Exhibit 10.3.3
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made and entered
into as of February 11, 2002 by MOBILE MINI, INC., a Delaware corporation,
MOBILE MINI I, INC., an Arizona corporation, MOBILE MINI HOLDINGS, INC., a
Delaware corporation, DELIVERY DESIGN SYSTEMS, INC., an Arizona corporation,
MOBILE MINI, LLC, a Delaware limited liability company, MOBILE MINI, LLC, a
California limited liability company, MOBILE MINI OF OHIO, LLC, a Delaware
limited liability company, and MOBILE MINI TEXAS LIMITED PARTNERSHIP, LLP, a
Texas limited liability partnership (collectively, the "Pledgors", and each a
"Pledgor") in favor of FLEET CAPITAL CORPORATION, a Rhode Island corporation
with an office at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx
00000, for itself and as agent (the "Agent") for the financial institutions and
their successors and assigns (the "Lenders") which are or may hereafter become
parties to the Loan Agreement (as defined below).
R E C I T A L S
WHEREAS, each Pledgor listed on Schedule I hereto is the owner
of the outstanding shares of stock or other equity interests (the "Pledged
Shares") set forth on Schedule I hereto, of each of the subsidiaries of such
Pledgor listed on Schedule I hereto (the "Issuers"); and
WHEREAS, each Pledgor may from time to time enter into certain
lease and rental agreements with various customers (collectively, the "Lessees")
whereby such Pledgor leases various types of storage containers or trailers to
such Lessees (collectively, the "Rental Agreements"); and
WHEREAS, the Borrower desires to obtain a revolving credit
facility from the Lenders for the purposes described in the Loan and Security
Agreement, dated as of February 11, 2002, among the Borrower, the Agent, and the
Lenders (as amended or otherwise modified from time to time, the "Loan
Agreement"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Loan Agreement; and
WHEREAS, the Agent and the Lenders have required, as a
condition to their entering into the Loan Agreement, that each Pledgor (i)
pledge to the Agent, and grant to the Agent a security interest in, the Pledged
Collateral (defined below) and (ii) execute and deliver this Agreement in order
to secure the payment and performance by the Borrower of the Obligations.
NOW THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Loans to the Borrower and participate in Letters
of Credit, each Pledgor hereby agrees with the Agent for its benefit and the
ratable benefit of the Lenders as follows:
A G R E E M E N T
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1. PLEDGE. Each Pledgor hereby pledges to the
Agent, and grants to the Agent a continuing first priority and perfected
security interest in, the following (the "Pledged Collateral"):
(a) the Pledged Shares and the
certificates representing the Pledged Shares, and all products and proceeds of
any of the Pledged Shares including, without limitation, all dividends, cash,
instruments, subscriptions, warrants and other rights and options and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(b) all additional shares of stock of,
or equity interest in, any of the Subsidiaries of such Pledgor from time to time
acquired by such Pledgor in any manner, and the certificates representing such
additional shares (any such additional shares shall constitute part of the
Pledged Shares under and as defined in this Agreement), and all products and
proceeds of any of such additional Pledged Shares, including, without
limitation, all dividends, cash, instruments, subscriptions, warrants and any
other rights and options and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such additional Pledged Shares;
(c) the Rental Agreements and the
chattel paper, instruments and documents representing, constituting, or relating
to the Rental Agreements, and all products and proceeds of the foregoing,
including, without limitation, all interest and rental payments, instruments,
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for the Rental Agreements;
(d) all promissory notes evidencing
indebtedness of Borrower or any Subsidiary of Borrower to such Pledgor;
(e) all additional promissory notes,
security agreements, chattel paper, instruments and documents from time to time
held by such Pledgor in any manner, and all products and proceeds of the
foregoing, including, without limitation, all interest and principal payments,
instruments, and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any such additional
promissory notes, instruments and documents, provided, however, that such
Pledgor need not deliver such promissory notes or instruments to Agent if the
aggregate principal amount of such promissory notes and instruments,
collectively, does not exceed One Hundred Thousand Dollars ($100,000); and
(f) all other claims of any kind or
nature and any instruments, certificates, chattel paper or other writings
evidencing such claims, whether in contract or tort and whether arising by
operation of law, consensual agreement or otherwise, at any time acquired by
such Pledgor against any Subsidiary of such Pledgor.
