, cash,
instruments and other payments and distributions made upon or in respect
of the Collateral; PROVIDED, HOWEVER, that any and all:
(A) dividends, interest and other payments
and distributions paid or payable other than in cash in respect
of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any
Collateral;
(B) dividends and other payments and
distributions paid or payable in cash in respect of any
Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus;
(C) additional stock, other securities,
limited liability company membership interests, partnership
interests, promissory notes or other instruments or property
paid or distributed in respect of any Pledged Shares, Pledged
LLC Interests or Pledged Partnership Interests by way of
share-split, spin-off, split-up, reclassification, combination
of shares or similar rearrangement;
(D) all other or additional stock, other
securities, limited liability company membership interests,
partnership interests, promissory notes or other instruments or
property which may be paid in respect of the Collateral by
reason of any consolidation, merger, exchange of shares,
conveyance of assets, liquidation or similar reorganization; and
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(E) cash paid, payable or otherwise
distributed in respect of principal of, in redemption of, or in
exchange for, any Collateral;
shall be forthwith (i) Delivered to the U.S. Collateral Agent or its
nominee or custodian to hold as Collateral hereunder or (ii) in the case
of any amount referred to in this SECTION 5.01(a)(ii) paid or
distributed in cash, forthwith deposited in a Deposit Account maintained
with the U.S. Collateral Agent or with respect to which an effective
Account Control Agreement as contemplated by SECTION 4.14 of the U.S.
Security Agreement has been delivered to the U.S. Collateral Agent and
shall, if received by any Credit Party, be received in trust for the
benefit of the U.S. Collateral Agent and the Finance Parties, be
segregated from the other property or funds of such Credit Party and be
forthwith Delivered, in the same form as so received, to the U.S.
Collateral Agent or its nominee or custodian to hold as Collateral or
deposited in a Deposit Account as contemplated by CLAUSE (ii) above.
(iii) The U.S. Collateral Agent shall, upon receiving
a written request from any Credit Party accompanied by a certificate
signed by an authorized officer of such Credit Party stating that no
Default or Event of Default has occurred and is continuing, execute and
deliver (or cause to be executed and delivered) to such Credit Party or
as specified in such request all proxies, powers of attorney, consents,
ratifications and waivers and other instruments as such Credit Party may
reasonably request for the purpose of enabling such Credit Party to
exercise the voting and other rights which it is entitled to exercise
pursuant to PARAGRAPH (i) above and to receive the dividends, interest,
distributions, cash, instruments or other payments or distributions
which it is authorized to receive and retain pursuant to PARAGRAPH (ii)
above in respect of any of the Collateral which is registered in the
name of the U.S. Collateral Agent or its nominee.
(b) Upon the occurrence and during the continuance of an
Event of Default:
(i) All rights of each Credit Party to receive the
dividends, interest, distributions, cash, instruments and other payments
and distributions which it would otherwise be authorized to receive and
retain pursuant to SECTION 5.01(a)(ii) shall cease, and all such rights
shall thereupon become vested in the U.S. Collateral Agent, which shall
thereupon have the sole right to receive and hold as Collateral such
dividends, interest, distributions, cash, instruments and other payments
and distributions.
(ii) All dividends, interest, distributions, cash,
instruments and other payments and distributions which are received by
any Credit Party contrary to the provisions of paragraph (i) of this
SECTION 5.01(b) shall be received in trust for the benefit of the U.S.
Collateral Agent and the Finance Parties, shall be segregated from other
property or funds of such Credit Party and shall be forthwith Delivered,
in the same form as so received to the U.S. Collateral Agent or its
nominee or custodian to hold as Collateral.
(c) Upon the occurrence and during the continuance of an
Event of Default, all rights of such Credit Party to exercise the voting,
management, administration and other consensual rights which it would otherwise
be entitled to exercise pursuant to SECTION 5.01(a)(i) shall cease, all such
rights shall thereupon become vested in the U.S. Collateral Agent, who shall
thereupon have the sole right to exercise such voting and other consensual
rights, and such Credit Party shall take all actions as may be necessary or
appropriate to effect such right of the U.S. Collateral Agent.
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ARTICLE VI
GENERAL AUTHORITY; REMEDIES
SECTION 6.01 GENERAL AUTHORITY. Each Credit Party hereby
irrevocably appoints the U.S. Collateral Agent and any officer or agent duly
appointed by the U.S. Collateral Agent as its true and lawful attorney-in-fact,
with full power of substitution, in the name of such Credit Party, the U.S.
Collateral Agent, the Finance Parties or otherwise, for the sole use and benefit
of the U.S. Collateral Agent and the Finance Parties, but at such Credit Party's
expense, to the extent permitted by Law, to exercise at any time and from time
to time while an Event of Default has occurred and is continuing, all or any of
the following powers with respect to all or any of the Collateral, all acts of
such attorney being hereby ratified and confirmed; such power, being coupled
with an interest, is irrevocable until the Finance Obligations are paid in full
and until there is no commitment by any Finance Party to make further advances,
incur obligations or otherwise give value:
(i) to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to carry out the terms of this Agreement;
(ii) to receive, take, indorse, assign and deliver
any and all checks, notes, drafts, acceptances, documents and other
negotiable and non-negotiable Instruments taken or received by such
Credit Party as, or in connection with, the Collateral;
(iii) to accelerate any Pledged Note which may be
accelerated in accordance with its terms, and to otherwise demand, sue
for, collect, receive and give acquittance for any and all monies due or
to become due on or by virtue of any Collateral;
(iv) to commence, settle, compromise, compound,
prosecute, defend or adjust any claim, suit, action or proceeding with
respect to, or in connection with, the Collateral;
(v) to sell, transfer, assign or otherwise deal in
or with the Collateral or the Proceeds or avails thereof, as fully and
effectually as if the U.S. Collateral Agent were the absolute owner
thereof;
(vi) to extend the time of payment of any or all of
the Collateral and to make any allowance and other adjustments with
respect thereto;
(vii) to vote all or any part of the Pledged Shares,
Pledged LLC Interests, Pledged Partnership Interests and/or Pledged
Notes (whether or not transferred into the name of the U.S. Collateral
Agent) and give all consents, waivers and ratifications in respect of
the Collateral; and
(viii) to do, at its option, but at the expense of
such Credit Party, at any time or from time to time, all acts and things
which the U.S. Collateral Agent reasonably deems necessary to protect or
preserve the Collateral and to realize upon the Collateral.
