Exhibit 99.3
COMPOST STOCK PLEDGE AGREEMENT
(COMPOST COMMON STOCK)
Compost Stock Pledge Agreement (Compost Common Stock) Pursuant to CCF Agreement
October 30, 1998
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THIS COMPOST STOCK PLEDGE AGREEMENT ("Agreement") is made, executed and
consummated effectively this 30th day of October, 1998 ("Effective Date"), by
and among COMPOST AMERICA HOLDING COMPANY, INC. ("Compost"), and, LIONHART
GLOBAL APPRECIATION FUND, LTD. ("Lionhart"), LIONHART INVESTMENTS, LTD. ("LHI")
and GLOBAL EARTHFUND PARTNERS, L.L.C. ("GEP") (Lionhart, LHI and GEP are
sometimes collectively referred to in this Agreement as the "Pledgee(s)").
Recitals:
1. Compost is a New Jersey corporation. The principal office of Compost
is located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
2. Miami Recycling and Composting Co., Inc. ("Miami") is a Delaware
corporation. The principal office of Miami is located at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000. Bedminster Seacor Services Miami Corporation
("Bedminster") is a Florida corporation. The principal office of Bedminster is
located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000. Compost is the direct
parent of Miami, owns and controls 80.1% of all issued and outstanding capital
stock of Miami, and controls Miami. Miami is the direct parent of Bedminster,
Bedminster is a direct wholly-owned subsidiary of Miami, and Compost controls
Bedminster (which is an indirect controlled subsidiary of Compost).
3. Lionhart is a British Virgin Islands international business company.
The principal office of Lionhart, in the British Virgin Islands, is located at
c/o Citco B.V.I. Limited, Post Office Box 662, Road Town, Tortola, British
Virgin Islands.
4. LHI is a United Kingdom limited liability company. The principal
office of LHI, in the United Kingdom, is located at 00 Xxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxx XX00 4 RH, England. As of the Effective Date of this
Agreement, LHI is engaged by Lionhart as its investment advisor.
5. GEP is an Indiana limited liability company. The principal office of
GEP in the United States is c/o Xxxx Xxxxxx Drics, Esq., 000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000. As of the Effective Date of this
Mortgage, Lionhart is the direct parent of GEP, and GEP is a direct wholly-owned
subsidiary of Lionhart.
6. On and effective as of October 30, 1998, Compost, Miami, Bedminster,
Lionhart, LHI and GEP are executing, consummating and delivering, or will or are
about to execute, consummate and deliver, an agreement, entitled "Credit,
Capitalization and Financing Agreement" ("CCF Agreement"), which is hereby
incorporated by reference. Except as otherwise defined separately in this
Agreement, and/or except as otherwise indicated by the context in this
Agreement, any terms that are capitalized in this Agreement shall have the same
definition and meaning as is ascribed to such terms in the CCF Agreement (and/or
in any Credit Document(s) or Supplemental Definitive Document(s) (as those terms
are defined under the CCF Agreement)). This Agreement is the same instrument,
agreement and document that is referred to, and as is otherwise defined as, the
Compost Stock Pledge Agreement (Compost Common Stock), under Section 1.1.33 of
the CCF Agreement.
7. Pursuant to the terms and subject to the conditions set forth in the
CCF Agreement, the Credit Documents and the Definitive Supplemental Documents,
Compost, Miami and/or Bedminster have the affirmative duty and obligation, inter
alia, to and for the benefit of Lionhart, LHI and/or GEP, 1) to pay and
discharge timely punctually, completely and fully certain Indebtedness (as that
term is defined under Section 18.01.01 of the CCF Agreement) and 2) to perform
and discharge timely, punctually, completely and fully certain Obligations (as
that term is defined under Section 18.01.02 of the CCF Agreement). For purposes
of this Agreement, the terms "Indebtedness" and "Obligations" shall have the
same meanings and definitions as ascribed respectively to such terms under
Section 18.01.01 and Section 18.01.02 of the CCF Agreement.
8. Compost, 1) for and in consideration of (i) the delivery by
Lionhart, LHI and GEP, to Compost, Miami and Bedminster, of the Credit (as
defined under Section 2.1 of the CCF Agreement) and (ii) the execution, delivery
or consummation of the agreements, promises, covenants and other undertakings by
Lionhart, LHI and/or GEP as otherwise provided under the CCF Agreement, the
Credit Documents and/or the Supplemental Definitive Documents ("Consideration"),
Page 1 of 9 Pages
and 2) as an inducement to Lionhart, LHI and GEP to enter into, agree, execute
and deliver, and otherwise consummate the transactions contemplated under, the
CCF Agreement, the Credit Documents and the Supplemental Definitive Documents,
and, 3) to additionally secure (to and for the benefit of Lionhart, LHI and GEP)
the timely and complete payment of the Indebtedness and the performance and
discharge of the Obligations, by and on the part of Compost, Miami and
Bedminster, under and pursuant the CCF Agreement, the Credit Documents and/or
the Definitive Supplemental Documents, has agreed to execute or deliver (at the
Term Loan Closing on the Closing Date), or cause to be executed and delivered
(on the Term Loan Closing on the Closing Date), to and for the benefit of
Lionhart, LHI and GEP, this Agreement, without the delivery of which Lionhart,
LHI and GEP would not exchange, execute or otherwise deliver the Consideration
to or for the benefit of Compost, Miami and/or Bedminster, and 4) for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged.