2. SECURITY FOR OBLIGATIONS. This Agreement secures the
payment and performance of all of the Obligations of the Borrower to Agent and
the Lenders under the Loan Agreement.
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3. DELIVERY OF PLEDGED COLLATERAL. All certificates,
documents or instruments representing or evidencing the Pledged Collateral shall
be delivered to and held by or on behalf of the Agent pursuant hereto (except as
otherwise provided in Section 1(e) above) and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Agent; provided, however, that prior to the occurrence of an Event of Default,
in lieu of delivering to Agent the Pledged Collateral consisting of Rental
Agreements, each Pledgor may: (a) cause the forms of all Rental Agreements
employed by such Pledgor to contain the following notice, in a prominent manner:
"CHATTEL PAPER FINANCING NOTICE: THIS CHATTEL PAPER IS SUBJECT
TO A PRIOR SECURITY INTEREST TO FLEET CAPITAL CORPORATION, AS
AGENT, PERFECTED BY THE FILING OF A UNIFORM COMMERCIAL CODE
FINANCING STATEMENT. NO SECURITY OR OWNERSHIP INTEREST MAY BE
PERFECTED HEREIN BY POSSESSION OF THIS CHATTEL PAPER UNDER THE
UCC OR OTHERWISE."
or, (b) with respect to Rental Agreements in effect as of the Closing Date, to
cause each Rental Agreement to be stamped, in a prominent manner, with the
foregoing legend. With respect to any Pledged Shares which are not evidenced by
a certificate, each Pledgor shall, and shall cause its Subsidiary to, enter into
an agreement in form and substance satisfactory to the Agent, granting to the
Agent control of such Pledged Shares under the UCC.
4. REPRESENTATIONS AND WARRANTIES. Each Pledgor
represents and warrants to the Agent and the Lenders as follows:
(a) The Pledged Shares owned by such Pledgor
have been duly authorized and validly issued and are fully paid and
non-assessable. The Rental Agreements to which such Pledgor is a party have been
duly authorized and executed by the respective Lessees which are parties
thereto, and constitute the legal, valid and binding obligations of such respect
Lessees.
(b) Such Pledgor is the legal and beneficial
owner of the Pledged Collateral of such Pledgor, free and clear of any Lien on
the Pledged Collateral except as permitted in the Loan Agreement.
(c) Upon the delivery to the Agent of the
Pledged Collateral, the filing of appropriate financing statements or other
compliance with Section 3 hereof, the pledge of the Pledged Collateral of such
Pledgor pursuant to this Agreement creates, subject to the Liens permitted under
the Loan Agreement, a valid and perfected first priority interest in such
Pledged Collateral securing the payment of the Obligations for the benefit of
the Agent and the Lenders, provided the Pledged Collateral is held in the
possession of the Agent or the provisions of Section 3 hereof shall have
otherwise been complied with by such Pledgor.
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(d) No authorization, approval, or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required either (i) for the pledge by such Pledgor of its Pledged
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by such Pledgor or (ii) for the exercise by the
Agent of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement (except
as may be required in connection with such disposition by laws affecting the
offering and sale of securities and except for the filing of appropriate
financing statements).
(e) Such Pledgor has requisite corporate power
and authority to execute, deliver and perform this Agreement and has the right
to vote, pledge and grant a security interest in its Pledged Shares and to
pledge and grant a security interest in the Rental Agreements to which it is a
party as provided by this Agreement.
(f) This Agreement has been duly authorized,
executed and delivered by such Pledgor and constitutes the legal, valid and
binding obligation of such Pledgor, enforceable in accordance with its terms,
subject to or limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally, and to general principles of equity.
(g) The Pledged Shares owned by such Pledgor
constitute, as of the date hereof, the percentage of the authorized, issued and
outstanding equity interests of the Issuers set forth on Schedule I hereto and
constitute all of the equity interests and voting securities of each of the
Issuers beneficially owned by such Pledgor.
(h) Except for the Pledged Shares, there are no
other instruments, certificates, securities or other writings, or any chattel
paper, evidencing or representing any interest in or claim against any of the
equity interests of the Issuers or any subsidiary of any of the Issuers.