SECTION 6.02 REMEDIES UPON EVENT OF DEFAULT.
(a) If any Event of Default has occurred and is continuing,
the U.S. Collateral Agent may, in addition to all other rights and remedies
granted to it in this Agreement and in any other agreement securing, evidencing
or relating to the Finance Obligations: (i) exercise on behalf of the Finance
Parties all rights and remedies of a secured party under the UCC (whether or not
in effect in the
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jurisdiction where such rights are exercised) and, in addition, (ii)
without demand of performance or other demand or notice of any kind (except as
herein provided or as may be required by mandatory provisions of Law) to or upon
any Credit Party or any other Person (all of which demands and/or notices are
hereby waived by each Credit Party), (A) apply all cash, if any, then held by it
as Collateral as specified in SECTION 6.07 and (B) if there shall be no such
cash or if such cash shall be insufficient to pay all the Finance Obligations in
full or cannot be so applied for any reason or if the U.S. Collateral Agent
determines to do so, collect, receive, appropriate and realize upon the
Collateral and/or sell, assign, give an option or options to purchase or
otherwise dispose of and deliver the Collateral (or contract to do so) or any
part thereof in one or more parcels (which need not be in round lots) at public
or private sale or at broker's board or on any securities exchange, at any
office of the U.S. Collateral Agent or elsewhere in such manner as is
commercially reasonable and as the U.S. Collateral Agent may deem best, for
cash, on credit or for future delivery, without assumption of any credit risk
and at such price or prices as the U.S. Collateral Agent may deem satisfactory.
(b) The U.S. Collateral Agent shall give each Credit Party
not less than 10 days' prior notice of the time and place of any sale or other
intended disposition of any of the Collateral, except any Collateral which
threatens to decline speedily in value or is of a type customarily sold on a
recognized market. Any such notice shall (i) in the case of a public sale, state
the time and place fixed for such sale, (ii) in the case of a sale at a broker's
board or on a securities exchange, state the board or exchange at which such
sale is to be made and the day on which the Collateral, or the portion thereof
being sold, will first be offered for sale, (iii) in the case of a private sale,
state the day after which such sale may be consummated, (iv) contain the
information specified in Section 9-613 of the UCC, (v) be authenticated and (vi)
be sent to the parties required to be notified pursuant to Section 9-611(c) of
the UCC; PROVIDED that, if the U.S. Collateral Agent fails to comply with this
sentence in any respect, its liability for such failure shall be limited to the
liability (if any) imposed on it as a matter of Law under the UCC. The
Collateral Agent and each Credit Party agree that such notice constitutes
reasonable notification within the meaning of Section 9-611 of the UCC. Except
as otherwise provided herein, each Credit Party hereby waives, to the extent
permitted by applicable Law, notice and judicial hearing in connection with the
U.S. Collateral Agent's taking possession or disposition of any of the
Collateral.
(c) The U.S. Collateral Agent or any Finance Party may be
the purchaser of any or all of the Collateral so sold at any public sale (or, if
the Collateral is of a type customarily sold in a recognized market or is of a
type which is the subject of widely distributed standard price quotations, at
any private sale). Each Credit Party will execute and deliver such documents and
take such other action as the U.S. Collateral Agent reasonably deems necessary
or advisable in order that any such sale may be made in compliance with Law.
Upon any such sale, the U.S. Collateral Agent shall have the right to deliver,
assign and transfer to the purchaser thereof the Collateral so sold. Each
purchaser at any such sale shall hold the Collateral so sold to it absolutely
and free from any claim or right of whatsoever kind. Any such public sale shall
be held at such time or times within ordinary bankers hours and at such place or
places as the U.S. Collateral Agent may fix in the notice of such sale. At any
such sale, the Collateral may be sold in one lot as an entirety or in separate
parcels, as the U.S. Collateral Agent may determine. The U.S. Collateral Agent
shall not be obligated to make any such sale pursuant to any such notice. The
U.S. 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 the sale, and such sale may be made at any time
or place to which the same may be so adjourned without further notice. In the
case of any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by the U.S. Collateral Agent
until the selling price is paid by the purchaser thereof, but the U.S.
Collateral Agent shall not incur any liability in the case of the failure of
such purchaser to take up and pay for the Collateral so sold and, in the case of
any such failure, such Collateral may again be sold upon like notice.
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SECTION 6.03 SECURITIES ACT; REGISTRATION RIGHTS.
(a) SECURITIES ACT. In view of the position of the Credit
Parties in relation to the Collateral, or because of other present or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute in effect in Canada or hereafter
enacted analogous in purpose or effect (such Act and any such similar statute as
from time to time in effect being herein called the "SECURITIES LAWS") with
respect to any disposition of the Collateral permitted hereunder. Each Credit
Party understands that compliance with the Securities Laws might very strictly
limit the course of conduct of the U.S. Collateral Agent if the U.S. Collateral
Agent were to attempt to dispose of all or any part of the Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the U.S. Collateral Agent in any attempt
to dispose of all or part of the Collateral under applicable Blue Sky or other
state securities Laws or similar Laws analogous in purpose or effect. Without
limiting the generality of the foregoing, the provisions of this SECTION 6.03
would apply if, for example, the U.S. Collateral Agent were to place all or any
part of the Collateral for private placement by an investment banking firm, or
if such investment banking firm purchased all or any part of the Collateral for
its own account, or if the U.S. Collateral Agent placed all or any part of the
Collateral privately with a purchaser or purchasers.
Accordingly, each Credit Party expressly agrees that the U.S.