NOW, THEREFORE, for good and valuable consideration, the receipt and
legal adequacy of which are hereby acknowledged, and as part of the
consideration of Compost for the Consideration of Lionhart, LHI and GEP, as
otherwise provided under the CCF Agreement, the Credit Documents and the
Definitive Supplemental Documents, Compost hereby promises, covenants, and
represents and warrants to Lionhart, LHI and GEP, and hereby agrees with
Lionhart, LHI and GEP, as follows:
Agreement:
Section 1. Pledge/Security Interest/Collateral. In consideration of and
as an inducement for the Consideration specified in this Agreement, and to
secure the timely, punctual, complete and full payment and discharge of the
Indebtedness and the timely, punctual, complete and full performance and
discharge of the Obligations, by and on the part of Compost, Miami and
Bedminster, under and pursuant to this Agreement, the CCF Agreement, the Credit
Documents and the Definitive Supplemental Documents:
1.01. Pledge. Compost hereby grants, pledges, bargains,
releases, conveys, warrants, sells, assigns, transfers, sets over,
confirms and delivers unto Lionhart, LHI and GEP, and all of their
respective successors and assigns, a security interest in, and hereby
delivers to Lionhart, LHI and GEP to perfect such pledge and security
interest, 600,000 registered (freely tradable) shares of Compost Common
Stock that are represented by Certificate No. CA1370 (which indicates
thereon that Lionhart is the registered owner thereof), and all
amendments, additions, adjustments, modifications, substitutions,
replacements, extensions and additions thereof, including, without
limitation, all cash and non-cash proceeds thereof, and all such
additional shares or securities, or other rights, warrants or options,
as provided or otherwise contemplated under Section 6.02 and/or Section
6.04 of this Agreement ("Pledged Compost Shares" and/or "Collateral").
1.02. Transfer. Compost, in all appropriate books, records and
ledgers of Compost, shall immediately transfer to and shall maintain in
the name of Lionhart, the Pledged Compost Shares, pursuant to which
Lionhart shall serve as custodian and agent for LHI and GEP, of such
Pledged Compost Shares, pursuant to the terms and subject to the
conditions of this Agreement.
1.03. Certificate/Legend. Prior to delivery to of the Pledged
Compost Shares to Lionhart, LHI and GEP, as provided under Section 1.01
of this Agreement, Compost shall place or cause to be placed on each
certificate, that represents any one (1) or more of the
above-referenced Pledged Compost Shares (including the above-referenced
Certificate No. 1370), and such certificate shall bear, the following
legend:
"The securities represented hereby are pledged by Compost America
Holding Company, Inc. ("CAHC"), to Lionhart Global Investments,
Ltd. ("Lionhart"), Lionhart Investments, Ltd. ("LHI"), and Global
EarthFund Partners, Ltd. ("GEP"), pursuant to the terms and
subject to the conditions of an agreement, entitled "Compost
Stock Pledge Agreement (Compost Common Stock)," by and among
CAHC, Lionhart, LHI and GEP, that is dated on and as of October
30, 1998, and pursuant to which Lionhart (for and on behalf of
Lionhart, LHI and GEP) is and shall remain as the registered
holder of these securities, as security and collateral for the
payment in full of certain Indebtedness and the performance in
full of certain Obligations as those terms are defined under such
Compost Stock Pledge Agreement (Compost Common Stock), until such
Indebtedness is paid in full and such Obligations are performed
in full."