5. FURTHER ASSISTANCE. Each Pledgor agrees that at any
time and from time to time, at the expense of such Pledgor, such Pledgor will
promptly execute and deliver, or cause to be executed and delivered, all stock
powers, note powers, proxies, assignments, chattel paper, rental agreements,
instruments and documents and take all further action, that is reasonably
necessary, at the Agent's request, in order to perfect any security interest
granted or purported to be granted hereby or to enable the Agent to exercise and
enforce its rights and remedies hereunder with respect to any Pledged Collateral
and to carry out the provisions and purposes hereof. Each Pledgor further agrees
that it will, upon obtaining any additional shares of stock or other equity
interests required to be pledged hereunder, as soon as reasonably practicable,
deliver to Agent a Pledge Supplement, duly executed by such Pledgor, in
substantially the form of Exhibit A hereto (a "Pledge Supplement"), in respect
of the additional Pledged Shares to be pledged pursuant to this Agreement. Upon
each delivery of a Pledge Supplement to Agent, the representations and
warranties contained in Section 4 hereof shall be deemed to have been made by
such Pledgor as to the Pledged Collateral described in such Pledge Supplement as
of the date thereof. Each Pledgor hereby authorizes Agent to attach each Pledge
Supplement to this Agreement and agrees that all Pledged Shares of such Pledgor
listed on any Pledge Supplement
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shall for all purposes hereunder be considered Pledged Collateral of such
Pledgor; provided, however, that the failure of such Pledgor to execute a Pledge
Supplement with respect to any additional Pledged Shares pledged pursuant to
this Agreement shall not impair the security interest of Agent therein or
otherwise adversely affect the rights and remedies of Agent hereunder with
respect thereto.
6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing and Agent shall not have delivered notice to such
Pledgor, each Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares or any part thereof for any
purpose not inconsistent with the terms of this Agreement, the Loan Agreement or
the other Loan Documents; provided, however, that such Pledgor shall not
exercise or shall refrain from exercising any such right if such action would
have a material adverse effect on the value of the Pledged Collateral or any
part thereof or be inconsistent with or violate any provisions of this
Agreement, the Loan Agreement or any of the other Loan Documents.
(b) So long as no Event of Default shall have
occurred and be continuing, each Pledgor shall be entitled to receive all cash
payments of rent paid from time to time with respect to the Rental Agreements,
which shall be deposited in the Dominion Account or Accounts in accordance with
the Loan Agreement.
(c) So long as no Event of Default shall have
occurred and be continuing, each Pledgor shall be entitled to receive all cash
dividends paid from time to time in respect of the Pledged Shares.
(d) Except as otherwise provided in Section
8.2.6 of the Loan Agreement, any and all (i) dividends or other distributions
and interest or principal paid or payable in the form of instruments and other
property (other than cash interest and principal payments permitted under
Section 6(b) hereof and cash dividends permitted under Section 6(c) hereof)
received, receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Shares, (ii) dividends and other distributions paid or payable in
cash received, receivable or otherwise distributed in respect of any Pledged
Shares in connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-in-surplus, and
(iii) cash paid, payable or otherwise distributed in redemption of, or in
exchange for, any Pledged Shares, shall in each case be delivered forthwith to
the Agent to hold as Pledged Collateral and shall, if received by a Pledgor, be
received in trust for the benefit of the Agent, be segregated from the other
property or funds of such Pledgor, and be forthwith delivered to the Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
(e) The Agent shall execute and deliver (or
cause to be executed and delivered) to each Pledgor all such proxies and other
instruments as such Pledgor may reasonably request for the purpose of enabling
such Pledgor to exercise the voting and other rights which it is entitled to
exercise pursuant to Section 6(a) above.
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(f) All dividends or other distributions and all
interest and principal payments which are received by a Pledgor contrary to the
provisions of this Section 6 shall be received in trust for the benefit of the
Agent, shall be segregated from other funds of such Pledgor and shall be
forthwith paid over to the Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).
(g) Upon the occurrence and during the
continuance of an Event of Default and delivery of notice from the Agent, all
rights of each Pledgor to exercise the voting and other consensual rights which
it would otherwise be entitled to exercise pursuant to Section 6(a) shall cease,
and all such rights shall become vested in the Agent which shall thereupon have
the sole right to exercise such voting and other consensual rights.
