EXHIBIT 4.2
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT dated as of August 6, 1999 (as
amended, modified or otherwise supplemented, the "Pledge Agreement" or this
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"Agreement") by NATIONAL EQUIPMENT SERVICES, INC., a Delaware corporation (the
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"Borrower") and the Subsidiary Guarantors identified on the signature pages
hereof and such other parties as may become Subsidiary Guarantors after the date
hereof (hereinafter, the Borrower and such Subsidiary Guarantors collectively
referred to herein as the "Pledgors" or individually referred to as a "Pledgor")
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in favor of FIRST UNION NATIONAL BANK, in its capacity as agent (in such
capacity, the "Agent") for the Lenders under the Credit Agreement described
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below and any Affiliates of Lenders which provide interest rate or currency
protection agreements as hereafter provided (collectively, the "Lenders").
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RECITALS
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WHEREAS, pursuant to that certain credit agreement dated as of July 17,
1998 (the "Existing Credit Agreement") among the Borrower, the Guarantors, the
lenders party thereto (the "Existing Lenders") and the Agent, the Existing
Lenders required, as a condition precedent to their entering into the Existing
Credit Agreement and making extensions of credit to or for the account of the
Borrower thereunder, the Borrower and Guarantors to execute that certain pledge
agreement dated as of July 17, 1998 (the "Existing Pledge Agreement");
WHEREAS, the Lenders have agreed to amend the Existing Credit Agreement
pursuant to the Amended and Restated Credit Agreement dated as of the date
hereof (as amended, modified, extended, renewed or replaced from time to time,
the "Credit Agreement") among the Borrower, the Guarantors, the Lenders and the
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Agent to provide the Borrower with a $700,000,000 credit facility; and
WHEREAS, the Lenders have required, as a condition precedent to their
entering into the Credit Agreement and making extensions of credit to or for the
account of the Borrower thereunder, that the Pledgors agree to amend the
Existing Pledge Agreement to secure their respective obligations under the
Credit Agreement and the other Credit Documents in accordance with the terms of
this Pledge Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
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the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement. For purposes of this Agreement, the term "Lender" shall
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include any Affiliate of any Lender which has entered into a Hedging Agreement
with the Borrower to the extent permitted by the Credit Agreement in respect of
the Credit Party Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended,
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modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in the
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State of New York.
"Collateral": the Pledged Stock and all Proceeds thereof.
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"Collateral Account": any account established to hold money Proceeds,
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maintained under the sole dominion and control of the Agent, subject to
withdrawal by the Agent for the account of the Lenders as provided in
Section 8(a).
"Issuers": the collective reference to the companies identified on
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Schedule 1 attached hereto as the issuers of the Pledged Stock;
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individually, each an "Issuer."
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"Pledged Stock": the shares of Capital Stock listed on Schedule 1
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hereto, together with all stock certificates, options or rights of any
nature whatsoever that may be issued or granted by any Issuer to a Pledgor
in respect of the Pledged Stock while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-306(1)
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of the Uniform Commercial Code in effect in the State of New York on the
date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions with respect thereto.
"Secured Obligations": the collective reference to the following:
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(a) All unpaid principal of and interest on (including, without
limitation, interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans and other
obligations owing under the Credit Agreement and interest accruing at
the then applicable rate provided in the Credit Agreement after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Pledgors, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Pledgors to the Agent and the
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, any Notes,
the other Credit Documents, any Hedging Agreements with the Agent or
any Lender in respect of the Pledgors' obligations under the Credit
Agreement to the extent permitted by the Credit Agreement or any other
document made, delivered or given in connection therewith, in each
case, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to the Agent and the Lenders that are required to be paid
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paid by the Pledgors pursuant to the terms of the Credit Agreement,
any other Credit Document or any such Hedging Agreements); and
(b) All other indebtedness, liabilities and obligations of any
kind or nature, now existing or hereafter arising, owing by the
Pledgors to the Agent or any Lender, arising under this Pledge
Agreement or any of the other Credit Documents, whether primary,
secondary, direct, contingent, or joint and several.
"Securities Act": the Securities Act of 1933, as amended.
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(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each of the Pledgors hereby
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delivers to the Agent, for the ratable benefit of the Lenders, all the Pledged
Stock and hereby grants to the Agent, for the ratable benefit of the Lenders, a
first security interest in the Collateral, as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Secured Obligations.
3. Stock Powers. Concurrently with the delivery to the Agent of each
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certificate representing one or more shares of Pledged Stock, each of the
Pledgors shall deliver to the Agent an undated stock power covering such
certificate, duly executed in blank.
4. Representations and Warranties. Each of the Pledgors represents and
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warrants that:
(a) The shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of Capital Stock of each Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) The Pledgor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Stock, free of any and all Liens or
options in favor of, or claims of, any other Person, except the security
interests created by this Agreement.