Page 2 of 9 Pages
Section 2. Inter-Pledgee Agent. The Pledgees, pursuant to the terms and
subject to the conditions set forth in an agreement, entitled "Inter-Creditor
Agreement," that is dated and was executed by and among the Pledgees, on or
about October 30, 1998, and that is intended to be recorded promptly hereafter
in the Official Records Book or other Public Records of Miami-Dade County,
Florida, and any other appropriate public records as may determined by the
Pledgees, each duly appointed GEP, as the their exclusive agent and power of
attorney ("Agent"), which power is coupled with an interest, for all Pledgees,
with respect to this Agreement, the CCF Agreement, the Credit Agreement and the
Definitive Supplemental Documents, and the exercise of the rights and remedies
of each Pledgee with respect thereto. Pursuant to and as provided under the
Inter-Creditor Agreement, 1) GEP, as Agent for all Pledgees, is authorized and
empowered, in their respective name, place and stead, with full power of
substitution, to exercise and perform from time to time, and without joinder of
or by any Pledgee, any act, power, duty, right or obligation whatsoever that any
Pledgee or the Pledgees (under this Agreement, the CCF Agreement, the Credit
Documents and/or the Definitive Supplemental Documents) may now or hereafter
exercise or perform, and to deal in all respects with Compost, with respect to
the transactions evidenced under this Agreement, the CCF Agreement, the Credit
Documents and/or the Definitive Supplemental Documents; and, 2) Compost and any
third party dealing with the Agent, under this Agreement, the CCF Agreement, the
Credit Documents and/or the Definitive Supplemental Documents, shall have the
right to rely upon the power and authority of the Agent to bind each Pledgee
with respect to the exercise of remedies or the giving of notices or consents
under and pursuant to this Agreement, the CCF Agreement, the Credit Documents
and/or the Definitive Supplemental Documents. Notwithstanding the foregoing, the
Pledgees hereby appoint Lionhart, as its agent and limited power of attorney,
which power is coupled with an interest, for the limited purpose that is set
forth in Section 6 of this Agreement, but with the same effect, actual and
apparent authority, and power as are otherwise granted to the Agent under this
Section 2.
Section 3. Agreement Purpose and Security. This Agreement is executed
and delivered by Compost, to Lionhart, LHI and GEP, pursuant to the terms and
subject to the conditions of the CCF Agreement. The pledge of and security
interest in and to the Pledged Compost Shares, is hereby given by Compost, to
Lionhart, LHI and GEP, to secure the timely, punctual, complete and full payment
and discharge of the Indebtedness and the timely, punctual, complete and full
performance and discharge of the Obligations, by and on the part of Compost,
Miami and Bedminster, under and pursuant to this Agreement, the CCF Agreement,
the Credit Documents and the Definitive Supplemental Documents, including,
without limitation, all such Indebtedness and Obligations that relate to or
arise from the Mortgage Note, and any and all modifications, amendments,
restatements, extensions, renewals, supplements and replacements thereof, as any
of the foregoing may be amended and/or restated from time to time and at any
time, and all reasonable costs and expenses incurred or paid or incurred by
Lionhart, LHI and/or GEP to preserve and protect the Pledged Compost Shares and
to enforce the security interests and pledge of Lionhart, LHI and/or GEP
therein, all of which Compost, Miami and Bedminster have promised and
covenanted, and Compost reaffirms its undertakings, to pay and discharge all
such Indebtedness when due and to perform and discharge all Obligations when due
or required to be performed in accordance with the terms and conditions set
forth in the CCF Agreement, without relief from valuation and appraisement laws
and with reasonable attorneys' fees. The pledge and security interest in the
Pledged Compost Shares shall remain, and shall not be released, unless and until
all Indebtedness is paid in full and all Obligations are performed and
discharged in full, whereupon the Pledgees shall have the affirmative duty, in a
commercial reasonable and prompt manner, to return the Pledged Compost Shares to
Compost and, upon any reasonable request from time to time by Compost, to
execute any documents, instruments or certificates necessary to terminate the
security interest and pledge evidenced by this Agreement.
Section 4. Release/Waiver. Compost hereby and expressly releases and
waives each and every of the following: 1) all rights, privileges and/or claims
under and/or by virtue of any homestead, stay, appraisement or exemption laws
that may now exist or hereinafter be enacted; 2) all rights, privileges and/or
claims to acquire or retain possession, custody or control of the Pledged
Compost Shares, or any part thereof, after any Event of Default under the CCF
Agreement, the Credit Documents (including this Agreement) and/or the Definitive
Supplemental Documents, as otherwise defined under Section 9 of this Agreement;
and, 3) all rights of redemption from the sale of the Pledged Compost Shares, or
any part thereof, under any order or decree of foreclosure or public or private
sale of and with respect to the Pledged Compost Shares, or any part thereof.
Section 5. Recital Paragraphs/Incorporation. The Recital Paragraphs
that are set forth on Pages 1-2 of this Agreement, are hereby made part of this
Agreement, as if set forth in their complete terms under this Section 5.
Page 3 of 9 Pages
Section 6. Voting Rights, Dividends, Warrants and Adjustments. Compost
hereby represents and warrants to Lionhart, LHI and GEP, and hereby agrees,
promises and covenants, as follows:
6.01. Cash Dividends. Until all Indebtedness is paid and
discharged in full and all Obligations are performed and discharged in
full, all cash dividends and other pecuniary amounts received by
Lionhart, as a result of its record ownership of and that are otherwise
attributable to the Pledged Compost Shares, shall be applied by
Lionhart (and LHI and GEP), net of any taxes whatsoever assessed to or
against Lionhart (and/or LHI and/or GEP) for and with respect to any
such cash dividends, to the payment of Principal and Interest and other
charges under the Mortgage Note, pursuant to Section 2 thereof.