(h) Upon the occurrence and during the
continuance of an Event of Default, all cash payments of rent with respect to
the Rental Agreements shall be paid directly to the Agent and, if received by a
Pledgor, shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of such Pledgor, and shall be forthwith paid over to
the Agent as Pledged Collateral in the same form as so received (with any
necessary endorsements) and such Pledgor's right to receive such cash payments
pursuant to Sections 6(b) and 6(c) hereof shall immediately cease.
7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES AND
RENTAL AGREEMENTS.
(a) Each Pledgor agrees that, except as provided
in the Loan Agreement, it will not (i) sell or otherwise dispose of, or grant
any option with respect to, any of the Pledged Collateral without the prior
written consent of the Agent, (ii) create or permit to exist any Lien upon or
with respect to any of the Pledged Collateral, except for the security interest
granted under this Agreement or (iii) enter into any agreement or understanding
that purports to or may restrict or inhibit the Agent's rights or remedies
hereunder, including, without limitation, the Agent's right to sell or otherwise
dispose of the Pledged Collateral.
(b) Each Pledgor agrees that it will pledge and
deliver to the Agent hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional shares of stock or other equity
interests, notes or other securities of the Issuers of which such Pledgor may
become the beneficial owner after the date hereof, or enter into a control
agreement with Agent with respect to any equity interests which are not
certificated.
8. AGENT APPOINTED ATTORNEY-IN-FACT. Each Pledgor hereby
appoints the Agent as such Pledgor's attorney-in-fact, with full authority in
the place and stead of such Pledgor and in the name of such Pledgor or
otherwise, from time to time in the Agent's discretion to take any action and to
execute any instrument which the Agent may deem necessary or advisable to
further perfect and protect the security interest granted hereby, including,
without limitation, to receive, endorse and collect all instruments made payable
to such Pledgor representing any dividend, interest or principal payment or
other distribution in respect of the Pledged Shares or any part thereof and to
give full discharge for the same.
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9. AGENT MAY PERFORM. If any Pledgor fails to perform
any agreement contained herein, the Agent may itself perform, or cause
performance of, such agreement, and the reasonable expenses of the Agent
incurred in connection therewith shall be payable by the applicable Pledgor
under Section 11 hereof.
10. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights
and powers granted to the Agent hereunder are being granted in order to preserve
and protect the Agent's security interest in and to the Pledged Collateral
granted hereby and shall not be interpreted to, and shall not, impose any duties
on the Agent in connection therewith. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, it being
understood that the Agent shall not have any responsibility for (i) ascertaining
or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral, whether or not the
Agent has or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any
Pledged Collateral.
11. SUBSEQUENT CHANGES AFFECTING PLEDGED SHARES. Each
Pledgor represents to the Agent that such Pledgor has made its own arrangements
for keeping informed of changes or potential changes affecting the Pledged
Shares (including, but not limited to, rights to convert, rights to subscribe,
payment of dividends, payments of interest and/or principal, reorganization or
other exchanges, tender offers and voting rights), and such Pledgor agrees that
the Agent shall have no responsibility or liability for informing such Pledgor
of any such changes or potential changes or for taking any action or omitting to
take any action with respect thereto. Except as permitted by the Loan Agreement,
each Pledgor covenants that it will not, without the prior written consent of
the Agent, sell or otherwise dispose of, or grant any option with respect to,
any of the Pledged Collateral or create or permit to exist any Lien upon or with
respect to any of the Pledged Collateral.
