Contract
THIS
INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN
THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT DATED AS OF AUGUST 2, 2006 (AS AMENDED BY THE FIRST
AMENDMENT THERETO DATED AUGUST 23, 2007 AND THE SECOND AMENDMENT THERETO DATED
AS OF AUGUST 23, 2008, THE "SUBORDINATION
AGREEMENT")
AMONG
LAMINAR DIRECT CAPITAL, L.L.C. (AS SUCCESSOR TO LAMINAR DIRECT CAPITAL L.P.)
L.P., PAC-VAN, INC. (THE "COMPANY")
AND
LASALLE BANK NATIONAL ASSOCIATION (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS,
THE
"SENIOR
AGENT"),
TO
THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANY PURSUANT TO THAT
CERTAIN AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 23, 2007 AMONG
THE COMPANY, THE SENIOR AGENT AND THE SENIOR LENDERS FROM TIME TO TIME PARTY
THERETO (THE "LOAN
AGREEMENT"),
AND
THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT) AS SUCH LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS MAY BE AMENDED, RESTATED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE
INDEBTEDNESS THEREUNDER AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND
EACH
HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO
BE
BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
AMENDED
AND RESTATED
This
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of October 1 ,
2008
(the "Pledge
Agreement")
is
executed by GFN
NORTH AMERICA CORP.,
a
Delaware corporation (the "Assignor"),
to
and for the benefit of LAMINAR
DIRECT CAPITAL, L.L.C.,
a
Delaware limited liability company, as the collateral agent (the "Agent")
for
all the Lenders party to the Investment Agreement (as hereafter defined).
Capitalized terms used but not defined herein shall have the meanings assigned
in the Investment Agreement.
R
E C I T
A L S:
A. The
Lenders have made certain financial accommodations to Pac-Van, Inc., an Indiana
corporation (the "Borrower"),
arising under and pursuant to that certain Investment Agreement made and entered
into as of August 2, 2006, among the Borrower (as successor in interest to
PVI
Acquisition Corporation, an Indiana corporation), Mobile Office Acquisition
Corp., a Delaware corporation ("MOAC"),
the
Lenders from time to time party thereto and the Agent (as successor to Laminar
Direct Capital L.P.) (as amended by the First Amendment to Investment Agreement
and Waiver dated as of August 23, 2007 and the Second Amendment to Investment
Agreement dated as of August 23, 2008, the "Original
Investment Agreement")
and as
evidenced by the Notes.
B. In
connection with the transactions contemplated by the Original Investment
Agreement, and as a condition precedent to the effectiveness of the Original
Investment Agreement and the obligations of the Lenders to make financial
accommodations, to the Borrower thereunder, the Lenders required that MOAC,
which as of the date thereof was the sole shareholder of the Borrower, (i)
execute and deliver to the Agent, for the ratable benefit of the Lenders, that
certain Continuing Unconditional Guaranty dated as of August 2, 2006 (the
"Original
Subdebt Parent Guaranty")
and
(ii) enter into that certain Pledge Agreement dated as of August 2, 2006, for
the ratable benefit of the Lenders and the affiliates of the Lenders
(collectively, the "Affiliates"),
in
order to secure the obligations and performance of MOAC under the Original
Subdebt Parent Guaranty and of the Borrower under the Original Investment
Agreement and the Notes.
C. Pursuant
to the Parent Merger Agreement, MOAC has agreed to consummate a merger (the
"Parent
Merger")
with
the Assignor in which the Assignor will be the surviving corporation and as
a
result of which the Assignor shall (i) assume all of the obligations and
liabilities of MOAC, including becoming a party to and assuming all of the
obligations of MOAC under the Original Subdebt Parent Pledge Agreement and
the
other Loan Documents and (ii) acquire of the assets of MOAC, including all
of
the issued and outstanding Capital Stock of the Borrower.