6.02. Adjustments. If, and in the event, during the period
that any Indebtedness is not paid and discharged in full or that any
Obligation is not performed and discharged in full, any share dividend,
reclassification, readjustment, or other change is declared or made in
the capital structure of Compost, and that relate to or arise from or
otherwise affect the Pledged Compost Shares, all new, substituted and
additional shares or other securities that are then or thereby issued
by reason of any such share dividend, reclassification, readjustment or
other such change, shall continue to be held by Lionhart (for and on
behalf of itself, LHI and GEP), as additional pledged Collateral and
security (and as part of the Pledged Compost Shares), pursuant to the
terms and subject to the conditions of this Agreement (in the same
manner as if such shares or securities were originally pledged and
delivered under this Agreement upon execution, consummation and
delivery hereof).
6.03. Voting Rights. Until all Indebtedness is paid and
discharged in full and all Obligations are performed and discharged in
full, Lionhart (for and on behalf of itself, LHI and GEP), at its sole
option and election, shall be entitled 1) to vote the Pledged Compost
Shares, on all questions, issues, positions, matters and/or
transactions that are otherwise submitted to the shareholders of
Compost for consideration thereof and/or a vote thereupon, or
otherwise, or 2) to periodically execute and grant one (1) or more
general or limited proxies to Compost, in and pursuant to any such
proxy or proxy forms as are reasonable and usual and customary, as
determined by Lionhart, to vote the Pledged Compost Shares on all
questions, issues, positions, matters and/or transactions that are
otherwise submitted to the shareholders of Compost for consideration
thereof and/or a vote thereupon, or otherwise.
6.04. Warrants/Options/Rights. If, and in the event, during
the period that any Indebtedness is not paid and discharged in full or
that any Obligation is not performed and discharged in full, any
subscription warrants or any other rights, warrants or options shall be
issued in connection with the Pledged Compost Shares, then any and all
such rights, warrants and options shall be held by Lionhart (for
itself, and for and on behalf of LHI and GEP) as additional pledged
Collateral and security and as part of the Pledged Compost Shares, and
if exercised by Compost (and/or Lionhart, LHI and/or GEP), all such new
shares or other securities so acquired by and that are otherwise
attributable to the exercise of any such rights, warrants or options
shall be delivered to and shall be held by Lionhart (for itself, and
for and on behalf of LHI and GEP) as additional pledged Collateral and
security and shall be deemed as part of the Pledged Compost Shares, and
shall be deemed as immediately assigned, pledged, transferred and
delivered to Lionhart, LHI and GEP (and in the name of Lionhart, for
itself, LHI and GEP), in the same manner as is otherwise provided and
contemplated under Section 1 of this Agreement, all of which shall
thereafter be held by Lionhart (for itself and LHI and GEP) as security
and as part of the Pledged Compost Shares pursuant to the terms and
subject to the conditions set forth under this Agreement.
Section 7. General Representations and Warranties. Compost hereby
represents and warrants to Lionhart, LHI and GEP, and hereby promises and
covenants, as follows:
7.01. Collateral.
(a) Title. Compost owns and will maintain full and absolute title
in and to the Pledged Compost Shares, free of all pledges, security
interests, liens and encumbrances other than the pledge and security
interest herein granted to Lionhart, LHI and GEP under this Agreement,
and has good and legal right to subject and otherwise encumber the
Pledged Compost Shares to the pledge and security interest granted by
and under this Agreement. Compost shall defend the Pledged Compost
Shares against all adverse claims. The Pledged Compost Shares are not
and will not be the subject of any financing statement (other than any
filed by Lionhart, LHI and/or GEP) on file in any public office, or
pledged to or subjected to the interest of any Person except as
provided specifically under this Agreement.
Page 4 of 9 Pages
(b) Taxes and Assessments. Compost shall promptly pay, as they
become due and payable, all taxes and assessments imposed upon the
Pledged Compost Shares, if any.
(c) Protection of Pledged Compost Shares. Compost shall not,
without the prior and advance written consent and approval of and by
Lionhart, LHI and GEP (pursuant to which any such consent and approval
may be granted or withheld in the sole and exclusive discretion of
Lionhart, LHI and GEP), sell, assign, transfer, or otherwise dispose of
any of the Pledged Compost Shares, or any of its right, title or
interest therein or in any part thereof, and shall not otherwise do or
permit anything to be done or occur that may impair the Pledged Compost
Shares as security hereunder.