(d) Upon delivery to the Agent of the stock certificates evidencing
the Pledged Stock, the security interest created by this Agreement will
constitute a valid, perfected first priority security interest in the
Collateral, enforceable in accordance with its terms against all creditors
of the Pledgor and any Persons purporting to purchase any Collateral from
the
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Pledgor, except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
5. Covenants. Each of the Pledgors covenants and agrees with the Agent
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and the Lenders that, from and after the date of this Agreement until this
Agreement is terminated and the security interests created hereby are released:
(a) If the Pledgor shall, as a result of its ownership of the Pledged
Stock, become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock
dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any shares of the
Pledged Stock, or otherwise in respect thereof, the Pledgor shall accept
the same as the agent of the Agent and the Lenders, hold the same in trust
for the Agent and the Lenders and deliver the same forthwith to the Agent
in the exact form received, duly endorsed by the Pledgor to the Agent, if
required, together with an undated stock power covering such certificate
duly executed in blank by the Pledgor and with, if the Agent so requests,
signature guaranteed, to be held by the Agent, subject to the terms hereof,
as additional collateral security for the Secured Obligations. Any sums
paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer shall be paid over to the Agent to be held by it
hereunder as additional collateral security for the Secured Obligations,
and in case any distribution of capital shall be made on or in respect of
the Pledged Stock or any property shall be distributed upon or with respect
to the Pledged Stock pursuant to the recapitalization or reclassification
of the capital of the Issuer or pursuant to the reorganization thereof, the
property so distributed shall be delivered to the Agent to be held by it
hereunder as additional collateral security for the Secured Obligations. If
any sums of money or property so paid or distributed in respect of the
Pledged Stock shall be received by the Pledgor, the Pledgor shall, until
such money or property is paid or delivered to the Agent, hold such money
or property in trust for the Agent and the Lenders, segregated from other
funds of the Pledgor, as additional collateral security for the Secured
Obligations.
(b) Without the prior written consent of the Agent, the Pledgor will
not (i) vote to enable, or take any other action to permit, any Issuer to
issue any stock or other equity securities of any nature or to issue any
other securities convertible into or granting the right to purchase or
exchange for any stock or equity securities of any nature of any Issuer,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant
any option with respect to, the Collateral, (iii) create, incur or permit
to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Collateral, or any interest therein, except for the
security interests created by this Agreement or (iv) enter into any
agreement or undertaking restricting the right or ability of the Pledgor or
the Agent to sell, assign or transfer any of the Collateral.
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(c) The Pledgor shall maintain the security interest created by this
Agreement as a first, perfected security interest and shall defend such
security interest against claims and demands of all Persons whomsoever. At
any time and from time to time, upon the written request of the Agent, and
at the sole expense of the Pledgor, the Pledgor will promptly and duly
execute and deliver such further instruments and documents and take such
further actions as the Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument
or chattel paper shall be promptly delivered to the Agent, duly endorsed in
a manner satisfactory to the Agent, to be held as Collateral pursuant to
this Agreement.
(d) The Pledgor shall pay, and save the Agent and the Lenders
harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by
this Agreement, except for any such liabilities which result from the gross
negligence or willful misconduct of the Agent.
6. Cash Dividends; Voting Rights. Unless an Event of Default shall have
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occurred and be continuing and the Agent shall have given notice to the Pledgors
of the Agent's intent to exercise its corresponding rights pursuant to Section 7
below, the Pledgors shall be permitted to receive all cash dividends paid in the
normal course of business of the Issuers and consistent with past practice or
otherwise to enable the partners or shareholders of the Pledgors to pay taxes,
to the extent permitted by the Credit Agreement, in respect of the Pledged Stock
and to exercise all voting and corporate rights with respect to the Pledged
Stock; provided, however, that no vote shall be cast or corporate right
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exercised or other action taken which, in the Agent's reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, this Agreement or any other
Credit Document.
7. Rights of the Lenders and the Agent. (a) All money Proceeds received
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by the Agent hereunder shall be held by the Agent for the benefit of the Lenders
in a Collateral Account. All Proceeds while held by the Agent in a Collateral
Account (or by the Pledgors in trust for the Agent and the Lenders) shall
continue to be held as collateral security for all the Secured Obligations and
shall not constitute payment thereof until applied as provided in Section 8(a).