D. In
connection with the transactions contemplated by the Parent Merger Agreement,
(i) the parties to the Original Investment Agreement have agreed to amend and
restate the Original Investment Agreement in the form of that certain Amended
and Restated Investment Agreement dated as of the date hereof by and among
the
Borrower, the Guarantor, the Lenders from time to time party thereto and the
Agent (as from time to time amended, modified, extended, renewed, refinanced,
or
restated, the "Investment
Agreement")
and
(ii) the Lenders have required the Assignor to amend and restate the Original
Subdebt Parent Guaranty in the form of that certain Amended and Restated
Continuing Unconditional Guaranty dated as of the date hereof (as from time
to
time amended, modified, extended, renewed, refinanced, or restated, the
"Subdebt
Parent Guaranty").
E. In
connection with the transactions contemplated by the Parent Merger Agreement,
and as a condition to the Agent's and the Lenders' consent to the Parent Merger,
entering into the Investment Agreement and continued the extension of credit
by
the Lenders to the Borrower under the Investment Agreement and the Notes, the
Lenders require that the Assignor affirm its obligations under the Original
Pledge Agreement to secure, for the ratable benefit of the Lenders and the
Affiliates, the obligations and performance of the Assignor under the Subdebt
Parent Guaranty and of the Borrower under the Investment Agreement and
the Notes,
and in connection therewith the parties wish to fully amend and restate the
Original Subdebt Parent Pledge Agreement in the form of this Pledge
Agreement.
F. This
Pledge Agreement is given in replacement of and in substitution for the Original
Subdebt Parent Pledge Agreement.
NOW,
THEREFORE, for and in consideration of the foregoing premises, which are hereby
incorporated herein as true, and the mutual promises and agreements contained
herein, the Assignor and the Agent hereby agree as follows:
A
G R E E
M E N T S:
1. PLEDGE
AND GRANT OF SECURITY INTEREST.
To
secure the Secured Obligations, the Assignor hereby assigns and grants to the
Agent, for its own benefit as agent for the Lenders and the benefit of the
Lenders, as a secured party and a secured creditor under the Uniform Commercial
Code as enacted in, and in effect from time to time in, the State of New York
(the "UCC"),
a
continuing security interest in, and a right of set off against, any and all
right, title and interest of the Assignor in and to all shares of stock and
other equity securities of Borrower now or hereinafter owned by Assignor along
with all substitutions or replacements thereof, all additions to, income,
interest and dividends thereon and all proceeds thereof (collectively, the
"Pledged
Collateral").
2. OBLIGATIONS.
The
obligations secured by this Pledge Agreement (the "Secured
Obligations")
are
(i) all
of
the Subdebt Obligations and
(ii)
all costs and expenses incurred in connection with enforcement and collection
of
the Subdebt Obligations, including reasonable attorneys' fees.
2
3. AGREEMENTS
OF PARTIES.
As long
as any Secured Obligations remain outstanding, the Assignor hereby agrees with
the Agent as follows:
(a) The
Agent
shall have full and irrevocable right, power and authority to (i) collect,
withdraw or receipt for all amounts due or to become due and payable upon or
out
of the Pledged Collateral, to execute any withdrawal receipts respecting the
Pledged Collateral, and to endorse the name of the Assignor on any or all
treasury bills or commercial paper given in payment thereof, and (ii) at
the Agent's discretion, take any other action, including, without limitation,
the transfer of the Pledged Collateral into the Agent's own name or the name
of
the Agent's nominee, which the Agent may deem necessary or appropriate to
preserve or protect its and the Lenders' interest in the Pledged
Collateral.
(b) The
Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral and in protecting any rights with respect
to the Pledged Collateral against prior parties, if the Agent takes such action
for that purpose as the Assignor shall request in writing, but failure of the
Agent to comply with any such request shall not of itself be deemed a failure
to
exercise reasonable care, provided, however, that in any event the Agent's
responsibility for the safekeeping of the Pledged Collateral shall not extend
to
matters beyond the control of the Agent, including, without limitation, acts
of
God, war, insurrection, riot, governmental actions or acts of any corporate
or
other depository.