7.02. Financing Statements, Certificates, Etc. Compost shall do
such acts as Lionhart, LHI and/or GEP may reasonably deem necessary or
appropriate to establish and maintain in Lionhart, LHI and/or GEP a
valid security interest and pledge in the Pledged Compost Shares, free
of all other liens, pledges and claims not permitted under this
Agreement, to secure full and prompt payment and discharge of the
Indebtedness and the full and prompt performance and discharge of the
Obligations. Compost authorizes the Agent (for and on behalf of
Lionhart, LHI and/or GEP), at the sole expense of Compost, to sign and
file, without the signature of Compost, such financing and continuation
statements, amendments and supplements thereto, and other documents
which the Agent (for and on behalf of Lionhart, LHI and/or GEP) may
from time to time deem necessary to perfect, preserve and protect their
respective pledges and security interests in the Pledged Compost
Shares. Compost shall from time to time, upon any request by the Agent
(for and on behalf of Lionhart, LHI and/or GEP), deliver to the Agent,
for and on behalf of Lionhart, LHI and/or GEP, certified schedules, in
such form as may be specified by the Agent (for and on behalf of
Lionhart, LHI and/or GEP), identifying the Pledged Compost Shares, or
such part thereof as may be specified by the Agent (for and on behalf
of Lionhart, LHI and/or GEP), together with such supporting documents
and information as the Agent (for and on behalf of Lionhart, LHI and/or
GEP) reasonably may request.
7.03. Taxes, Assessments and Expenses.
(a) Taxes and Assessments. Compost, agrees to pay promptly when
due all taxes, assessments and governmental charges upon or against
Compost, for the property or operations of Compost, Miami and
Bedminster, or otherwise, in each case before the same become
delinquent and before penalties accrue thereon, unless and to the
extent that the same are being contested in good faith by appropriate
proceedings and for which Compost, either directly or through Miami and
Bedminster, has established adequate reserves.
(b) Material Occurrences. Compost shall give written notice to the
Agent (for and on behalf of Lionhart, LHI and GEP) of all material
occurrences and events adversely affecting the Pledged Compost Shares
or the value, security or amount thereof.
(c) Secured Party Expenses. In the event that Compost fails to pay
taxes, assessments, costs and expenses which Compost is required to pay
under this Section 7, or in the event that Compost fails to keep the
Pledged Compost Shares free from other security interests, liens,
pledges, or encumbrances not permitted under the terms of this
Agreement, Lionhart, LHI and/or GEP may make reasonable expenditures
for any and all such purposes. All reasonable costs and expenses of
Lionhart, LHI and/or GEP in retaking, holding, preparing for sale and
selling or otherwise realizing upon any Pledged Compost Shares or
enforcing any provisions hereof in the event of any default by Compost,
including reasonable attorneys' fees, shall constitute part of the
Indebtedness and Obligations that are otherwise secured under this
Agreement by the Pledged Compost Shares, and Compost shall forthwith
reimburse Lionhart, LHI and GEP for any such reasonable payments made
or any such reasonable expenses incurred by Lionhart, LHI and/or GEP.
Section 8. Performance by Secured Party of Debtor's Agreements. Lionhart, LHI
and/or GEP may, but shall have no duty, to perform any agreement, promise or
covenant of Compost hereunder, which Compost shall have failed to perform or
discharge, and Compost shall forthwith reimburse Lionhart, LHI and GEP for any
such reasonable payments made or any such reasonable expenses incurred by
Lionhart, LHI and/or GEP, including reasonable attorneys' fees, and all such
reasonable payments, costs and expenses, including reasonable attorneys' fees,
shall constitute part of the Indebtedness and Obligations that are otherwise
secured under this Agreement by the Pledged Compost Shares.
Page 5 of 9 Pages
Section 9. Event of Default. An "Event of Default," under this
Agreement, is and shall be defined as, and shall mean and include, any "Event of
Default" as that term is defined under Section 18.02 (and as otherwise qualified
under Section 18.02.02) of the CCF Agreement, including, without limitation, any
default, breach, violation, failure and/or omission, by or on the part of
Compost, to pay and discharge, on a timely, punctual, complete and full basis,
the Principal and Interest when the Principal and Interest are or become due and
payable under the Mortgage Note.
Section 10. Remedies Upon Default. Upon the occurrence of an Event of
Default (as defined under Section 9 of this Agreement), Lionhart, LHI and GEP
shall have the right, but not the obligation, in their sole discretion and
option, to exercise all rights and remedies that are set forth and described
under Section 18.04 of the CCF Agreement, and to exercise any one (1) or all of
the following remedies, in addition to any other rights or remedies that
Lionhart, LHI and/or GEP may be entitled to assert and/or claim, at law of in
equity:
10.01. Acceleration-Indebtedness. Lionhart, LHI and GEP may, from
time to time and at any time(s), declare the entire unpaid amount or
portion of any, some or all of the Indebtedness (including, without
limitation, the unpaid amount or portion of all Principal and Interest
under the Mortgage Note), immediately due and payable, without further
notice or demand, or presentment, protest, notice of protest or notice
of dishonor (of which Compost, hereby expressly waives any such notice,
demand, presentment, protest, notice of protest or notice of dishonor),
whereupon all such Indebtedness, as accelerated under this Section
10.01, shall become immediately due and payable in full, and Lionhart,
LHI and GEP shall the right immediately to foreclose upon the lien
created by the Mortgage against the Mortgaged Miami Site (as provided
and otherwise contemplated under the Mortgage), or any part thereof; to
enforce and use lawful self-help or foreclose upon every other security
interest in any and all Collateral as otherwise created or confirmed
under this Agreement, or any part thereof; to enforce, use lawful
self-help or foreclose upon every security interest in any of the
pledged Collateral or any other Collateral under the Security
Agreement, the Compost Stock Pledge Agreement (Miami Common Stock)
and/or the Compost Stock Pledge Agreement (Bedminster Common Stock), or
any part thereof; and/or, to commence or institute any action, suit or
other proceeding which Lionhart, LHI and/or GEP may deem necessary or
proper to protect their respective interests.