Collateral Agent is authorized, in connection with any sale of any Collateral,
if it deems it advisable so to do, (i) to restrict the prospective bidders on or
purchasers of any of the Collateral to a limited number of sophisticated
investors who will represent and agree that they are purchasing for their own
account for investment and not with a view to the distribution or sale of any of
such Collateral, (ii) to cause to be placed on certificates for any or all of
the Collateral or on any other securities pledged hereunder a legend to the
effect that such security has not been registered under any Securities Law and
may not be disposed of in violation of the provision of said Act and (iii) to
impose such other limitations or conditions in connection with any such sale as
the U.S. Collateral Agent deems necessary or advisable in order to comply with
any Law. Each Credit Party covenants and agrees that it will execute and deliver
such documents and take such other action as the U.S. Collateral Agent
reasonably deems necessary or advisable in order that any such sale may be made
in compliance with any Securities Law and all other applicable Laws. Each Credit
Party acknowledges and agrees that such limitations may result in prices and
other terms less favorable to the seller than if such limitations were not
imposed, and, notwithstanding such limitations, agrees that any such sale shall
be deemed to have been made in a commercially reasonable manner, it being the
agreement of the Credit Parties and the U.S. Collateral Agent that the
provisions of this SECTION 6.03 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 U.S. Collateral Agent sells the Collateral.
Except as required by applicable Law, the U.S. Collateral Agent shall be under
no obligation to delay a sale of any Collateral for a period of time necessary
to permit the issuer of any securities contained therein to register such
securities under the Securities Laws, or under applicable state securities Laws,
even if the issuer would agree to do so. Furthermore, each Credit Party
acknowledges that it is aware that Section 9-610 of the UCC provides that the
U.S. Collateral Agent or a Finance Party may purchase Collateral if it is sold
at a public sale. Each Credit Party also acknowledges that it is aware that
staff personnel of the United States Securities and Exchange Commission have,
over a period of years, issued various No-Action Letters that describe
procedures which, in the view of the SEC staff, permit a foreclosure sale of
securities to occur in a manner that is public for purposes of Part 6 of Article
9 of the UCC, yet not public for purposes of Section 4(2) of the Securities Act.
Each Credit Party is also aware that the U.S. Collateral Agent or one or more
Finance Parties may wish to purchase Collateral that is sold at a foreclosure
sale, and such Credit Party believes that such purchases would be appropriate in
circumstances in which the Collateral Securities are sold in conformity with the
principles set forth in the No-Action Letters. Accordingly, each Credit Party
specifically agrees that a foreclosure sale conducted in
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conformity with the principles set forth in the No-Action Letters: (i) shall be
considered to be a "public" sale for purposes of Section 9-610 of the UCC; (ii)
will be considered commercially reasonable notwithstanding that the U.S.
Collateral Agent or other Finance Party has not registered or sought to register
the Collateral under the Securities Laws, even if one or more Credit Parties
agrees to pay all costs of the registration process; and (iii) shall be
considered to be commercially reasonable notwithstanding that the U.S.
Collateral Agent or one or more other Finance Parties purchases Collateral at
such a sale.
(b) REGISTRATION RIGHTS. If the U.S. Collateral Agent shall
determine to exercise its right to sell all or any of the Collateral and if in
the opinion of counsel for the U.S. Collateral Agent it is necessary, or if in
the opinion of the U.S. Collateral Agent it is advisable, to have all or any of
the securities included in the Collateral or the portion thereof to be sold
registered under the provisions of any Securities Laws, each Credit Party
agrees, at its own expense (including, without limitation, expenses relating to
brokers commissions), (i) to execute and deliver, and to use its commercially
reasonable efforts to cause each corporation whose securities are to be sold and
their respective directors and officers to execute and deliver, all such
instruments and documents, and to do or cause to be done all other such acts and
things, as may be necessary or, in the opinion of the U.S. Collateral Agent,
advisable to register such securities under the provisions of the Securities
Laws and to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are required
by Law to be furnished, and to make or cause to be made all amendments and
supplements thereto and to the related prospectus which, in the opinion of the
U.S. Collateral Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Laws and the rules and regulations of all
applicable Securities Commissions, (ii) to use its best efforts to cause the
corporation whose securities are to be sold to agree to prepare, and to make
available to its security holders as soon as practicable, an earnings statement
(which need not be audited) covering the period of at least 12 months beginning
with the first month after the effective date of any such registration
statement, which earning statement will satisfy the provisions of Section 11(a)
of the Securities Act of 1933 or of any other similar provision of applicable
Securities Laws, (iii) to use its commercially reasonable efforts to qualify
such securities under state Blue Sky or securities Laws and to obtain the
approval of any Governmental Authorities for the sale of such securities as
requested by the U.S. Collateral Agent and (iv) at the request of the U.S.
Collateral Agent, to indemnify and hold harmless the U.S. Collateral Agent and
any underwriters (and any person controlling any of the foregoing) from and
against any loss, liability, claim, damage and expense (and reasonable counsel
fees incurred in connection therewith) under the Securities Act of 1933 or
otherwise insofar as such loss, liability, claim, damage or expense arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or prospectus or in any
preliminary prospectus or any amendment or supplement thereto, or arises out of
or is based upon any omission or alleged omission to state therein a material
fact required to be stated or necessary to make the statements therein not
misleading, such indemnification to remain operative regardless of any
investigation made by or on behalf of the U.S. Collateral Agent or any
underwriters (or any person controlling any of the foregoing); PROVIDED that no
Credit Party shall be liable in any case to the extent that any such loss,
liability, claim, damage or expense arises out of or is based on an untrue
statement or alleged untrue statement or an omission or an alleged omission made
in reliance upon and in conformity with written information furnished to such
Credit Party by the U.S. Collateral Agent or any underwriter expressly for use
in such registration statement or prospectus.
SECTION 6.04 OTHER RIGHTS OF THE U.S. COLLATERAL AGENT.
(a) If any Event of Default has occurred and is continuing,
the U.S. Collateral Agent, instead of exercising the power of sale conferred
upon it pursuant to SECTION 6.02, may proceed by a suit or suits at Law or in
equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction, and may in addition
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institute and maintain such suits and proceedings as the U.S. Collateral Agent
may deem appropriate to protect and enforce the rights vested in it by this
Agreement.