(b) At any time after an Event of Default shall have occurred and be
continuing and the Agent shall give notice of its intent to exercise such rights
to the Pledgors, (i) the Agent shall have the right to receive any and all cash
dividends paid in respect of the Pledged Stock and make application thereof to
the Secured Obligations in the order set forth in Section 11 of the Security
Agreement, and (ii) all shares of the Pledged Stock shall be registered in the
name of the Agent or its nominee, and the Agent or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to such shares of
the Pledged Stock at any meeting of shareholders of any
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Issuer or otherwise and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
shares of the Pledged Stock as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of the
Pledged Stock upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate structure of any Issuer, or upon
the exercise by the Pledgors or the Agent of any right, privilege or option
pertaining to such shares of the Pledged Stock, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Agent may determine), all without liability
except to account for property actually received by it, but the Agent shall have
no duty to the Pledgors to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
8. Remedies. (a) At any time after an Event of Default shall have
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occurred and be continuing, at the Agent's election, the Agent may apply all or
any part of Proceeds held in any Collateral Account in payment of the Secured
Obligations in the order set forth in Section 3.15(b) to the Credit Agreement.
(b) At any time after an Event of Default shall have occurred, the Agent,
on behalf of the Lenders, may exercise, in addition to all other rights and
remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the Code. Without limiting the generality of
the foregoing, the Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Pledgors or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
assign, give an option or options to purchase or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, in the
over-the-counter market, at any exchange, broker's board or office of the Agent
or any Lender or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Agent or any Lender
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Pledgors to the extent permitted by applicable law. The Agent shall apply
any Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the Collateral or in
any way relating to the Collateral or the rights of the Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of counsel to the Agent, to the payment in whole or in part of the
Secured Obligations, in such order as the Agent may elect, and only after such
application and after the payment by the Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(1)(c) of the
Code, need the Agent account for the surplus, if any, to the Pledgors. If any
notice of a proposed sale or other disposition of
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Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 20 days before such sale or other disposition. The
Pledgors shall remain liable for any deficiency if the proceeds of any sale or
other disposition of Collateral are insufficient to pay the Secured Obligations
and the fees and disbursements of any attorneys employed by the Agent or any
Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Agent shall determine
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to exercise its right to sell any or all of the Pledged Stock pursuant to
Section 8 hereof, and if in the opinion of the Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the Pledgors will cause
the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Agent, necessary or advisable to register the Pledged Stock, or
that portion thereof to be sold, under the provisions of the Securities Act,
(ii) to use its best efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of one year
from the date of the first public offering of the Pledged Stock, or that portion
thereof to be sold, and (iii) to make all amendments thereto and/or to the
related prospectus which, in the opinion of the Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Pledgor acknowledges and agrees to cause such Issuer to comply
with the provisions of the securities or "Blue Sky" laws of any and all
jurisdiction which the Agent shall designate and to make available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) The Pledgors recognize that the Agent may be unable to effect a public
sale of any or all the Pledged Stock, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obligated to agree, among
other things, to acquire such securities for their own account for investment
and not with a view to the distribution or resale thereof. The Pledgors agree
that any such private sale may result in prices and other terms less favorable
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Agent shall be under no obligation to delay
a sale of any of the Pledged Stock for the period of time necessary to permit
the Issuer thereof to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if such Issuer
agree to do so.
(c) The Pledgors further agree to use best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section valid and binding
and in compliance with any and all other applicable requirements of law. The
Pledgors further agree that a breach of any of the covenants contained in this
Section will cause irreparable injury to the Agent and the Lenders, that the
Agent and the Lenders have no adequate remedy at law in respect of such breach
and, as a consequence, that each and every covenant contained in this Section
shall be specifically enforceable against the Pledgors,
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and the Pledgors hereby waive and agree not to assert any defenses against an
action for specific performance of such covenants except for a defense that no
Event of Default has occurred under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer. The Pledgors
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hereby authorize and instruct each Issuer to comply with any instruction
received by them or any one of them from the Agent in writing that (a) states
that an Event of Default has occurred and (b) is otherwise in accordance with
the terms of this Agreement, without any other or further instructions from the
Pledgors, and the Pledgors agree that each Issuer shall be fully protected in so
complying.
11. Agent's Appointment as Attorney-in-Fact. (a) The Pledgors hereby
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irrevocably constitute and appoint the Agent and any officer or agent of the
Agent, with full power of substitution, as their true and lawful attorney-in-
fact with fully irrevocable power and authority in the place and stead of the
Pledgors and in the name of the Pledgors or in the Agent's own name, from time
to time after the occurrence and during the continuation of an Event of Default,
in the Agent's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement, including, without limitation, any financing
statements, endorsement, assignment or other instruments of transfer.
(b) The Pledgors hereby ratify all that the Agent shall lawfully do or
cause to be done pursuant to the power of attorney granted in Section 11(a)
herein. All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
12. Duty of Agent. The Agent's sole duty with respect to the custody,
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safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to deal with it in the same
manner as the Agent deals with similar securities and property for its own
account, except that the Agent shall have no obligation to invest funds held in
any Collateral Account and may hold the same as demand deposits. Neither the
Agent, any Lender nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Pledgors or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of the
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Code, the Pledgors authorize the Agent to file financing statements with respect
to the Collateral without the signature of the Pledgors in such form and in such
filing offices as the Agent reasonably determines appropriate to perfect the
security interests of the Agent under this Agreement. A carbon, photographic or
other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
14. Authority of Agent. The Pledgors acknowledge that the rights and
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responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or
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non-exercise by the Agent of any option, voting right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Agent and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Agent and the Pledgors, the Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and neither any of the
Pledgors nor any Issuer shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
15. Notices. All notices shall be given or made in accordance with
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Section 11.1 of the Credit Agreement.