4. REPRESENTATIONS
AND WARRANTIES.
The
Assignor further represents, warrants and agrees:
(a) The
shares of the Capital Stock of the Borrower constituting Pledged Collateral
are
duly authorized and validly issued, are fully paid and non-assessable and are
not subject to the preemptive rights of any Person. The Assignor is the owner
of
the Pledged Collateral and grants the security interest herein in consideration
of the extension of credit to the Borrower by the Lenders.
(b) The
Pledged Collateral is genuine and in all respects what it purports to
be.
(c) The
Assignor is a corporation duly
organized, existing and in good standing under the laws of the State of
Delaware, with full and adequate power to carry on and conduct its business
as
presently conducted, and is duly licensed or qualified in all foreign
jurisdictions wherein the nature of its activities require such qualification
or
licensing.
(d) The
Assignor's state issued organizational identification number is 4570538. The
exact legal name of the Assignor is as set forth in the preamble of this
Agreement, and the Assignor currently does not conduct, nor has it during the
last five (5) years conducted, business under any other name or trade name.
The
Assignor will not change its name, its organizational identification number,
if
it has one, its type of organization, its jurisdiction of organization or other
legal structure.
(e) The
Assignor has full power and authority to enter into this Pledge Agreement and
no
other consents of any other persons are required to be obtained in connection
with the execution, delivery, performance, validity or enforceability of this
Pledge Agreement.
(f) All
necessary and appropriate action has been taken on the part of the Assignor
to
authorize the execution and delivery of this Pledge Agreement. This Pledge
Agreement is a valid and binding agreement and contract of the Assignor in
accordance with its terms. No basis presently exists for any claim against
either the Agent or any Lender under this Pledge Agreement or with respect
to
the enforcement thereof, and this Pledge Agreement is subject to no defenses
of
any kind.
3
(g) The
execution, delivery and performance by the Assignor of this Pledge Agreement
and
any other documents or instruments to be executed and delivered by the Assignor
in connection therewith is valid, binding and enforceable against the Assignor,
and shall not: (i) violate or contravene the articles of incorporation or
bylaws or any existing law or regulation or any order, writ, injunction or
decree of any court or governmental authority, or (ii) conflict with, be
inconsistent with, or result in any breach or default of any of the terms,
covenants, conditions, or provisions of any indenture, mortgage, deed of trust,
instrument, document, agreement or contract of any kind to which the Assignor
is
a party, or by which the Assignor or any of its property
or assets may be bound, and, except for as required by the Loan Documents,
will
not result in the creation or imposition of any security interest in any
properties pursuant to the provisions of any such mortgage, indenture, contract
or other agreement.
(h) The
nature and transaction of the business and operations of the Assignor, and
the
use of its properties
and assets will not materially violate or conflict with any applicable law,
statute, ordinance, rule, regulation or order of any kind.
(i) No
condition, circumstance, document, restriction, litigation or proceeding (or
to
the best knowledge of Assignor, threatened litigation or proceeding or basis
therefor) exists which could adversely affect the validity or priority of the
liens and security interests granted the Agent, for its own benefit and for
the
ratable benefit of the Lenders, hereunder, which could materially adversely
affect the ability of the Assignor to perform the obligations under this Pledge
Agreement, which would constitute a default hereunder or thereunder or which
would constitute such a default with the giving of notice or lapse of time
or
both.
(j) Upon
delivery of the duly executed Pledge Agreement, the Agent, for its own benefit
and as agent for the Lenders and their Affiliates, shall have a valid lien
and
security interest in the Pledged Collateral, free and clear of all other, and
subject to no pledges, hypothecation, mortgages, security interest, charges
or
other encumbrances, except in favor of the Agent, for its own benefit and as
agent for the Lenders and their Affiliates and as otherwise permitted by the
Investment Agreement.