(b) If any Event of Default has occurred and is continuing,
the U.S. Collateral Agent shall, to the extent permitted by applicable Law,
without notice to any Credit Party or any party claiming through any Credit
Party, without regard to the solvency or insolvency at such time of any Person
then liable for the payment of any of the Finance Obligations, without regard to
the then value of the Collateral and without requiring any bond from any
complainant in such proceedings, be entitled as a matter of right to the
appointment of a receiver or receivers (who may be the U.S. Collateral Agent) of
the Collateral or any part thereof, and of the profits, revenues and other
income thereof, pending such proceedings, with such powers as the court making
such appointment shall confer, and to the entry of an order directing that the
profits, revenues and other income of the property constituting the whole or any
part of the Collateral be segregated, sequestered and impounded for the benefit
of the U.S. Collateral Agent and the Finance Parties, and each Credit Party
irrevocably consents to the appointment of such receiver or receivers and to the
entry of such order.
SECTION 6.05 LIMITATION ON DUTY OF U.S. COLLATERAL AGENT IN
RESPECT OF COLLATERAL. Beyond the exercise of reasonable care in the custody
thereof, neither the U.S. Collateral Agent nor any Finance Party shall have any
duty to exercise any rights or take any steps to preserve the rights of any
Credit Party in the Collateral in its or their possession or control or in the
possession or control of any agent or bailee or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto, nor shall the U.S. Collateral Agent or any Finance Party be liable to
any Credit Party or any other Person for failure to meet any obligation imposed
by Section 9-207 of the UCC or any successor provision. Each Credit Party agrees
that the U.S. Collateral Agent shall at no time be required to, nor shall the
U.S. Collateral Agent be liable to any Credit Party for any failure to, account
separately to any Credit Party for amounts received or applied by the U.S.
Collateral Agent from time to time in respect of the Collateral pursuant to the
terms of this Agreement. Without limiting the foregoing, the U.S. Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession or control if the Collateral is
accorded treatment substantially equal to that which the U.S. Collateral Agent
accords its own property, and (i) shall not be liable or responsible for any
loss or damage to any of the Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any agent or bailee selected by the
U.S. Collateral Agent in good faith or (ii) shall not have any duty or
responsibility for ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the U.S. Collateral Agent has or is deemed to have
knowledge of such matters.
SECTION 6.06 WAIVER AND ESTOPPEL.
(a) Each Credit Party agrees, to the extent it may lawfully
do so, that it will not at any time in any manner whatsoever claim or take the
benefit or advantage of, any appraisal, valuation, stay, extension, moratorium,
turnover or redemption Law, or any Law permitting it to direct the order in
which the Collateral shall be sold, now or at any time hereafter in force which
may delay, prevent or otherwise affect the performance or enforcement of this
Agreement, and each Credit Party hereby waives all benefit or advantage of all
such Laws. Each Credit Party covenants that it will not hinder, delay or impede
the execution of any power granted to the U.S. Collateral Agent, the
Administrative Agents or any other Finance Party in any Finance Document.
(b) Each Credit Party, to the extent it may lawfully do so,
on behalf of itself and all who claim through or under it, including without
limitation any and all subsequent creditors, vendees, assignees and lienors,
waives and releases all rights to demand or to have any marshalling of the
Collateral upon any sale, whether made under any power of sale granted herein or
pursuant to judicial
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proceedings or under any foreclosure or any enforcement of this
Agreement, and consents and agrees that all of the Collateral may at any such
sale be offered and sold as an entirety.
(c) Each Credit Party waives, to the extent permitted by
Law, presentment, demand, protest and any notice of any kind (except the notices
expressly required hereunder or in the other Finance Documents) in connection
with this Agreement and any action taken by the U.S. Collateral Agent with
respect to the Collateral.
SECTION 6.07 APPLICATION OF PROCEEDS.
(a) PRIORITY OF DISTRIBUTIONS. The proceeds of any sale of,
or other realization upon, all or any part of the Collateral (including any
proceeds received and held pursuant to SECTION 5.01) and any cash held by the
U.S. Collateral Agent or its nominee or custodian hereunder shall be applied as
provided in SECTION 8.03 of the Credit Agreement. The U.S. Collateral Agent may
make distributions hereunder in cash or in kind or, on a ratable basis, in any
combination thereof.
(b) DISTRIBUTIONS WITH RESPECT TO LETTERS OF CREDIT AND
BANKERS' ACCEPTANCES. Each of the Credit Parties and the Finance Parties agrees
and acknowledges that if (after all outstanding Loans, LC obligations and BA
Reimbursement Obligations have been paid in full) the Lenders are to receive a
distribution on account of undrawn amounts with respect to Letters of Credit
issued (or deemed issued) or Bankers' Acceptances issued under the Credit
Agreement, such amounts shall be deposited in the applicable LC Cash Collateral
Account (in the case of Letters of Credit), or the relevant cash collateral
account established pursuant to SECTION 2.06(k) of the Credit Agreement (the "BA
CASH COLLATERAL ACCOUNT") (in the case of Bankers' Acceptances), as cash
security for the repayment of Finance Obligations owing to the Lenders as such.
Upon termination of all outstanding Letters of Credit and Bankers' Acceptances,
all of such cash security shall be applied to the remaining Finance Obligations
of the Lenders. If there remains any excess cash security, such excess cash
shall be withdrawn by the U.S. Collateral Agent or by the Canadian Collateral
Agent, as the case may be, from the U.S. LC Cash Collateral Account or the
Canadian LC Cash Collateral Account, respectively, or by the Canadian Collateral
Agent from the BA Cash Collateral Account, and distributed in accordance with
SECTION 6.07(a) hereof.
(c) RELIANCE BY U.S. COLLATERAL AGENT. For purposes of
applying payments received in accordance with this SECTION 6.07, the U.S.
