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EXHIBIT 10.4
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of_________, 2003 (together with all
amendments, if any, from time to time hereto, this "Agreement") between
SPORTRACK, LLC, a Delaware limited liability company (the "Pledgor"), and
GENERAL ELECTRIC CAPITAL CORPORATION in its capacity as Agent for Lenders
("Agent").
W I T N E S S E T H
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof by and among Pledgor, the other Persons named therein as Credit
Parties, Agent and the Persons signatory thereto from time to time as Lenders
(including all annexes, exhibits and schedules thereto, and as from time to time
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
the Lenders have agreed to make Loans to, and incur Letter of Credit Obligations
for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the shares of
Stock listed in Part A of SCHEDULE I hereto and the owner of the promissory
notes and instruments listed in Part B of SCHEDULE I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement; and
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"BANKRUPTCY CODE" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"PLEDGED COLLATERAL" has the meaning assigned to such term in
SECTION 2 hereof.
"PLEDGED ENTITY" means an issuer of Pledged Equity or Pledged
Indebtedness.
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"PLEDGED EQUITY" means those equity interests listed on Part A of
SCHEDULE I hereto.
"PLEDGED INDEBTEDNESS" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of SCHEDULE I hereto.
"SECURED OBLIGATIONS" has the meaning assigned to such term in SECTION
3 hereof.
2. PLEDGE. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Equity and the certificates representing the
Pledged Equity, and all dividends, distributions, cash, instruments
and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Pledged Equity; and
(b) such portion, as determined by Agent as provided in SECTION
6(d) below, of any additional equity interests of a Pledged Entity of
any other Person from time to time acquired by Pledgor in any manner
(which equity interests shall be deemed to be part of the Pledged
Equity), and the certificates representing such additional equity
interests, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such equity interests; and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the
Pledged Indebtedness; and
(d) all additional Indebtedness arising after the date hereof
and owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from
time to time received, receivable or otherwise distributed in respect
of that Pledged Indebtedness.
3. SECURITY FOR OBLIGATIONS. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
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4. DELIVERY OF PLEDGED COLLATERAL. All certificates and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Agent, for itself and the benefit of
Lenders, pursuant hereto. All Pledged Equity shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Agent and all promissory notes or other instruments
evidencing the Pledged Indebtedness shall be endorsed by Pledgor to Agent in
form and substance satisfactory to Agent.
5. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
to Agent that:
(a) Pledgor is, and at the time of delivery of the Pledged
Equity to Agent will be, the sole holder of record and the sole
beneficial owner of such Pledged Collateral pledged by Pledgor free
and clear of any Lien thereon or affecting the title thereto, except
for any Lien created by this Agreement; Pledgor is and at the time of
delivery of the Pledged Indebtedness to Agent will be, the sole owner
of such Pledged Collateral free and clear of any Lien thereon or
affecting title thereto, except for any Lien created by this
Agreement;
(b) All of the Pledged Equity has been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by,
and is the legal, valid and binding obligations of, the Pledged
Entities, and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Equity or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which
such issuance or transfer may be subject;
(e) All of the Pledged Equity is presently owned by Pledgor, and
are presently represented by the certificates listed on Part A of
SCHEDULE I hereto. As of the date hereof, there are no existing
options, warrants or calls relating to the Pledged Equity;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or
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other rights provided for in this Agreement or the remedies in respect
of the Pledged Collateral pursuant to this Agreement, except as may be
required in connection with such disposition by laws affecting the
offering and sale of securities generally;
(g) The pledge, assignment and delivery of the Pledged
Collateral pursuant to this Agreement will create a valid first
priority Lien on and a first priority perfected security interest in
favor of the Agent for the benefit of Agent and Lenders in the Pledged
Collateral and the proceeds thereof, securing the payment of the
Secured Obligations, subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms, except as enforceability is limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting generally the enforcement of creditor's
rights and except to the extent availability of the remedy of specific
performance or injunctive relief and other equitable remedies are
subject to the discretion of the court before which any proceeding
therefore may be brought;
(i) Part A of Schedule I completely and accurately sets forth
the number of shares of each Pledged Entity held by the Pledgor as of
the Closing Date. The Pledged Equity held by Pledgor constitutes the
percentage of the issued and outstanding equity of the Pledged
Entities set forth on Part A of Schedule I; and
(j) Except as disclosed on Part C of SCHEDULE I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this SECTION 5 shall
survive the execution and delivery of this Agreement.