(k) In
case
of failure by the Assignor to pay any fees, assessments, charges or taxes
arising with respect to the Collateral, the Agent shall have the right, but
shall not be obligated, to effect such insurance or pay such fees, assessments,
charges or taxes as the case may be, and, in that event, the cost thereof shall
be payable by the Assignor to the Agent immediately upon demand, together with
interest at the per annum rate of two percent plus the Prime Rate (as
hereinafter defined), from the date of disbursement by the Agent to the date
of
payment by the Assignor. As used herein, "Prime Rate" shall mean the floating
per annum rate of interest which at any time, and from time to time, shall
be
most recently announced by LaSalle National Bank as its Prime Rate, which is
not
intended to be the lowest or most favorable rate of interest at any one time.
The effective date of any change in the Prime Rate shall for purposes hereof
be
the date the Prime Rate is changed by the LaSalle National Bank (or any
applicable successor thereto). The Agent shall not be obligated to give notice
of any change in the Prime Rate. The Prime Rate shall be computed on the basis
of a year consisting of 360 days and shall be paid for the actual number of
days
elapsed.
4
5. COVENANTS.
Until
the Secured Obligations have been satisfied and discharged in full, the Assignor
covenants to and agrees with the Agent as follows:
(a) The
Assignor shall not (i) sell, assign, deliver, convey or otherwise dispose of
or
transfer, or create, grant, incur or permit to exist any pledge, mortgage,
lien,
security interest, charge or other encumbrance whatsoever (except in favor
of
the Agent, for its own benefit and for the ratable benefit of the Lenders and
their Affiliates or as otherwise permitted under the Investment Agreement)
in or
with respect to the Collateral or any interest therein, or (ii) not make or
consent to any amendment or other modification or waiver with respect to any
of
the Pledged Collateral of Debtor or enter into any agreement or allow to exist
any restriction with respect to any of the Pledged Collateral of Debtor other
than pursuant hereto or as may be permitted under the Investment
Agreement
(b) If,
at
any time hereafter, the Assignor receives or is entitled to receive into its
possession any payments, checks, instruments, chattel paper, dividends on
account of or in respect of the Collateral, or any other collateral or proceeds
thereof, such Assignor shall accept such Collateral as the Agent's agent, in
trust for the Agent without commingling such Collateral with any other property
of the Assignor and except as otherwise permitted by the Investment Agreement
shall, upon receipt, immediately deliver such Collateral to the Agent in the
exact form so received, with any necessary endorsement of the Assignor or stock
powers executed by the Assignor in blank.
(c) The
Assignor will, at all times and from time to time, defend the Collateral against
any and all claims of any person or party whose claims are adverse to the
claims, rights or interest of the Agent, and the Assignor shall indemnify and
hold the Agent and the Lenders harmless from any and all such adverse claims.
The Assignor shall bear all risk of loss, damage and diminution in value with
respect to the Collateral, and the Assignor agrees that the Agent shall have
no
liability or obligation to the Assignor with respect to, and is hereby released
by the Assignor from any of, the foregoing.
(d) At
any
time and from time to time after the occurrence of an Event of Default (as
hereinafter defined) or a default under any of the Secured Obligations which
is
continuing uncured and unwaived, the Assignor shall, upon request of the Agent,
execute and deliver to the Agent any proxies, stock powers or assignments with
respect to the Collateral or endorse any instruments or chattel paper with
respect to the Collateral as so requested.
(e) The
Assignor hereby (i) appoints the Agent as its proxy and attorney-in-fact,
(ii) authorizes the Agent to take any action for and on behalf of the
Assignor which is required of the Assignor hereunder, and
(iii) acknowledges that the constitution and appointment of such proxy and
attorney-in-fact are coupled with an interest and are irrevocable.