Collateral Agent shall be entitled to rely upon (i) the relevant Administrative
Agent under the Credit Agreement and (ii) the authorized representative (the
"REPRESENTATIVE") for the Derivatives Creditors for a determination (which the
relevant Administrative Agent, each Representative for any Derivatives Creditor
and the Finance Parties agree (or shall agree) to provide upon request of the
U.S. Collateral Agent) of the outstanding Senior Obligations, and Derivatives
Obligations owed to the Finance Parties, and shall have no liability to any
Credit Party or any other Finance Party for actions taken in reliance on such
information except in the case of its gross negligence or willful misconduct.
Unless it has actual knowledge (including by way of written notice from a
Derivatives Creditor) to the contrary, the U.S. Collateral Agent, in acting
hereunder, shall be entitled to assume that no Derivatives Agreements are in
existence. All distributions made by the U.S. Collateral Agent pursuant to this
Section shall be presumptively correct (except in the event of manifest error),
and the U.S. Collateral Agent shall have no duty to inquire as to the
application by the Finance Parties of any amounts distributed to them.
(d) DEFICIENCIES. It is understood that the Credit Parties
shall remain jointly and severally liable to the extent of any deficiency
between the amount of the proceeds of the Collateral and the amount of the
Finance Obligations.
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ARTICLE VII
THE U.S. COLLATERAL AGENT
SECTION 7.01 CONCERNING THE U.S. COLLATERAL AGENT. The
provisions of ARTICLE IX of the Credit Agreement shall inure to the benefit of
the U.S. Collateral Agent in respect of this Agreement and shall be binding upon
all Credit Parties and all Finance Parties and upon the parties hereto in such
respect. In furtherance and not in derogation of the rights, privileges and
immunities of the U.S. Collateral Agent therein set forth:
(i) The U.S. Collateral Agent is authorized to take
all such actions as are provided to be taken by it as U.S. Collateral
Agent hereunder and all other action reasonably incidental thereto. As
to any matters not expressly provided for herein (including, without
limitation, the timing and methods of realization upon the Collateral),
the U.S. Collateral Agent shall act or refrain from acting in accordance
with written instructions from the Required Lenders or, in the absence
of such instructions or provisions, in accordance with its discretion.
(ii) The U.S. Collateral Agent shall not be
responsible for the existence, genuineness or value of any of the
Collateral or for the validity, perfection, priority or enforceability
of the Security Interests in any of the Collateral, whether impaired by
operation of Law or by reason of any action or omission to act on its
part hereunder unless such action or omission constitutes gross
negligence or willful misconduct. The U.S. Collateral Agent shall have
no duty to ascertain or inquire as to the performance or observance of
any of the terms of this Agreement by any Credit Party.
SECTION 7.02 APPOINTMENT OF CO-COLLATERAL AGENT. At any time
or times, in order to comply with any legal requirement in any jurisdiction, the
U.S. Collateral Agent may appoint another bank or trust company or one or more
other persons, either to act as co-agent or co-agents, jointly with the U.S.
Collateral Agent, or to act as separate agent or agents on behalf of the Finance
Parties with such power and authority as may be necessary for the effectual
operation of the provisions hereof and may be specified in the instrument of
appointment (which may, in the discretion of the U.S. Collateral Agent, include
provisions for the protection of such co-agent or separate agent similar to the
provisions of SECTION 7.01).
SECTION 7.03 APPOINTMENT OF SUB-AGENTS. The U.S. Collateral
Agent shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Shares, Pledged LLC Interests,
Pledged Partnership Interests and Pledged Notes, which may be held (in the
discretion of the U.S. Collateral Agent) in the name of the relevant Credit
Party, indorsed or assigned in blank or in favor of the U.S. Collateral Agent or
any nominee or custodian of the U.S. Collateral Agent or a sub-agent appointed
by the U.S. Collateral Agent.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 NOTICES. (a) Unless otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission) and mailed, faxed or
delivered, to the address, facsimile number or (subject to SUBSECTION (b) below)
electronic mail address specified for notices: (i) in the case of any Subsidiary
Guarantor, as set forth in SECTION 5.01 of the Guaranty; (ii) in the case of the
Borrowers, the Administrative Agents or any Lender, as specified in or pursuant
to SECTION 10.01 of the Credit Agreement; (iii) in the case of the U.S.
Collateral Agent, as set forth in the signature pages hereto; (iv) in the case
of any Derivatives Creditor as set forth in any applicable Derivatives
Agreement; or (v) in the case of any party, at such other address as
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shall be designated by such party in a notice to the U.S. Collateral Agent and
each other party hereto. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of: (i) actual receipt by
the intended recipient and (ii)(A) if delivered by hand or by courier, when
signed for by the intended recipient; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile
transmission, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of SUBSECTION (b) below), when delivered. Rejection or refusal to
accept, or the inability to deliver because of a changed address of which no
notice was given, shall not affect the validity of notice given in accordance
with this Section.
(b) Except as expressly provided herein or as may be agreed
by the Administrative Agents in their sole discretion, electronic mail and
internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information, and to
distribute Finance Documents for execution by the parties thereto, to distribute
executed Finance Documents in Adobe PDF format and may not be used for any other
purpose.
SECTION 8.02 NO WAIVERS; NON-EXCLUSIVE REMEDIES. No failure
or delay on the part of the U.S. Collateral Agent or any Finance Party to
exercise, no course of dealing with respect to, and no delay in exercising, any
right, power or privilege under this Agreement or any other Finance Document or
any other document or agreement contemplated hereby or thereby and no course of
dealing between the U.S. Collateral Agent or any Finance Party and any of the
Credit Parties shall operate as a waiver thereof nor shall any single or partial
exercise of any such right, power or privilege hereunder or under any Finance
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein and in the other Finance Documents are cumulative and are not
exclusive of any other remedies provided by Law. Without limiting the foregoing,
nothing in this Agreement shall impair the right of any Finance Party to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of any Credit
Party other than its indebtedness under the Finance Documents. Each Credit Party
agrees, to the fullest extent it may effectively do so under applicable Law,
that any holder of a participation in a Finance Obligation, whether or not
acquired pursuant to the terms of any applicable Finance Document, may exercise
rights of set-off or counterclaim or other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Credit Party in the amount of such participation.