6. COVENANTS. Pledgor covenants and agrees that until the
Termination Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its
rights in or to the Pledged Collateral, or any unpaid dividends,
interest or other distributions or payments with respect to the
Pledged Collateral or grant a Lien in the Pledged Collateral, in each
case, unless otherwise expressly permitted by the Credit Agreement;
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(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions that may be
reasonably necessary or that Agent from time to time may reasonably
request in writing in order to ensure to Agent and Lenders the
benefits of the Liens in and to the Pledged Collateral intended to be
created by this Agreement, including the filing of any necessary Code
financing statements, which may be filed by Agent with or without the
signature or further approval of Pledgor, and will cooperate with
Agent, at Pledgor's expense, in obtaining all necessary approvals and
making all necessary filings under federal, state, local or foreign
law in connection with such Liens or any sale or transfer of the
Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against
the claim of any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional
Stock or promissory notes or instruments of a Pledged Entity or any
other Person or Stock or promissory notes or instruments otherwise
required to be pledged to Agent pursuant to any of the Loan Documents,
which Stock, notes or instruments are not already Pledged Collateral,
promptly (and in any event within three (3) Business Days) deliver to
Agent a Pledge Amendment, duly executed by Pledgor, in substantially
the form of SCHEDULE II hereto (a "Pledge Amendment") in respect of
any such additional equity interests, notes or instruments, pursuant
to which Pledgor shall pledge to Agent all of such additional Stock,
notes and instruments. Pledgor hereby authorizes Agent to attach each
Pledge Amendment to this Agreement and agrees that all Pledged Equity
and Pledged Indebtedness listed on any Pledge Amendment delivered to
Agent shall for all purposes hereunder be considered Pledged
Collateral.
7. PLEDGOR'S RIGHTS. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with SECTION 8(a) hereof:
(a) Pledgor shall have the right, at any time and from time to
time, to exercise any and all voting and other consensual rights with
respect to the Pledged Collateral, or any part thereof for all
purposes not inconsistent with the provisions of this Agreement, the
Credit Agreement or any other Loan Document; PROVIDED, HOWEVER, that
no vote shall be cast, and no consent shall be given or action taken,
which would have a material adverse effect on the value of the Pledged
Collateral or which would authorize, effect or consent to (in each
case, unless and to the extent expressly permitted by the Credit
Agreement):
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(i) the dissolution or liquidation, in whole or in
part, of a Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity
with any other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for
Liens in favor of Agent;
(iv) any change in the authorized number of equity
interests, the stated capital or the authorized capital of a
Pledged Entity or the issuance of any additional equity
interests; or
(v) the alteration of the voting rights with respect
to the equity interests of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, at any time and from time to
time, to collect and receive for its own use all cash dividends and
interest paid in respect of the Pledged Equity and Pledged
Indebtedness to the extent not in violation of the Credit Agreement
OTHER THAN any and all: (A) dividends and interest paid or payable
other than in cash in respect of any Pledged Collateral, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral;
(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Equity in connection with a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in capital of a Pledged Entity; and
(C) cash paid, payable or otherwise distributed, in respect of
principal of, or in redemption of, or in exchange for, any Pledged
Collateral; PROVIDED, HOWEVER, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with CLAUSE (i) above) and all other distributions in
respect of any of the Pledged Equity or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged
Collateral and shall, if received by Pledgor, be received in trust for
the benefit of Agent, be segregated from the other property or funds
of Pledgor, and be forthwith delivered to Agent as Pledged Collateral
in the same form as so received (with any necessary indorsement).
8. DEFAULTS AND REMEDIES; PROXY.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and
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empowered to transfer and register in its name or in the name of its
nominee the whole or any part of the Pledged Collateral, to exchange
certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends,
interest, principal and other distributions made thereon, to sell in
one or more sales after ten (10) days' notice of the time and place of
any public sale or of the time at which a private sale is to take
place (which notice Pledgor agrees is commercially reasonable) the
whole or any part of the Pledged Collateral and to otherwise act with
respect to the Pledged Collateral as though Agent was the outright
owner thereof. Any sale shall be made at a public or private sale at
Agent's place of business, or at any place to be named in the notice
of sale, either for cash or upon credit or for future delivery at such
price as Agent may deem commercially reasonable, and Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of
Pledgor or any right of redemption. Each sale shall be made to the
highest bidder, but Agent reserves the right to reject any and all
bids at such sale, which in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer or agent of Agent. PLEDGOR
HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND
ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL,
INCLUDING THE RIGHT TO VOTE THE PLEDGED EQUITY, WITH FULL POWER OF
SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED EQUITY, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED EQUITY WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
EQUITY HOLDERS, CALLING SPECIAL MEETINGS OF EQUITY HOLDERS AND VOTING
AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED EQUITY ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY
PERSON (INCLUDING THE ISSUER OF THE PLEDGED EQUITY OR ANY OFFICER OR
AGENT THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT.
NOTWITHSTANDING THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO
EXERCISE ANY SUCH
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RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE
TO DO SO OR FOR ANY DELAY IN DOING SO.
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all
the Secured Obligations, or if the Pledged Collateral be offered for
sale in lots, if at any of such sales, the highest bid for the lot
offered for sale would indicate to Agent, in its discretion, that the
proceeds of the sales of the whole of the Pledged Collateral would be
unlikely to be sufficient to discharge all the Secured Obligations,
Agent may, on one or more occasions and in its discretion, postpone
any of said sales by public announcement at the time of sale or the
time of previous postponement of sale, and no other notice of such
postponement or postponements of sale need be given, any other notice
being hereby waived; PROVIDED, HOWEVER, that any sale or sales made
after such postponement shall be after ten (10) days' notice to
Pledgor.