12. REMEDIES UPON DEFAULT. If any Event of Default shall
have occurred and be continuing, the Agent shall, in addition to all other
rights given by law or by this Agreement, the Loan Agreement, the other Loan
Documents, or otherwise, have all of the rights and remedies with respect to the
Pledged Collateral of a secured party under the Uniform Commercial Code ("Code")
in effect in the State of California at that time and the Agent may, without
notice and at its option, transfer or register, and each Pledgor shall register
or cause to be registered upon request therefor by the Agent, the Pledged
Collateral or any part thereof on the books of the Issuers into the name of the
Agent or the Agent's nominee(s), indicating that such Pledged Collateral is
subject to the security interest hereunder. In addition, with respect to any
Pledged Collateral which shall then be in or shall thereafter come into the
possession or custody of the Agent, the Agent may sell or cause the same to be
sold at any broker's board (with respect to Pledged Shares) or at any public or
private sale, in one or more sales or lots, at such price or prices as the Agent
may deem best, for cash or on credit or for future delivery, without assumption
of any credit risk, all in accordance with the terms and provisions of the Loan
Agreement and this Agreement. The purchaser of any or all Pledged Collateral so
sold shall thereafter hold the same absolutely, free from any claim, encumbrance
or right of any kind whatsoever. Unless any of the Pledged Collateral threatens
to decline speedily in value or is or
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becomes of a type sold on a recognized market, the Agent will give the
applicable Pledgor reasonable notice of the time and place of any public sale
thereof, or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Pledged Collateral conducted in
conformity with reasonable commercial practices of banks, insurance companies,
commercial finance companies, or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Any requirements of reasonable notice shall be met if written notice
is provided to the applicable Pledgor (as provided in Section 14.1 below) at
least ten (10) Business Days' before the time of the sale or disposition. The
Agent or any Lender may, in its own name or in the name of a designee or
nominee, buy any of the Pledged Collateral at any public sale and, if permitted
by applicable law, at any private sale. All reasonable out-of-pocket expenses
(including court costs and reasonable attorneys' fees, expenses and
disbursements) of, or incident to, the enforcement of any of the provisions
hereof shall be recoverable from the proceeds of the sale or other disposition
of the Pledged Collateral. In view of the fact that federal and state securities
laws may impose certain restrictions on the method by which a sale of the
Pledged Collateral may be effected after an Event of Default, each Pledgor
agrees that upon the occurrence or existence of any Event of Default, the Agent
may, from time to time, attempt to sell all or any part of the Pledged Shares by
means of a private placement, restricting the prospective purchasers to those
who will represent and agree that they are purchasing for investment only and
not for distribution. In so doing, the Agent may solicit offers to buy the
Pledged Shares, or any part of it, for cash, from a limited number of bona fide
investors who might be interested in purchasing the Pledged Shares, and if the
Agent solicits such offers from not less than four (4) such bona fide investors
that are not affiliated with the Agent, then the acceptance by the Agent of the
highest offer obtained therefrom shall be deemed to be a commercially reasonable
method of disposition of the Pledged Shares.
In addition, upon the occurrence and during the continuance of
an Event of Default, all rights of each Pledgor to exercise the voting and other
rights which it would otherwise be entitled to exercise shall cease, and all
such rights shall thereupon become vested in the Agent as provided in and
subject to the terms of Section 6(g) hereof.
13. EXPENSES. Each Pledgor will, upon demand, pay to the
Agent the amount of any and all reasonable out-of-pocket expenses, including,
without limitation, the reasonable out-of-pocket fees, expenses and
disbursements of its counsel, of any investment banking firm, business broker or
other selling agent and of any other experts and agents retained by the Agent,
which the Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Pledged Collateral, (iii) the exercise or
enforcement of any of the rights of the Agent hereunder or (iv) the failure by
such Pledgor to perform or observe any of the provisions hereof.
14. MISCELLANEOUS PROVISIONS.
14.1 Notices. All notices, approvals, consents or
other communications required or desired to be given hereunder shall be in the
form and manner, and delivered to Borrower and Agent at their respective
addresses, set forth in Section 12.8 of the Loan Agreement. All notices to other
Pledgors shall be sent to Borrower.
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14.2 Headings. The headings in this Agreement are
for purposes of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
14.3 Severability. The provisions of this
Agreement are severable, and if any clause or provision shall be held invalid,
illegal or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect in that jurisdiction only such
clause or provision, or part thereof, and shall not in any manner affect such
clause or provision in any other jurisdiction or any other clause or provision
of this Agreement in any jurisdiction.
14.4 Amendments, Waivers and Consents. Any
amendment or waiver of any provision of this Agreement and any consent to any
departure by any Pledgor from any provision of this Agreement shall be effective
only if made or given in compliance with all of the terms and provisions of
Section 11.10 of the Loan Agreement.