SECTION 8.03 COMPENSATION AND EXPENSES OF THE U.S.
COLLATERAL AGENT; INDEMNIFICATION.
(a) EXPENSES. The Credit Parties, jointly and severally,
agree (i) to pay or reimburse the U.S. Collateral Agent for all out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation and
execution of this Agreement and any amendment, waiver, consent or other
modification of the provisions hereof (whether or not the transactions
contemplated hereby are consummated), and the consummation of the transactions
contemplated hereby, including all fees, disbursements and other charges of
Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the U.S. Collateral
Agent and McCarthy Tetrault LLP, the Canadian counsel for the U.S. Collateral
Agent, (ii) to pay or reimburse the U.S. Collateral Agent and the other Finance
Parties for all taxes which the U.S. Collateral Agent or any Finance Party may
be required to pay by reason of the security interests granted in the Collateral
(including any applicable transfer taxes) or to free any of the Collateral from
the lien thereof and (iii) to pay or reimburse each Agent, any Representative of
one or more Derivatives Creditors and each other Finance Party for all
reasonable costs and expenses incurred in connection with the enforcement,
attempted enforcement or preservation of any rights and remedies under this
Agreement (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the
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Finance Obligations and during any legal proceeding, including any proceeding
under any bankruptcy or insolvency proceeding), including all reasonable fees
and disbursements of counsel (including the allocated charges of internal
counsel). The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by any Agent and the costs of
independent public accountants and other outside experts retained by or on
behalf of the Agents and the Finance Parties. The agreements in this SECTION
8.03(a) shall survive the termination of the Commitments and Derivatives
Agreements and repayment of all Finance Obligations.
(b) PROTECTION OF COLLATERAL. If any Credit Party fails to
comply with the provisions of any Finance Document, such that the value of any
Collateral or the validity, perfection, rank or value of any Security Interest
is thereby diminished or potentially diminished or put at risk, the U.S.
Collateral Agent may, but shall not be required to, effect such compliance on
behalf of such Credit Party, and the Credit Parties shall reimburse the U.S.
Collateral Agent for the costs thereof on demand. Any and all excise, property,
sales and use taxes imposed by any state, federal, provincial or local authority
on any of the Collateral, or in respect of periodic appraisals of the Collateral
(as permitted by the Credit Agreement), or in respect of the sale or other
disposition thereof shall be borne and paid by the Credit Parties. If any Credit
Party fails to promptly pay any portion thereof when due, the U.S. Collateral
Agent may, at its option, but shall not be required to, pay the same and charge
the Credit Parties' account therefor, and the Credit Parties agree to reimburse
the U.S. Collateral Agent therefor on demand. All sums so paid or incurred by
the U.S. Collateral Agent for any of the foregoing and any and all other sums
for which any Credit Party may become liable hereunder and all costs and
expenses (including attorneys' fees, legal expenses and court costs) reasonably
incurred by the U.S. Collateral Agent or any Finance Party in enforcing or
protecting the Security Interests or any of their rights or remedies under this
Agreement, shall, together with interest thereon until paid at the rate
applicable to Revolving Base Rate Loans plus 2%, be additional Finance
Obligations hereunder.
(c) INDEMNIFICATION. Whether or not the transactions
contemplated hereby or by the other Finance Documents are consummated, each
Credit Party, jointly and severally, agrees to indemnify, save and hold harmless
each Indemnitee from and against: (i) any and all claims, demands, actions or
causes of action that may at any time (including at any time following repayment
of the Finance Obligations and the resignation or removal of any Agent or
Representative or the replacement of any Lender) be asserted or imposed against
any Indemnitee, arising out of or in any way relating to or arising out of the
ownership, purchasing, delivery, control, acceptance, financing, possession,
sale, return or other disposition of the Collateral, the violation of the Laws
of any country, state or other governmental body or unit, or any tort or
contract claim; (ii) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in CLAUSE (i) above; and (iii) any and all liabilities
(including liabilities under indemnities), losses, costs or expenses (including
fees and disbursements of counsel) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action or cause of
action or proceeding, or as a result of the preparation of any defense in
connection with any foregoing claim, demand, action or cause of action or
proceeding, in all cases, and whether or not an Indemnitee is a party to such
claim, demand, action or cause of action, or proceeding; PROVIDED that no
Indemnitee shall be entitled to indemnification for any claim to the extent such
claim is determined by a court of competent jurisdiction in a final
non-appealable judgment to have been caused by its own gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this SECTION 8.03(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Credit Party, its directors, shareholders or
creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. Without prejudice to the survival of any other agreement of the
Credit Parties hereunder and under the other Finance Documents, the agreements
and obligations of the Credit Parties contained in
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this SECTION 8.03(b) shall survive the repayment of the Loans, LC Obligations,
BA Reimbursement Obligations and other obligations under the Finance Documents
and the termination of the Commitments. Any amounts paid by any Indemnitee as to
which such Indemnitee has a right to reimbursement hereunder shall constitute
Finance Obligations.
(d) CONTRIBUTION. If and to the extent that the obligations
of any Credit Party under this SECTION 8.03 are unenforceable for any reason,
each Credit Party hereby agrees to make the maximum contribution to the payment
and satisfaction of such obligations which is permissible under applicable Law.
SECTION 8.04 ENFORCEMENT. The Finance Parties agree that
this Agreement may be enforced only by the action of the U.S. Collateral Agent,
acting upon the instructions of the Required Lenders (or, after the date on
which all Senior Obligations have been paid in full and all Commitments with
respect thereto terminated, the holders of at least 51% of the outstanding
Derivatives Obligations) and that no other Finance Party shall have any right
individually to seek 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 U.S. Collateral Agent or the holders of at
least 51% of the outstanding Derivatives Obligations, as the case may be, for
the benefit of the Finance Parties upon the terms of this Agreement and the
other Finance Documents.