10.02. Acceleration-Obligations. Lionhart, LHI and GEP may, from
time to time at any time(s), declare any and all Obligations, that have
not been theretofore performed and discharged, immediately due and
required to be performed and discharged immediately, without further
notice or demand, or presentment, protest, notice of protest or notice
of dishonor (of which Compost hereby expressly waives any such notice,
demand, presentment, protest, notice of protest or notice of dishonor),
whereupon all such Obligations, as accelerated under this Section
10.02, shall become due and immediately required to be performed and
discharged completely, and Lionhart, LHI and GEP shall the right
immediately to foreclose upon the lien created by the Mortgage against
the Mortgaged Miami Site (as provided and otherwise contemplated under
the Mortgage), or any part thereof; to enforce and use lawful self-help
or foreclose upon every other security interest in any and all
Collateral as otherwise created or confirmed under this Agreement, or
any part thereof; to enforce, use lawful self-help or foreclose upon
every security interest in any of the pledged Collateral or any other
Collateral under the Security Agreement, the Compost Stock Pledge
Agreement (Miami Common Stock) and/or the Compost Stock Pledge
Agreement (Bedminster Common Stock), or any part thereof; and/or, to
commence or institute any action, suit or other proceeding which
Lionhart, LHI and/or GEP may deem necessary or proper to protect their
respective interests.
10.03. Other Recourse and Remedies. Lionhart, LHI and GEP each
shall have all the remedies of a creditor and a secured party under the
New Jersey Uniform Commercial Code and all other applicable law, and as
otherwise provided by applicable law, including but not limited to, the
following:
(1) Possession/Sale. Lionhart, LHI and/or GEP shall have the
right, without notice to Compost, and without liability for any
diminution in price that may have occurred, sell all or any amount
or part of the Pledged Compost Shares in such a manner and for
such a price as may be determined by Lionhart, LHI and GEP.
Without limiting any rights or remedies that are otherwise
available to Lionhart, LHI and/or GEP, at any bona fide public
sale, Lionhart, LHI and/or GEP shall have the sole right and
authority to bid for and otherwise purchase any amount or part of
the Pledged Compost Shares. If, and in the event, Lionhart, LHI
and/or GEP do sell any such amount or part of the Pledged Compost
Shares at any such sale (public or private), the proceeds derived
from any such sale, after the payment and discharge of expenses
(including,
Page 6 of 9 Pages
if applicable, reasonable expenses of retaking, holding, preparing
for sale, selling and the like, and reasonable attorneys' fees
that relate to or arise from any such sale), shall be applied or
otherwise credited to the payment of Principal and Interest and
other charges under the Mortgage Note, pursuant to Section 2
thereof.
(2) Cumulative Remedies. All remedies of Lionhart, LHI and/or
GEP shall be cumulative to the fullest extent provided by law. Any
pursuance by Lionhart, LHI and/or GEP of any single judicial or
other remedies shall not xxxxx nor bar resort to other remedies
with respect to the Pledged Compost Shares, and pursuit of certain
remedies with respect to all or some of the Pledged Compost Shares
shall not bar other remedies with respect to the Indebtedness, the
Obligations, or other portions of the Pledged Compost Shares, or
as may otherwise be provided under the CCF Agreement, the Credit
Documents (including the Mortgage Note) and/or the Definitive
Supplemental Documents, and/or under any applicable law. Lionhart,
LHI and GEP may exercise its rights to the Pledged Compost Shares,
or any part thereof, without resorting or regard to other Pledged
Compost Shares or sources of security or reimbursement for the
Indebtedness and/or Obligations (whether under the CCF Agreement,
the Credit Documents the Definitive Supplemental Documents, or
otherwise).