(f) The
Assignor will promptly execute and deliver at its expense all further
instruments and documents and take all further action that may be necessary
and
desirable or that the Agent may reasonably request in order to (i) perfect
and
protect the security interest created hereby in the Pledged Collateral of
Assignor (including, without limitation, any and all action necessary to satisfy
the Agent that the Agent has obtained a perfected security interest in all
Pledged Collateral); (ii) enable the Agent to exercise and enforce its rights
and remedies hereunder in respect of the Pledged Collateral; and (iii) otherwise
effect the purposes of this Pledge Agreement, including, without limitation
and
if requested by the Agent, delivering to the Agent irrevocable proxies in
respect of the Pledged Collateral.
5
6. EVENTS
OF DEFAULT.
The
Assignor shall be in default under this Pledge Agreement upon the occurrence
of
any one or more of the following events or conditions (an "Event
of Default"):
(a) nonpayment
of any of the Secured Obligations when due, whether by acceleration or otherwise
and such nonpayment continues beyond any applicable grace period;
(b) the
Assignor shall default in the performance or fail to perform any promise,
covenant or agreement to be performed by the Assignor hereunder or under any
other agreement now existing or hereafter entered into between the Assignor
and
the Agent, or the Borrower shall default in the performance or fail to perform
any promise, covenant or agreement to be performed by the Borrower under any
other agreement now existing or hereafter entered into between the Borrower
and
the Agent or any or the Lenders;
(c) any
misrepresentation or breach of any warranty by the Assignor in this Pledge
Agreement, in connection with the Collateral or in any other agreement entered
into between the Assignor and the Agent, or
by the
Borrower in the Investment Agreement;
(d) the
dissolution of the Assignor or
the
Borrower;
(e) the
Assignor or the Borrower shall make an assignment for the benefit of creditors,
fail to pay, or admit in writing its inability to pay its debts as they mature;
or a trustee for any substantial part of the assets of the Assignor or the
Borrower is applied for or appointed,
and
in
the case of such trustee being appointed in a proceeding brought against the
Assignor or the Borrower, (i) such party, by any action or failure to act,
indicates its approval of, consent to or acquiescence therein, or (ii) an
order shall be entered approving the petition in such proceedings and such
order
is not vacated, stayed on appeal or otherwise shall not have ceased to continue
in effect within thirty (30) days after the entry thereof;
(f) any
proceeding shall be commenced by or against the Assignor or the Borrower under
any bankruptcy, receivership, insolvency, reorganization, readjustment of debt,
dissolution or liquidation law or statute of the United States, any state or
any
foreign jurisdiction,
and
in
the case of any such proceeding being instituted against the Assignor or the
Borrower, (i) such party, by any action or failure to act indicates its
approval of, consent to or acquiescence therein, or (ii) an order shall be
entered approving the petition in such proceedings and such order is not
vacated, stayed on appeal or otherwise shall not have ceased to continue in
effect within thirty (30) days after the entry thereof;
(g) the
entry
of any judgment, levy, attachment, garnishment or other process against the
Assignor or the Borrower, or the creation or filing of any lien or encumbrance
upon the Collateral or the making of any levy, judicial seizure, or attachment
thereof or thereon;
(h) the
failure of the Assignor to do any act necessary to preserve and maintain the
value and collectability of any of the Collateral; or
(i) the
Agent
in good xxxxx xxxxx itself and/or the Lenders insecure.
6
7. RIGHTS
AND REMEDIES OF ADMINSTRATIVE
AGENT
UPON
DEFAULT.
The
rights and remedies provided herein and in any other agreements between the
Assignor and the Agent are cumulative and are in addition to and not exclusive
of the rights and remedies of a secured party under UCC and any other rights
or
remedies provided by applicable law. Upon the happening or occurrence of an
Event of Default, and at any time thereafter and from time to time, the Agent,
for the ratable benefit of the Lenders and their Affiliates, shall have all
of
the rights and remedies of a secured party under the UCC, as well as the
following rights and remedies:
(a) The
Agent
may exercise any or all voting rights as to any or all of the
Collateral.