SECTION 8.05 AMENDMENTS AND WAIVERS. Any provision of this
Agreement may be amended, changed, discharged, terminated or waived if, but only
if, such amendment or waiver is in writing and is signed by each Credit Party
directly affected by such amendment, change, discharge, termination or waiver
(it being understood that the addition or release of any Credit Party hereunder
shall not constitute an amendment, change, discharge, termination or waiver
affecting any Credit Party other than the Credit Party so added or released) and
either (i) the U.S. Collateral Agent (with the consent of the Required Lenders
or, to the extent required by SECTION 10.03 of the Credit Agreement, all of the
Lenders), at all times prior to the time on which all Finance Obligations have
been paid in full and all Commitments with respect thereto have been terminated
or (ii) the holders of at least 51% of all Derivatives Obligations then
outstanding, at all times after the time at which the Finance Obligations have
been paid in full and all Commitments with respect thereto have been terminated;
PROVIDED, HOWEVER, that no such amendment, change, discharge, termination or
waiver shall be made to SECTION 6.07 hereof or this SECTION 8.05 without the
consent of each Finance Party adversely affected thereby; and PROVIDED, FURTHER,
that any amendment, change, discharge, termination or waiver adversely affecting
the rights and benefits of a single Class of Finance Parties (and not all
Finance Parties in a like or similar manner) shall require the written consent
of the Required Finance Parties of such Class of Finance Parties. For the
purposes of this SECTION 8.05, the term "Class" means each class of Finance
Parties, i.e., whether (x) the Senior Lenders, as holders of the Senior
Obligations, (y) the Derivatives Creditors, as holders of the Derivatives
Obligations. For the purposes of this SECTION 8.05, the term "Required Finance
Parties" of any Class means each of (x) with respect to the Senior Obligations,
the Required Lenders (as defined in the Credit Agreement) or (y) with respect to
the Derivatives Obligations, the holders of 51% of all Derivatives Obligations
outstanding from time to time.
SECTION 8.06 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon each of the parties hereto and inure to the benefit of the U.S.
Collateral Agent and the Finance Parties and their respective successors and
assigns. In the event of an assignment of all or any of the Finance Obligations,
the rights hereunder, to the extent applicable to the indebtedness so assigned,
may be transferred with such indebtedness. No Credit Party shall assign or
delegate any of its rights and duties hereunder without the prior written
consent of the Required Lenders or all of the Lenders as provided in Section
10.03 of the Credit Agreement.
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SECTION 8.07 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT
AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT
THAT REMEDIES PROVIDED BY THE LAWS OF ANY JURISDICTIONS OTHER THAN NEW YORK ARE
GOVERNED BY THE LAWS OF SUCH JURISDICTIONS.
SECTION 8.08 LIMITATION OF LAW; SEVERABILITY.
(a) All rights, remedies and powers provided in this
Agreement may be exercised only to the extent that the exercise thereof does not
violate any applicable provision of Law, and all the provisions of this
Agreement are intended to be subject to all applicable mandatory provisions of
Law which may be controlling and be limited to the extent necessary so that they
will not render this Agreement invalid, unenforceable in whole or in part, or
not entitled to be recorded, registered or filed under the provisions of any
applicable Law.
(b) If any provision hereof is invalid or unenforceable in
any jurisdiction, then, to the fullest extent permitted by Law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the U.S. Collateral Agent and the
Finance Parties in order to carry out the intentions of the parties hereto as
nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provisions in any other jurisdiction.
SECTION 8.09 COUNTERPARTS; EFFECTIVENESS. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective with respect to each Credit
Party when the U.S. Collateral Agent shall receive counterparts hereof executed
by itself and such Credit Party; provided that, for greater certainty, this
Agreement shall become effective with respect to each of Eckerd Corporation,
Eckerd Fleet, Inc., EDC Drug Stores, Inc., EDC Licensing, Inc. Genovese Drug
Stores, Inc., Thrift Drug Inc. and Thrift Drug Services, Inc., notwithstanding
the fact that such Credit Parties shall be deemed to have executed the
counterpart of this Agreement at 11:59 p.m. on July 31, 2004, upon consummation
of the Acquisition.
SECTION 8.10 ADDITIONAL CREDIT PARTIES. It is understood and
agreed that any Affiliate of the Borrower that is required by any Finance
Document to execute a counterpart of this Agreement after the date hereof shall
automatically become a Credit Party hereunder with the same force and effect as
if originally named as a Credit Party hereunder by executing an instrument of
accession or joinder satisfactory in form and substance to the U.S. Collateral
Agent and delivering the same to the U.S. Collateral Agent. Concurrently with
the execution and delivery of such instrument of accession or joinder, such
Affiliate shall take all such actions and deliver to the U.S. Collateral Agent
all such documents and agreements as such Affiliate would have been required to
deliver to the U.S. Collateral Agent on or prior to the date of this Agreement
had such Affiliate been a party hereto on the date of this Agreement. Such
additional materials shall include, among other things, supplements to SCHEDULES
I, II, III, IV and V hereto (which Schedules shall thereupon automatically be
amended and supplemented to include all information contained in such
supplements) such that, after giving effect to the accession or joinder of such
Affiliate, each of SCHEDULES I, II, III, IV and V hereto is true, complete and
correct with respect to such Affiliate as of the effective date of such
accession or joinder. The execution and delivery of any such instrument of
accession or joinder, and the amendment and supplementation of the Schedules
hereto as provided in the immediately preceding sentence, shall not require the
consent of any other
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Credit Party hereunder. The rights and obligations of each Credit Party
hereunder shall remain in full force and effect notwithstanding the addition of
any new Credit Party as a party to this Agreement.
SECTION 8.11 TERMINATION; RELEASE OF CREDIT PARTIES.
(a) TERMINATION. Upon the full, final and irrevocable
payment and performance of all Finance Obligations, the cancellation or
expiration of all outstanding LC Obligations, BA Reimbursement Obligations and
Derivatives Agreements and the termination of all Commitments under the Finance
Documents, the Security Interests shall terminate and all rights to the
Collateral shall revert to the Credit Parties. In addition, at any time and from
time to time prior to such termination of the Security Interests, the U.S.