Section 11. Nonwaiver-Expenses, Proceeds of Collateral. No waiver by
Lionhart, LHI and/or GEP of any of its or their respective rights or of any
Event of Default shall be effective unless in writing, and in no event shall it
operate as a waiver of any other of its or their respective rights or any other
Event of Default, nor of the same rights or Event of Default on any future
occasion. Compost shall pay to Lionhart, LHI and GEP, on demand by Lionhart, LHI
and/or GEP, any and all reasonable expenses, including reasonable attorneys'
fees, incurred or paid by Lionhart, LHI and/or GEP in protecting or enforcing
its rights upon or under the Indebtedness, the Obligations, the Pledged Compost
Shares or this Agreement.
Section 12. Legal Authority/Compliance/Miscellaneous. Compost hereby
represents and warrants, and hereby promises, agrees and covenants, as follows:
12.01. General Board Authorization. Compost has all necessary
corporate power and authority, pursuant to the approval by and the duly
adopted resolutions of its Board of Directors, and otherwise, to
execute and deliver this Agreement, and to perform their respective
duties and obligations contemplated and as otherwise provided under
this Agreement, including, without limitation, the granting and
pledging to Lionhart, LHI and GEP of a security interest in and to, and
otherwise pledging, the Pledged Compost Shares.
12.02. No Violations. The execution and delivery of (and the
performance and consummation transactions contemplated under) this
Agreement, will not (i) conflict with or violate the Certificate of
Incorporation or By-Laws of Compost, (ii) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to Compost
or by which its Properties are bound or affected, or (iii) result in
any breach of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the
Properties or assets of Compost, pursuant to any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, insurance
policy or other instrument or obligation to which is a party, or by
which Compost or its Properties are bound or affected.
12.03. No Required Governmental Consents. The execution and
delivery of (and the performance and consummation transactions
contemplated under) this Agreement by Compost, does not and will not,
require any consent, approval, authorization or permit from any
Governmental Authority which has not been obtained.
12.04. Authority of Officers. Compost has good right and lawful
authority, through its designated and officers and representatives who
have signed and delivered this Agreement, for and on behalf of Compost,
to execute, deliver and consummate the transactions contemplated under
this Agreement.
12.05. Enforceability. This Agreement is a legal, valid and
binding obligation of and is enforceable against Compost, in accordance
with the terms of this Agreement, and there is no action or proceeding
at law or in equity, or by or before any court or Governmental
Authority now pending or to the knowledge of Compost threatened or
affecting Compost that may materially and adversely affect Compost.
12.06. Execution by Parties. Any person or party executing this
Agreement in a representative capacity,
Page 7 of 9 Pages
acknowledges, warrants and represents 1) that he or she is an official
representative of the firm or corporation in whose name he or she is
executing this Agreement, 2) that he or she possesses full and complete
authority to bind said firm or corporation to the full and faithful
performance of all conditions, terms, provisions, covenants, warranties
and representations as contained in this Agreement, and 3) that all
other parties are relying on these representations and warranties as a
material inducement to execute, deliver and otherwise consummate the
transactions contemplated under this Agreement, the CCF Agreement, the
Credit Documents and the Definitive Supplemental Documents.
Section 13. Applicable Law, Jurisdiction and Venue. Compost hereby
represents and warrants, and hereby promises, agrees (with Lionhart, LHI and
GEP) and covenants, as follows:
13.01. This Mortgage Note shall be governed by, construed in
accordance with, and shall be enforced under, the laws of the State of
New Jersey, exclusive of its rules relating to conflict of laws.
13.02. Subject to applicable conflict of laws principles, Compost
shall accept venue with respect to all claims, actions or lawsuits that
relate to or arise from this Agreement, in any state court or U.S.
Court of competent jurisdiction that sits in Newark, New Jersey.
Compost hereby, and irrevocably and unconditionally, for itself and its
Properties, submits to the jurisdiction of any such New Jersey court or
U.S. Court sitting in Newark, New Jersey, and any appellate court with
jurisdiction thereover, in any action or proceeding relating to or
arising from this Agreement, the CCF Agreement (exclusive of the
Mortgage), the Credit Documents and/or the Definitive Supplemental
Documents, or for the recognition or enforcement of any judgment, and
Compost hereby, and irrevocably and unconditionally, agrees, promises
and covenants that all such claims in respect of any such action or
proceeding shall be heard, determined and adjudicated in by any such
New Jersey court or, to the extent permitted by applicable law, by any
such U.S. Court. Compost hereby agrees, promises and covenants that a
final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
13.03. Compost hereby, and irrevocably and unconditionally,
waives, to the fullest extent under applicable law, any defense or
objection that it may now or hereafter have 1) to the laying of venue
of any suit, action or proceeding relating to or arising from this
Mortgage Note, the CCF Agreement, the Credit Documents (exclusive of
the Mortgage) and/or the Definitive Supplemental Documents, in any such
New Jersey court or U.S. Court sitting in Newark, New Jersey, or 2) to
the personal jurisdiction and/or preferred and proper venue of any such
New Jersey court or any such U.S. Court in Newark, New Jersey.