14.5 Interpretation of Agreement. Time is of the
essence in each provision of this Agreement of which time is an element. All
terms not defined herein or in the Loan Agreement shall have the meaning set
forth in the applicable Uniform Commercial Code, except where the context
otherwise requires. To the extent a term or provision of this Agreement
conflicts with the Loan Agreement, the Loan Agreement shall control with respect
to the subject matter of such term or provision. Acceptance of or acquiescence
in a course of performance rendered under this Agreement shall not be relevant
in determining the meaning of this Agreement even though the accepting or
acquiescing party had knowledge of the nature of the performance and opportunity
for objection.
14.6 Continuing Security Interest: Transfer of
Notes. This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until payment in full
(including after the expiration of the Term) of the Obligations and termination
of the Loan Agreement, (ii) be binding upon each Pledgor, its successors and
assigns, and (iii) inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the Lenders and their respective
successors, transferees and assigns. Without limiting the generality of clause
(iii) above, any Lender may, except as limited by the express terms of the Loan
Agreement, assign or otherwise transfer any Note held by it to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender herein or otherwise.
14.7 Reinstatement. To the extent permitted by
law, this Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any amount received by the Agent or any Lender in respect
of the Obligations is rescinded or must otherwise be restored or returned by the
Agent or such Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of any Pledgor or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for any Pledgor or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
14.8 Survival of Provisions. All representations,
warranties and covenants of each Pledgor contained herein shall survive the
execution and delivery of this
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Agreement, and shall terminate only upon the full and final payment and
performance by the Borrower of the Obligations secured hereby and termination of
the Loan Agreement.
14.9 Waivers. Each Pledgor waives presentment and
demand for payment of any of the Obligations, protest and notice of dishonor or
default with respect to any of the Obligations, and all other notices to which
such Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Loan Agreement.
14.10 Authority of the Agent. The Agent shall have
and be entitled to exercise all powers hereunder which are specifically granted
to the Agent by the terms hereof, together with such powers as are reasonably
incident thereto. The Agent may perform any of its duties hereunder or in
connection with the Pledged Collateral by or through agents or employees and
shall be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Neither the Agent nor any director,
officer, employee, attorney or agent of the Agent shall be liable to any Pledgor
for any action taken or omitted to be taken by it or them hereunder, except for
its or their own gross negligence or willful misconduct, nor shall the Agent be
responsible for the validity, effectiveness or sufficiency of this Agreement or
of any document or security furnished pursuant hereto. The Agent and its
directors, officers, employees, attorneys and agents shall be entitled to rely
on any communication, instrument or document reasonably believed by it or them
to be genuine and correct and to have been signed or sent by the proper person
or persons. Each Pledgor agrees to indemnify and hold harmless the Agent and the
Lenders from and against any and all reasonable out-of-pocket costs, expenses
(including reasonable fees, expenses and disbursements of attorneys and
paralegals), claims and liabilities incurred by the Agent or the Lenders in
connection with this Agreement, unless such claim or liability shall be due to
willful misconduct or gross negligence on the part of the Agent or such Person.
Any successor agent appointed pursuant to the terms of the Loan Agreement shall
automatically become the Agent under this Agreement.
14.11 Release; Termination of Agreement. Subject
to the provisions of Section 14.7 hereof, this Agreement shall terminate upon
full and final payment and performance of all the Obligations and termination of
the Loan Agreement. At such time, the Agent shall, at the request and expense of
the Pledgors, reassign and redeliver to the Pledgors all of the Pledged
Collateral hereunder which has not been sold, disposed of, retained or applied
by the Agent in accordance with the terms hereof, together with a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and such other documents as may reasonably be requested by the
Pledgors in connection therewith. Such reassignment and redelivery shall be
without warranty by or recourse to the Agent, except as to the absence of any
prior assignments by the Agent of its interest in the Pledged Collateral, and
shall be at the expense of the Pledgors.
14.12 Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be deemed an
original but all of which shall together constitute one and the same agreement.
Pg.10
14.13 GOVERNING LAW. THE VALIDITY, INTERPRETATION
AND ENFORCEMENT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY DISPUTE
ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY OF THE LOAN DOCUMENTS,
WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY
THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND DECISIONS
OF THE STATE OF CALIFORNIA.