Collateral Agent may release any of the Collateral with the prior written
consent of the Required Lenders; PROVIDED that the release of all or
substantially all of the Collateral shall require the consent of all of the
Lenders. Upon any such termination of the Security Interests or release of
Collateral, the U.S. Collateral Agent will, upon request by and at the expense
of any Credit Party, execute and deliver to such Credit Party such documents as
such Credit Party shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be. Any
such documents shall be without recourse to or warranty by the U.S. Collateral
Agent or the Finance Parties. The U.S. Collateral Agent shall have no liability
whatsoever to any Finance Party as a result of any release of Collateral by it
as permitted by this SECTION 8.11. Upon any release of Collateral pursuant to
this SECTION 8.11, none of the Finance Parties shall have any continuing right
or interest in such Collateral or the Proceeds thereof.
(b) RELEASE OF CREDIT PARTIES. If any part of the Collateral
is sold or otherwise disposed of or liquidated in compliance with the
requirements of the Finance Documents (or such sale, other disposition or
liquidation has been approved in writing by those Finance Parties whose approval
is required by the applicable Finance Documents and the proceeds of such sale,
disposition or liquidation are applied in accordance with the provisions of the
Finance Documents, to the extent applicable, the U.S. Collateral Agent, at the
request and expense of such Credit Party, will duly release from the security
interest created hereby and assign, transfer and deliver to such Credit Party
(without recourse and without representation or warranty) such of the Collateral
as is then being (or has been) so sold, disposed of or liquidated as may be in
the possession or control of the U.S. Collateral Agent and has not theretofore
been released pursuant to this Agreement.
SECTION 8.12 ENTIRE AGREEMENT. This Agreement and the other
Finance Documents and, in the case of the Derivatives Creditors, the Derivatives
Agreements, constitute the entire agreement and understanding among the parties
hereto and supersede any and all prior agreements and understandings, oral or
written, and any contemporaneous oral agreements and understandings relating to
the subject matter hereof and thereof.
SECTION 8.13 CONFLICT.
(a) To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of the Credit
Agreement, on the other hand, the Credit Agreement shall control.
(b) The Credit Parties acknowledge that the Borrowers are,
concurrent with this Agreement, entering into the PPSA Security Agreement and
the Quebec Hypothec (together, the "CANADIAN SECURITY DOCUMENTS"); and the
Credit Parties further acknowledge and agree that, to the extent performance is
required under the Canadian Security Documents by a Credit Party and such
performance prevents such Credit Party from performing its obligations under
this Agreement, such Credit Party, to the
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extent its performance under the Canadian Security Documents is duly performed,
shall be deemed to have performed under this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first written above.
CREDIT PARTIES: THE JEAN COUTU GROUP (PJC) INC.
By:
----------------------------------------
Name:
Title:
BROOKS PHARMACY, INC.
ECKERD CORPORATION
ECKERD FLEET, INC.
EDC DRUG STORES, INC.
EDC LICENSING, INC.
GENOVESE DRUG STORES, INC.
JCG HOLDINGS (USA), INC.
JEAN COUTU ACQUISITION ONE, INC.
JEAN COUTU ACQUISITION TWO, INC.
JEAN COUTU ACQUISITION THREE, INC.
MAXI DRUG NORTH, INC.
MAXI DRUG, INC.
MAXI GREEN INC.
MC WOONSOCKET, INC.
P.J.C. DISTRIBUTION, INC.
P.J.C. OF VERMONT INC.
P.J.C. REALTY CO., INC.
PJC LEASE HOLDINGS, INC.
PJC OF CRANSTON, INC.
PJC OF EAST PROVIDENCE, INC.
PJC OF MASSACHUSETTS, INC.
PJC OF RHODE ISLAND, INC.
PJC OF WEST WARWICK, INC.
PJC REALTY MA, INC.
PJC SPECIAL REALTY HOLDINGS, INC.
THE JEAN COUTU GROUP (PJC) USA, INC.
THRIFT DRUG, INC.
THRIFT DRUG SERVICES, INC.
By:
--------------------------------------
Michel Coutu, as President of each
[Signature page to
Pledge Agreement]
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PJC ARLINGTON REALTY LLC
PJC DORCHESTER REALTY LLC
PJC ESSEX REALTY LLC
PJC HAVERHILL REALTY LLC
PJC HYDE PARK REALTY LLC
PJC MANCHESTER REALTY LLC
PJC MANSFIELD REALTY LLC
PJC NEW LONDON REALTY LLC
PJC NORWICH REALTY LLC
PJC PETERBOROUGH REALTY LLC
PJC PROVIDENCE REALTY LLC
PJC REVERE REALTY LLC
By: PJC SPECIAL REALTY HOLDINGS, INC., a
Delaware corporation, as Sole Member of each
By:
--------------------------------------
Michel Coutu, as President
MAXI DRUG SOUTH, L.P.
By: MAXI DRUG, INC., a Delaware corporation, its
General Partner
By:
--------------------------------------
Michel Coutu, as President
PJC REALTY N.E. LLC
JEAN COUTU GROUP HOLDINGS (USA), LLC
By: THE JEAN COUTU GROUP (PJC) USA, INC., a
Delaware corporation, its Sole Member
By:
--------------------------------------
Michel Coutu, as President of each
SERVICES SECURIVOL INC.
By:
--------------------------------------
Name:
Title:
[Signature page to
Pledge Agreement]
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RX INFORMATION CENTRE LTD.
By:
--------------------------------------
Name:
Title:
PATERSON'S PHARMACIES LIMITED
By:
--------------------------------------
Name:
Title:
3090671 NOVA SCOTIA COMPANY
By:
--------------------------------------
Name:
Title:
3090672 NOVA SCOTIA COMPANY
By:
--------------------------------------
Name:
Title:
COLLATERAL AGENT: DEUTSCH BANK TRUST COMPANIES
AMERICAS,
as U.S. Collateral Agent
By:
--------------------------------------
Name:
Title:
60 Wall Street
New York, NY 10005
Attention: Mary Kay Coyle
Telecopier No.: (212) 797-5690
[Signature page to
Pledge Agreement]
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