(b) The
Agent
may collect any and all money due or to become due and enforce in the Assignor's
name all rights with respect to the Collateral.
(c) The
Agent
may take immediate possession of the Collateral.
(d) Without
demand, notice or advertisement, all of which are hereby expressly waived to
the
extent permitted by applicable law, the Agent may sell, pledge, transfer or
otherwise dispose of, or enter into an agreement with respect to the foregoing,
or otherwise realize on any of the Collateral, or any part thereof, at any
broker's board or on any exchange or at public or private sale or sales, held
at
such place or places in the City of Indianapolis or otherwise, and at such
time
or times within ordinary business hours, for a purchase price or prices in
cash
or, without assuming any credit risk or thereby discharging the Secured
Obligations to the extent of said purchase price until paid in cash and
reserving the right to resell the Collateral upon the failure of said purchaser
to so pay the purchase price therefor, upon credit or future delivery, and
upon
such other terms and conditions as the Agent deems satisfactory, and, if
required by law, as set forth in any applicable notice. The Agent shall not
be
obligated to make any such sale pursuant to any such applicable notice required
by law. The Agent may, without notice or publication, adjourn any such 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 maybe made at any time or place to
which
the same may be so adjourned. The Agent, for its own account, may purchase
any
or all of the Collateral at any public sale and, in lieu of payment of the
purchase price therefor, may set off or apply the purchase price against the
Secured Obligations. The Agent is authorized, at any sale, if it deems it
advisable so to do, to restrict the prospective bidders or purchasers to
financially reputable persons 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 the Collateral. Upon any such sale, the Agent
shall have the right to deliver, assign, and transfer to the purchaser thereof,
including the Agent, that portion of the Collateral so sold. Each purchaser,
including the Agent, at any sale shall hold the property sold absolutely free
from any claim or right of whatsoever kind, including any equity or right of
redemption of the Assignor, and the Assignor hereby specifically waives and
releases all rights of redemption, stay or appraisal which it has or may have
under any rule or law or statute now existing or hereafter adopted. The Agent,
however, instead of exercising the power of disposition herein conferred upon
it, may proceed by a suit or suits at law or in equity to foreclose the pledge
and sell the Collateral, or any portion thereof, under a judgment or decree
of a
court or courts of competent jurisdiction. After deducting from the proceeds
of
the foregoing sale or other disposition of said Collateral, all expenses
incurred by the Agent in connection therewith (including reasonable attorneys
fees), the Agent shall apply such proceeds towards the satisfaction of the
Secured Obligations, in such order of application as Agent may, from time to
time elect, and shall account to the Assignor for any surplus of such
proceeds.
7
8. NO
DUTY CONCERNING COLLECTION ON COLLATERAL.
The
Agent shall not be liable for its failure to give notice to the Assignor of
a
default under this Pledge Agreement or under any other agreement between the
Assignor and the Agent. The Agent shall not be liable for its failure to use
diligence to collect any amount payable in respect to the Collateral, but shall
be liable only to account to the Assignor for what the Agent may actually
collect or receive thereon.
9. FURTHER
ASSURANCES.
The
Assignor hereby irrevocably authorizes the Agent at any time and from time
to
time to file in any jurisdiction any initial UCC financing statements and/or
amendments thereto naming the Agent, as agent, as Secured Party, and the
Assignor, as Debtor, that (a) describe the Collateral, and (b) contain
any other information required by part 5 of Article 9 of the UCC for the
sufficiency or filing office acceptance of any financing statement or amendment,
and which shall evidence the Agent's perfection of a security interest on the
ratable behalf of the Lenders in such Collateral as security for the Secured
Obligations. The Assignor, upon demand, shall furnish to the Agent such further
information, execute and deliver such other documents and do all such other
acts
and things as the Agent may at any time, or from time to time, reasonably
request as being necessary or appropriate to establish and maintain a perfected
first security interest in the Collateral or to otherwise evidence, document
or
conclude the transactions contemplated hereby. The Assignor shall pay all costs
and expenses of filing such financing statements, of all searches of records,
wherever filing or recording or searching of records is deemed by the Agent
to
be necessary and desirable, or otherwise incurred by the Agent or its agents
in
carrying out the provisions of this Assignment. A photographic, carbon or other
reproduction of this Assignment shall be sufficient as a financing
statement.