16. Severability. Any provision of this Agreement which is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
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terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Pledgors and
the Agent, provided that any provision of this Agreement may be waived by the
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Agent, on behalf of the Lenders, in a letter or agreement executed by the Agent
or by facsimile transmission from the Agent.
(b) Neither the Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 17(a) hereof), be deemed to delay, indulge, omit
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in exercising
on the part of the Agent or any Lender, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Agent or any Lender of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Agent or such Lender
would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The section headings used in this Agreement are for
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convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
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successors and assigns of the Pledgors and shall inure to the benefit of the
Agent and the Lenders and their successors and assigns, provided that the
Pledgors may not assign any of their rights or obligations
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under this Agreement without the prior written consent of the Agent and any such
purported assignment shall be null and void.
20. Governing Law; Submission to Jurisdiction; Venue. THIS AGREEMENT AND
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THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
THE PROVISIONS OF THE CREDIT AGREEMENT RELATING TO SUBMISSION TO JURISDICTION
AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS MUTANDIS.
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21. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
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PLEDGOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF THIS PLEDGE AGREEMENT, THE CREDIT DOCUMENTS OR ANY OTHER
AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
22. Amendment and Restatement Without New Conveyance. Notwithstanding any
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language to the contrary contained herein, the amendment and restatement
effected by this Pledge Agreement does not create or cause any new or additional
conveyance of liens or security interests by the Pledgors to the Agent, but
rather amends and restates the terms and conditions governing the existing liens
and security interests granted by the Pledgors to the Agent in the Existing
Pledge Agreement in connection with and as required by the Existing Credit
Agreement. This Pledge Agreement does not terminate or nullify any of the liens
or security interests heretofore created or granted by the Pledgors in favor of
the Agent, and all such existing liens and security interests shall remain in
full force and effect, without interruption in the attachment or perfection of
any such liens and security interests.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have caused this Pledge Agreement to be
duly executed and delivered as of the date first above written.
PLEDGORS: NATIONAL EQUIPMENT SERVICES, INC.,
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a Delaware corporation
NES ACQUISITION CORP.,
a Delaware corporation
NES EAST ACQUISITION CORP.,
a Delaware corporation
NES MICHIGAN ACQUISITION CORP.,
a Delaware corporation
BAT ACQUISITION CORP.,
a Delaware corporation
ALBANY LADDER COMPANY, INC.,
a New York corporation
FALCONITE, INC.
an Illinois corporation
FALCONITE EQUIPMENT, INC.,
an Illinois corporation
M&M PROPERTIES, INC.,
an Alabama corporation
CARL'S MID SOUTH RENT-ALL CENTER
INCORPORATED,
a Tennessee corporation
FALCONITE REBUILD CENTER, INC.,
a Kentucky corporation
FALCONITE AVIATION, INC.,
a Delaware corporation
XXXXXXX & FALCONITE EQUIPMENT CO., INC.,
an Alabama corporation
(Signature Pages Continue)
XXXXXXXXXXX CRANE SERVICE, INC.,
a Massachusetts corporation
REBEL STUDIO RENTALS, INC.,
a California corporation
BARRICADE & LIGHT RENTAL, INC.,
an Arizona corporation
XXXXX-XXXXXXX EQUIPMENT, L.L.C.,
a Louisiana limited liability company,
By: Xxxxxxxxxxx Crane Service, Inc.,
its Sole Member
WELLESLEY CRANE SERVICE CO., INC.,
a Massachusetts corporation
XXXXX & ASSOCIATES, INC.,
a Georgia corporation
NES SHORING ACQUISITION, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------
Title: V.P.
---------------------
(Signature Pages Continue)
PLANK MANAGEMENT, INC.,
a Texas corporation
By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------
Title: V.P.
---------------------
THE PLANK COMPANIES, L.P.,
a Delaware limited partnership
By: Plank Management, Inc.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------
Title: V.P.
------------------------
(Signature Pages Continue)
RICHLITE, INC.,
a Virginia corporation
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------
Title: V.P.
--------------------------
INTERSTATE TRAFFIC CONTROL, INC.,
a West Virginia corporation
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
---------------------------
Title: V.P.
--------------------------
(Signature Pages Continue)
AGENT: FIRST UNION NATIONAL BANK,
-----
as Agent
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
-------------------
Title: VP
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