Section 14. Captions/Headings. The captions and headings that are set
forth in this Agreement are for the purpose of convenience only and are not
intended to be a part of this Agreement and shall not be deemed to modify,
explain, enlarge or restrict any of the provisions hereof.
Section 15. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any applicable jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provisions in any other
jurisdiction.
Section 16. Binding Obligations. The terms and provisions, and
promises, covenants and undertakings of this Agreement, shall bind and be
enforceable against and upon Compost, and its successors and assigns and other
legal agents and representatives, and shall inure to the benefit of Lionhart,
LHI and GEP, and their respective successors and assigns, transferees, credit
participants, guarantors and endorsees. If, at any time or times, by assignment
or otherwise, Lionhart, LHI and/or GEP transfers any of the Indebtedness or
Obligations, any such transfer shall carry with it Lionhart's, LHI's and GEP's
rights, interests and powers under this Agreement, including all such rights,
interests and powers that relate to or arise from this Agreement and the Pledged
Compost Shares. Lionhart, LHI and GEP, in their sole discretion and at their
sole option, shall have the right to assign this Agreement, as well as the CCF
Agreement, the other Credit Documents and the Definitive Supplemental Documents,
to any successor(s) or assign(s) of Lionhart, LHI and/or GEP.
Section 17. Time of the Essence. Time is hereby declared to be of the
essence of this Agreement, and of every part hereof.
SECTION 18. JURY WAIVER. COMPOST DOES HEREBY KNOWINGLY, VOLUNTARILY,
IRREVOCABLE, UNCONDITIONALLY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY
JURY
Page 8 of 9 Pages
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE CCF AGREEMENT, THE CREDIT DOCUMENTS AND/OR
THE DEFINITIVE SUPPLEMENTAL DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON. THIS
IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL IS A MATERIAL INDUCEMENT FOR
LIONHART, LHI AND/OR GEP TO DELIVER THE CREDIT, AND TO EXECUTE AND DELIVER, AND
OTHERWISE CONSUMMATE THE TRANSACTIONS CONTEMPLATED UNDER, THE CCF AGREEMENT, THE
CREDIT DOCUMENTS AND THE DEFINITIVE SUPPLEMENTAL DOCUMENTS.
Section 19. Counterparts/Facsimile. This Agreement may be executed in
any number of counterparts, and each by fax, e-mail or other digital or
telephonic transmission, and each of which shall be an original, but all of
which together will constitute one and the same instrument.
Section 20. Notices. Any notices by or to Compost, Miami and/or
Bedminster, or by or to Lionhart, LHI and/or GEP, under this Agreement, shall be
given as provided under Section 20.04 of the CCF Agreement.
Section 21. Written Instrument Requirement. This Agreement cannot be
altered, amended, modified or discharged orally and no executory agreement shall
be effective to modify or discharge this Agreement, in whole or in part, unless
it is in writing and signed by the party against whom enforcement of the
modification, alteration, amendment or discharge is sought.
Section 22. Assignment. This Agreement, and any rights hereunder, may
be assigned by Lionhart, LHI and GEP, or any of their respective participants
and/or successors and assigns, at their sole discretion and option. This
Agreement may not be assigned by Compost, and Compost shall not delegate any of
its duties under this Agreement, in whole or in part, without the advance
written consent of Lionhart, LHI and GEP (pursuant to which any such consent may
be granted or withheld in the sole discretion of the Pledgees).
Section 23. Definitions. All capitalized terms that are set forth in
this Agreement, and that are not expressly defined under this Agreement, shall
have the meanings and definitions that are assigned or ascribed to such terms in
the CCF Agreement, the Credit Documents and/or the Definitive Supplemental
Documents.
Section 24. Incorporation of Documents. The CCF Agreement, the Credit
Documents (including the Mortgage, the Mortgage Note, the Compost-Miami
Guaranty, the Security Agreement, the Compost Stock Pledge Agreement (Miami
Common Stock) and the Compost Stock Pledge Agreement (Bedminster Common Stock))
and the Definitive Supplemental Documents, and all other agreements, instruments
or other documents that are referred to in this Agreement, are hereby
incorporated by reference and form a part of this Agreement.
IN WITNESS WHEREOF, Compost, and Lionhart, LHI and GEP, have executed
and delivered this Agreement on and as of this 30th day of October, 1998.
Pledgor/Debtor: COMPOST AMERICA HOLDING COMPANY, INC.
----------------------------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
Pledgees/Secured Parties: LIONHART GLOBAL APPRECIATION FUND, LTD.
----------------------------------------
Xxxxxxxx X. Xxxxx
Director
Page 9 of 9 Pages
LIONHART INVESTMENTS, LTD.
----------------------------------------
Xxxxxxxx X. Xxxxx
Director
GLOBAL EARTHFUND PARTNERS, L.L.C.
----------------------------------------
Xxx X. Xxxxx
President
Page 9 of 9 Pages