(c) If at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under
the Securities Act of 1933, as amended (or any similar statute then in
effect) (the "Act"), Agent may, in its discretion (subject only to
applicable requirements of law), sell such Pledged Collateral or part
thereof by private sale in such manner and under such circumstances as
Agent may deem necessary or advisable, but subject to the other
requirements of this SECTION 8, and shall not be required to effect
such registration or to cause the same to be effected. Without
limiting the generality of the foregoing, in any such event, Agent in
its discretion (x) may, in accordance with applicable securities laws,
proceed to make such private sale notwithstanding that a registration
statement for the purpose of registering such Pledged Collateral or
part thereof could be or shall have been filed under said Act (or
similar statute), (y) may approach and negotiate with a single
possible purchaser to effect such sale, and (z) may restrict such sale
to a purchaser who is an accredited investor under the Act and who
will represent and agree that such purchaser is purchasing for its own
account, for investment and not with a view to the distribution or
sale of such Pledged Collateral or any part thereof. In addition to a
private sale as provided above in this SECTION 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this SECTION 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at
auction) be conducted subject to restrictions:
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(i) as to the financial sophistication and ability
of any Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon
any certificates representing the Pledged Collateral sold in such
sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made by
each Person bidding or purchasing at such sale relating to that
Person's access to financial information about Pledgor and such
Person's intentions as to the holding of the Pledged Collateral
so sold for investment for its own account and not with a view to
the distribution thereof; and
(iv) as to such other matters as Agent may, in its
discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in
compliance with the Bankruptcy Code and other laws affecting the
enforcement of creditors' rights and the Act and all applicable
state securities laws.
(d) Pledgor recognizes that Agent may be unable to effect a
public sale of any or all the Pledged Collateral and may be compelled
to resort to one or more private sales thereof in accordance with
CLAUSE (e) above. Pledgor also acknowledges that any such private sale
may result in prices and other terms less favorable to the seller than
if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall not be deemed
to have been made in a commercially unreasonable manner solely by
virtue of such sale being private. Agent shall be under no obligation
to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit the Pledged Entity to register such
securities for public sale under the Act, or under applicable state
securities laws, even if Pledgor and the Pledged Entity would agree to
do so.
(e) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole
or any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and Pledgor waives the benefit of all
such laws to the extent it lawfully may do so. Pledgor agrees that it
will not interfere with any right, power and remedy of Agent provided
for in this Agreement or now or hereafter existing at law or in equity
or by statute or otherwise, or the exercise or beginning of the
exercise by Agent of
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any one or more of such rights, powers or remedies. No failure or
delay on the part of Agent to exercise any such right, power or remedy
and no notice or demand which may be given to or made upon Pledgor by
Agent with respect to any such remedies shall operate as a waiver
thereof, or limit or impair Agent's right to take any action or to
exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
9. WAIVER. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. ASSIGNMENT. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. TERMINATION. Immediately following the Termination Date, in
accordance with the terms of Section 9.20 of the Credit Agreement, Agent shall
deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time subject
to this Agreement and not previously disposed of in accordance with this
Agreement and all instruments of assignment executed in connection therewith,
free and clear of the Liens hereof and, except as otherwise provided herein, all
of Pledgor' s obligations hereunder shall at such time terminate.
12. LIEN ABSOLUTE. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured
Obligations;
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(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. RELEASE. Pledgor consents and agrees that Agent may at any time,
or from time to time, in accordance with the terms of the Credit Agreement:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent
in connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without
notice to or further assent from Pledgor, it being hereby agreed that
Pledgor shall be and remain bound upon this Agreement, irrespective of
the value or condition of any of the Collateral, and notwithstanding
any such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest
and notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. REINSTATEMENT. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Pledgor or any Pledged Entity for liquidation or reorganization, should Pledgor
or any Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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15. MISCELLANEOUS.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including without limitation reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers,
directors, employees, agents or counsel shall be liable for any action
lawfully taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or
willful misconduct as finally determined by a court of competent
jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. SEVERABILITY. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or effect those portions of
this Agreement which are valid.
17. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
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(a) If to Agent, at:
General Electric Capital Corporation
335 Madison Avenue
12th Floor
New York, New York 10017
Attention: SportRack/Valleybrink Account
Officer
Facsimile:______________________________
with copies to:
General Electric Capital Corporation
201 High Ridge Road
Stamford, Connecticut 06927-5100
Attention: Corporate Counsel Commercial
Finance-Merchant Banking
Facsimile:______________________________
(b) If to Pledgor, at:
SPORTRACK, LLC
________________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
with copies to:
________________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
SECTION 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the
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persons designated above to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
18. SECTION TITLES. The Section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. BENEFIT OF LENDERS. All security interests granted or
contemplated hereby shall be for the benefit of Agent and Lenders, and all
proceeds or payments realized from the Pledged Collateral in accordance herewith
shall be applied to the Obligations in accordance with the terms of the Credit
Agreement.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
SPORTRACK, LLC
By
----------------------------------
Name
--------------------------------
Title
-------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By
----------------------------------
Name
--------------------------------
Its Duly Authorized Signatory
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