14.14 SUBMISSION TO JURISDICTION. ALL DISPUTES
AMONG ANY OF THE PLEDGORS, THE AGENT, AND THE LENDERS (OR THE AGENT ACTING ON
THEIR BEHALF) ARISING UNDER THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND FEDERAL COURTS LOCATED
IN LOS ANGELES, CALIFORNIA, AND THE COURTS TO WHICH AN APPEAL THEREFROM MAY BE
TAKEN; PROVIDED, HOWEVER, THAT THE AGENT, ON BEHALF OF THE LENDERS, SHALL HAVE
THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST ANY OF
THE PLEDGORS OR THEIR PROPERTY IN ANY LOCATION REASONABLY SELECTED BY THE AGENT
IN GOOD FAITH TO ENABLE THE AGENT TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE AGENT. EACH PLEDGOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE AGENT HAS
COMMENCED A PROCEEDING ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
14.15 SERVICE OF PROCESS. EACH PLEDGOR HEREBY
IRREVOCABLY DESIGNATES CT CORPORATIONS SYSTEMS AS THE DESIGNEE, APPOINTEE AND
AGENT OF THE BORROWER TO RECEIVE, FOR AND ON BEHALF OF SUCH PLEDGOR, SERVICE OF
PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. IT IS UNDERSTOOD THAT A
COPY OF SUCH PROCESS SERVED ON SUCH AGENT AT ITS ADDRESS WILL BE PROMPTLY
FORWARDED BY MAIL TO SUCH PLEDGOR, BUT FAILURE OF SUCH PLEDGOR TO RECEIVE SUCH
COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS.
14.16 JURY TRIAL. THE PLEDGORS, THE AGENT AND THE
LENDERS EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY. INSTEAD, ANY DISPUTES
WILL BE RESOLVED IN A BENCH TRIAL.
14.17 LIMITATION OF LIABILITY. NEITHER THE AGENT
NOR ANY LENDER SHALL HAVE ANY LIABILITY TO ANY OF THE PLEDGORS (WHETHER SOUNDING
IN TORT, CONTRACT, OR OTHERWISE) FOR LOSSES-SUFFERED BY ANY PLEDGOR IN
CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE TRANSACTIONS OR
RELATIONSHIPS CONTEMPLATED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH,
Pg.11
UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGEMENT OR COURT ORDER
BINDING ON THE AGENT OR ANY SUCH LENDER, THAT THE LOSSES WERE THE RESULT OF ACTS
OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
14.18 Additional Pledgors. From time to time
subsequent to the date hereof, additional Subsidiaries of any Pledgor may become
parties hereto as additional Pledgors (the "Additional Pledgors"), by executing
a counterpart (the "Counterpart") substantially in the form of Exhibit B hereto.
Upon delivery of any such Counterpart to the Agent, notice of which is hereby
waived by Pledgors, each such Additional Pledgor shall be a Pledgor and shall be
as fully a party hereto as if such Additional Pledgor were an original signatory
hereto. Each Pledgor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other
Pledgor hereunder, nor by any election of Agent not to cause any Subsidiary of
Pledgors to become an Additional Pledgor hereunder. This Agreement shall be
fully effective as to any Pledgor that is or becomes a party hereto regardless
of whether any other Person becomes or fails to become or ceases to be a Pledgor
hereunder.
[SIGNATURE PAGE TO FOLLOW]
Pg.12
IN WITNESS WHEREOF, each of the Pledgors and the Agent have
each caused this Agreement to be duly executed and delivered as of the date
first above written.