10. ASCERTAINING
MATURITIES, CALLS, ETC.
Without
limiting the foregoing, it is specifically understood and agreed that the Agent
shall have no responsibility for ascertaining any maturities, calls,
conversations, exchanges, offers, tenders, or similar matters relating to any
of
the Collateral or for informing the Assignor with respect to any of such matters
(irrespective of whether the Agent actually has, or may be deemed to have,
knowledge thereof). The foregoing provisions of this section shall be fully
applicable to all securities or similar property held in pledge hereunder,
irrespective of whether the Agent may have exercised any right to have such
securities or similar property registered in its name or in the name of a
nominee.
11. WAIVER
OF DEFENSES.
No
renewal or extension of the time of payment of the Secured Obligations; no
release or surrender of, or failure to perfect or enforce any security interest
for the Secured Obligations; no release of any person primarily or secondarily
liable on the Secured Obligations (including any maker, endorser, or guarantor);
no delay in enforcement of payment of the Secured Obligations; and no delay
or
omission in exercising any right or power with respect of the Secured
Obligations or any security agreement securing the Secured Obligations shall
affect the rights of the Agent in the Collateral. The Assignor hereby waives
presentment, protest, demand, notice of dishonor or default, notice of any
loans
made, extensions granted, or other action taken in reliance hereon and all
demands and notices of any kind in connection with the Secured
Obligations.
12. WAIVER
OF ASSIGNOR'S SUBROGATION RIGHTS.
In case
of any bankruptcy, reorganization, debt arrangement or other proceeding under
any bankruptcy or insolvency law, or any dissolution, liquidation or
receivership proceeding is instituted by or against the Borrower or the
Assignor, all Secured Obligations then existing shall, without notice to anyone,
immediately become due or accrued and be payable, jointly and severally, from
the Assignor. If bankruptcy or reorganization proceedings at any time are
instituted by or against the Borrower under the United States Bankruptcy Code,
the Assignor hereby: (a) expressly and irrevocably waives, to the fullest
extent possible, on behalf of himself and his heirs and administrators
(including any surety) and any other person, any and all rights at law or in
equity to subrogation, to reimbursement, to exoneration, to contribution, to
indemnification, to set off or to any other rights that could accrue to a surety
against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, to a holder or transferee
against a maker, or to the holder of a claim against any person, and which
the
Assignor may have or hereafter acquire against any person in connection with
or
as a result of the Assignor's execution, delivery and/or performance of this
Pledge Agreement, or any other documents to which the Assignor is a party or
otherwise; (b) expressly and irrevocably waives any "claim" (as such term
is defined in the United States Bankruptcy Code) of any kind against the
Borrower, and further agrees that he shall not have or assert any such rights
against any person (including any surety), either directly or as an attempted
set off to any action commenced against the Assignor by the Agent, the Lenders
or any other person; and (c) acknowledges and agrees that (i) this
waiver is intended to benefit the Agent and the Lenders and shall not limit
or
otherwise effect the Assignor's liability hereunder or the enforceability of
this Pledge Agreement, (ii) the Borrower and its successors and assigns and
the Lenders and their successors and assigns are intended third party
beneficiaries of this waiver, and (iii) the agreements set forth in this
section and the Agent's and the Lenders' rights under this section shall survive
payment in full of the Secured Obligations.
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13. WAIVER
BY AGENT OR LENDER.
