EXHIBIT 10.3
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of June 29, 2004, is
made by VISKASE COMPANIES, INC.., a Delaware corporation ("Pledgor"), and XXXXX
FARGO FOOTHILL, INC., a California corporation (together with its successors and
assigns, the "Pledgee").
RECITALS:
A. Pledgor is the sole shareholder of (i) Viskase Films, Inc., a Delaware
corporation ("Viskase Films"), and (ii) WSC Corp., a Delaware corporation doing
business as Wisconsin Steel Company ("WSC").
B. Pledgor is a party with the Pledgee, to that certain Loan and Security
Agreement of even date herewith (as the same may be amended, supplemented or
modified from time to time, the "Loan Agreement"), pursuant to which the Pledgor
has requested that the Pledgee make certain loans to the Pledgor; capitalized
terms used but not defined herein shall have the meanings ascribed thereto in
the Loan Agreement.
C. It is a condition precedent to the making of the loans under and
pursuant to the Loan Agreement that the Pledgor execute and deliver this
Agreement and shall have made the pledge contemplated hereunder in favor of the
Pledgee for the benefit of the Pledgee and the Bank Product Providers.
NOW, THEREFORE, in consideration of the premises hereinabove, and to
induce the Pledgee to make the loans identified hereinabove pursuant to the Loan
Agreement and in consideration of the benefits accruing to the Pledgor, and for
other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the Pledgor hereby covenants and agrees with the
Pledgee for the benefit of the Pledgee and the Bank Product Providers as
follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is for the benefit of the
Pledgee and the Bank Product Providers to secure the prompt and complete payment
and performance when due of any and all of the Obligations.
2. DEFINITION OF PLEDGED COLLATERAL. As used herein, the term "Pledged
Collateral" shall mean the securities and investment property described on Annex
A attached hereto and made a part hereof, and any additional Pledged Collateral
acquired pursuant to Section 3.2 below which Annex A may be supplemented from
time to time pursuant to Section 3.2 below. The Pledgor represents and warrants
to the Pledgee for the benefit of the Pledgee and the Bank Product Providers
that on the date hereof (a) Annex A attached hereto correctly identifies the
Pledged Collateral owned by Pledgor with respect to each of Viskase Films and
WSC; and (b) the Pledgor is the holder of record and sole beneficial and legal
owner of such Pledged Collateral.
3. PLEDGE OF PLEDGED COLLATERAL AND OTHER COLLATERAL.
3.1 Pledge. To secure the Obligations and for the purposes set forth in
Section 1 hereof, Pledgor hereby pledges and collaterally assigns, and grants a
security interest in and lien on, in favor of Pledgee for the benefit of the
Pledgee and the Bank Product Providers, all of Pledgor's right, title and
interest in, to, and under (A) the Pledged Collateral, (B) any additional
Pledged Collateral acquired pursuant to Section 3.2 below (whether by purchase,
dividend, merger, consolidation, sale of assets, split, spin-off, or any other
dividend or distribution of any kind or otherwise), (C) all distributions,
dividends, cash, certificates, liquidation rights and interests, options,
rights, warrants, instruments or other property from time to time received,
receivable or otherwise distributed in respect of or in exchange or substitution
for any and all of the Pledged Collateral, (D) the Pledgor's right to vote the
Pledged Collateral, and (E) all proceeds, products, replacements and
substitutions for any of the foregoing, in each case whether now owned or
hereafter acquired by the Pledgor (collectively, the "Collateral"). If the
Pledged Collateral is evidenced by certificates, then the Pledgor shall
concurrently herewith deposit with the Collateral Agent (as defined below), for
the benefit of the Pledgee and the Collateral Agent, in accordance with the
terms of that certain Intercreditor Agreement dated as of the date hereof (the
"Intercreditor Agreement") by and among the Pledgor, the Pledgee and LaSalle
Bank National Association (the "Collateral Agent"), the Pledged Collateral owned
by the Pledgor on the date hereof and the certificates representing the Pledged
Collateral accompanied by "stock powers" or an Assignment Separate From
Certificate duly executed in blank by the Pledgor. Whether or not the Pledged
Collateral is evidenced by certificates, the Pledgor hereby permits the Pledgee
to file a Code Financing Statement naming the Pledgor as debtor and the Pledgee
as secured party with respect to the Collateral with the Delaware Secretary of
State, in form and substance satisfactory to the Pledgee in its sole and
absolute determination, and without the requirement of the Pledgor's signature.
Notwithstanding anything to the contrary contained in this Agreement, the
Pledgee shall not as a result of this Agreement be responsible or liable for any
obligations or liabilities of the Pledgor in the Pledgor's capacity as a
shareholder, if any, and the Pledgee shall not be deemed to have assumed any of
such obligations or liabilities.