PLEDGORS:
MOBILE MINI, INC.,
a Delaware corporation
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President and CFO
MOBILE MINI I, INC.,
an Arizona corporation
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
MOBILE MINI HOLDINGS, INC.,
a Delaware corporation
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: President
DELIVERY DESIGN SYSTEMS, INC.,
an Arizona corporation
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
MOBILE MINI, LLC,
a Delaware limited liability company
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President
MOBILE MINI, LLC,
a California limited liability company
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President and CFO
MOBILE MINI OF OHIO, LLC,
a Delaware limited liability company
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Executive Vice President and CFO
MOBILE MINI TEXAS LIMITED
PARTNERSHIP, LLP,
a Texas limited liability partnership
/s/ Xxxxxxxx Xxxxxxxxxxxx
Title: Treasurer
PLEDGEE:
FLEET CAPITAL CORPORATION,
as Agent
/s/ Xxxxxxx Xxx Xxxxxxxxxx
Title: Senior Vice President
Schedule I
PLEDGED SHARES
[UPDATE AS NECESSARY]
Number of Pledged Share Certificate Percentage of
Pledgor Issuer Shares Numbers Outstanding
------- ------ ------ ------- -----------
Mobile Mini, Inc. Mobile Mini I, Inc. 10,000 No. 1 100%
Mobile Mini, Inc. Delivery Design
Systems, Inc. 10,000 No. 2 100%
EXHIBIT A TO
PLEDGE AGREEMENT
[FORM OF PLEDGE SUPPLEMENT]
PLEDGE SUPPLEMENT
This Pledge Supplement, dated __________________, is delivered
pursuant to the Pledge Agreement, dated as of February 11, 2002 (as it may be
from time to time amended, modified or supplemented, the "Pledge Agreement";
capitalized terms used herein not otherwise defined herein shall have the
meanings ascribed therein), among Mobile Mini., Inc., a Delaware corporation,
Mobile Mini I, Inc., an Arizona corporation, Mobile Mini Holdings, Inc., a
Delaware corporation, Delivery Design Systems, Inc., an Arizona corporation,
Mobile Mini, LLC, a Delaware limited liability company, Mobile Mini, LLC, a
California limited liability company, Mobile Mini of Ohio, LLC, a Delaware
limited liability company, and Mobile Mini Texas Limited Partnership, LLP, a
Texas limited liability partnership, in favor of Fleet Capital Corporation, for
itself and as agent (the "Agent").
[NAME OF PLEDGOR] a ______ corporation ("Pledgor") hereby
agrees that the Pledged Shares listed on the schedule attached hereto shall be
deemed to be part of the Pledge Shares and shall become part of the Pledged
Collateral and shall secure all Obligations.
IN WITNESS WHEREOF, Pledgor has caused this Supplement to be
duly executed and delivered by its duly authorized officer as of
_______________.
[PLEDGOR]
By:_________________________________________
Name:_________________________________
Title:________________________________
EXHIBIT B TO
PLEDGE AGREEMENT
[FORM OF COUNTERPART]
COUNTERPART
COUNTERPART (this "Counterpart"), dated _______, is delivered
pursuant to Section 14.18 of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Pledge
Agreement, dated as of February 11, 2002 (as it may be from time to time
amended, modified or supplemented, the "Pledge Agreement"; capitalized terms
used herein not otherwise defined herein shall have the meanings ascribed
therein), among Mobile Mini., Inc., a Delaware corporation, Mobile Mini I, Inc.,
an Arizona corporation, Mobile Mini Holdings, Inc., a Delaware corporation,
Delivery Design Systems, Inc., an Arizona corporation, Mobile Mini, LLC, a
Delaware limited liability company, Mobile Mini, LLC, a California limited
liability company, Mobile Mini of Ohio, LLC, a Delaware limited liability
company, and Mobile Mini Texas Limited Partnership, LLP, a Texas limited
liability partnership, in favor of Fleet Capital Corporation, for itself and as
agent (the "Agent"). The undersigned by executing and delivering this
Counterpart hereby becomes a Pledgor under the Pledge Agreement in accordance
with Section 14.18 thereof and agrees to be bound by all of the terms thereof.
Without limiting the generality of the foregoing, the undersigned hereby:
(i) authorizes the Agent to add the information set forth
on the Schedules to this Counterpart to the correlative Schedules
attached to the Pledge Agreement;
(ii) agrees that all Pledged Collateral of the
undersigned, including the items of property described on the Schedules
hereto, shall become part of the Pledged Collateral and shall secure
all Obligations; and
(iii) makes the representations and warranties set forth in
the Pledge Agreement, as amended hereby, to the extent relating to the
undersigned.
[NAME OF ADDITIONAL PLEDGOR]
By:_________________________________________
Name:_________________________________
Title:________________________________