No
course of dealing between the Assignor and the Agent or any Lender, nor any
failure to exercise, nor any delay in exercising any right, remedy, power or
privilege of the Agent or any Lender hereunder, under the Notes or under any
other agreement entered into between the Assignor and the Agent or any Lender,
shall operate as a waiver thereof. No waiver by the Agent or any Lender of
any
Event of Default or any right or remedy hereunder, under the Investment
Agreement or
under
any document or agreement shall constitute a waiver of any other event of
default, right or remedy of the Agent or such Lender, nor of the same event
of
default, right or remedy on a future occasion.
14. GOVERNING
LAW; SEVERABILITY.
This
Pledge Agreement shall be governed by and construed in accordance with the
laws
of the State of New York. Wherever possible each provision of this Pledge
Agreement shall be interpreted in such manner as to be effective and valid
under
applicable law, but if any provision of this Pledge Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective
to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Pledge
Agreement.
15. SUCCESSORS
AND ASSIGNS.
This
Pledge Agreement and all rights and liabilities hereunder and in and to any
and
all Collateral shall inure to the benefit of the Agent, for its own benefit
and
for the ratable benefit of the Lenders, and their successors and assigns, and
shall be binding on the Assignor, its successors
and assigns.
16. NOTICE.
Any
notice of any sale, lease, other disposition, or other intended action by the
Agent shall be deemed reasonable if in writing, addressed to the Assignor at
the
address set forth above, or any other address designated in a written notice
by
the Assignor previously received by the Agent and deposited, first class postage
prepaid, in the United States mails five (5) days in advance of the intended
disposition or other intended action, provided, however, that the foregoing
shall not preclude the fact that failure to give such notice or notice by other
means may be reasonable under the particular circumstances
involved.
17. DURATION
AND EFFECT.
This
Pledge Agreement shall remain and continue in full force and effect
(notwithstanding, without limitation, the dissolution of the Assignor or the
Borrower) from the date hereof until all of the Secured Obligations have been
fully and completely paid, satisfied and discharged. Thereupon, this Pledge
Agreement shall terminate and the Agent shall release any Collateral still
held
by it which has not been sold or otherwise disposed of in accordance with
Section 7 hereof and applied toward the satisfaction of the Secured Obligations
hereunder, and the Agent shall, unless otherwise required to deliver such
Collateral to the Senior Agent in accordance with the terms of the Intercreditor
Agreement, deliver any such Collateral to the Assignor, together with any
necessary stock powers or assignment executed by the Agent in blank, at the
Assignor's expense. The Assignor acknowledges that this Pledge Agreement is
and
shall be effective upon execution by the Assignor and delivery to and acceptance
hereof by the Agent, and it shall not be necessary for the Agent to execute
any
acceptance hereof or otherwise to signify or express its acceptance hereof
to
the Assignor.
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18. CONTROL
COLLATERAL HELD BY CONTROL AGENT.
Notwithstanding any provision to the contrary herein, any Collateral that
constitutes Control Collateral (as defined in the Intercreditor Agreement)
that
is held by the Agent, for the benefit of the Lenders, hereunder shall be deemed
to be held by the Control Agent (as defined in the Intercreditor Agreement)
in
accordance with the Intercreditor Agreement.
19. INTERCREDITOR
PROVISION.
Notwithstanding anything herein to the contrary, the lien and security interest
granted to the Agent pursuant to this Pledge Agreement and the exercise of
any
right or remedy by the Agent hereunder are subject to the Intercreditor
Agreement, as the same may be amended, supplemented, modified or replaced from
time to time. In the event of any conflict between the terms of this Pledge
Agreement and the Intercreditor Agreement, the terms of the Intercreditor
Agreement shall govern.
10
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
| ASSIGNOR: | ||
|
GFN
NORTH AMERICA CORP.,
a
Delaware corporation
|
||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | |
| Title: | Chief Operating Officer | |
| AGENT: | ||
|
LAMINAR
DIRECT CAPITAL L.L.C.,
in
its capacity as Collateral Agent
|
||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx | |
| Title: | Authorized Secretary | |
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