3.2 Subsequently Acquired Pledged Collateral. If at any time or from time
to time after the date hereof during the term of this Agreement, the Pledgor
shall acquire any additional Pledged Interests, including any further stock or
equity in each of Viskase Films and WSC (whether by purchase, dividend, merger,
consolidation, sale of assets, split, spin-off, or any other dividend or
distribution of any kind or otherwise), if the Intercreditor Agreement is in
effect at such time, then the Pledgor will forthwith pledge and, if applicable,
deposit such additional Pledged Collateral with the Collateral Agent, for the
benefit of the Pledgee and the Collateral Agent in accordance with the terms of
the Intercreditor Agreement and deliver to the Collateral Agent, for the benefit
of the Pledgee and the Collateral Agent in accordance with the terms of the
Intercreditor Agreement, certificates or instruments therefor, endorsed in blank
by the Pledgor or accompanied by "stock powers" or an Assignment Separate From
Certificate duly executed in blank by the Pledgor, and will promptly thereafter
deliver to the Collateral Agent, for the benefit of the Pledgee and the
Collateral Agent in accordance with the terms of the Intercreditor Agreement, a
certificate (which shall be deemed to supplement Annex A attached hereto)
executed by the Pledgor describing such Pledged Collateral and the other Pledged
Collateral pledged to the Pledgee, and certifying that the same have been duly
pledged with the Pledgee hereunder. If the Intercreditor Agreement is not in
effect at such time, then the Pledgor will
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make such deposits directly to the Pledgee. Whether or not such additional
Pledged Collateral is evidenced by certificates, the Pledgor shall permit the
Pledgee to file a Code Financing Statement naming the Pledgor as debtor and the
Pledgee as secured party with respect to the additional Collateral with the
Delaware Secretary of State, in form and substance satisfactory to the Pledgee
in its sole and absolute determination, and without the requirement of the
Pledgor's signature.
3.3 Uncertificated Pledged Collateral. In addition to anything contained
in Sections 3.1 and 3.2 hereof, if any Pledged Collateral (whether now owned or
hereafter acquired) is not certificated or becomes an uncertificated security,
the Pledgor shall promptly notify the Pledgee thereof and shall promptly take
all actions required to perfect the security interest and pledge in favor of the
Pledgee under applicable law (including, in any event, any action required or
appropriate under this Agreement or the Code). The Pledgor further agrees to
take such actions as the Pledgee deems necessary or desirable to effectuate the
foregoing and to permit the Pledgee to exercise any of its rights and remedies
hereunder.
4. VOTING, ETC. Until the occurrence and continuance of an Event of
Default (as defined in the Loan Agreement), the Pledgor shall be entitled to
vote any and all of the Pledged Collateral; provided; however, that no vote
shall be cast or any action taken by Pledgor which would violate or be
materially inconsistent with any of the terms of this Agreement, the Loan
Agreement, any other Loan Document, or which would have the effect of materially
impairing the position or interests of the Pledgee or which would authorize or
effect actions prohibited under the terms of the Loan Agreement or any Loan
Document. All such rights of the Pledgor to vote shall cease upon the occurrence
and during the continuance of an Event of Default, if the Pledgee so directs and
provides notice to the Pledgor to do so; provided, however, that upon the cure
or waiver of such Event of Default, all rights of the Pledgee to vote any and
all of the Pledged Collateral shall cease.
5. PAYMENTS AND OTHER DISTRIBUTIONS. Until the occurrence and continuance
of an Event of Default and subject in all cases to the Intercreditor Agreement,
all cash, dividends or distributions payable in respect of the Pledged
Collateral (to the extent such payments shall be permitted pursuant to the terms
and provisions of the Loan Agreement) shall be paid to the Pledgor; provided,
however, upon the occurrence and during the continuance of an Event of Default,
all cash dividends or distributions payable in respect of the Pledged Collateral
shall be paid to the Pledgee as security for the Obligations if the Pledgee so
directs and provides notice to the Pledgor to that effect; provided, further
that upon the cure or waiver of such Event of Default, all cash dividends or
distributions payable in respect of the Pledged Collateral shall be paid to the
Pledgor. The Pledgee shall be entitled to receive directly, and to retain as
part of the Collateral:
(a) all other or additional securities or investment property, or rights
to subscribe for or purchase any of the foregoing, or property (other than cash)
paid or distributed by way of dividend in respect of the Pledged Collateral; and
(b) all other or additional securities, investment property or property
(including cash) paid or distributed in respect of the Pledged Collateral by way
of split, spin-off, split-up, reclassification, combination of shares or similar
rearrangement.
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Subject to the Intercreditor Agreement, if at any time the Pledgor shall
obtain or possess any of the foregoing Collateral described in this Section, the
Pledgor shall be deemed to hold such Collateral in trust for the Pledgee for the
benefit of the Pledgee and the Bank Product Providers, and the Pledgor shall
promptly surrender and deliver such Collateral to the Pledgee.
6. REMEDIES IN CASE OF AN EVENT OF DEFAULT. Subject to the Intercreditor
Agreement, upon the occurrence and during the continuance of an Event of
Default, the Pledgee shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement, the Loan Agreement, any other
Loan Documents, and/or in equity or by law, and including, without limitation,
all rights and remedies of a secured party of a debtor in default under the
Code) for the protection and enforcement of its rights in respect of the Pledged
Collateral, and to the fullest extent permitted by applicable law, the Pledgee
shall be entitled, without limitation, to exercise the following rights, which
the Pledgor hereby agrees to be commercially reasonable:
(a) to receive all amounts payable to the Pledgor in respect of the
Pledged Collateral in accordance with Section 5 hereof;
(b) to transfer all or any part of the Pledged Collateral into the
Pledgee's name or the name of its nominee or nominees for the benefit of the
Pledgee and the Bank Product Providers;
(c) to vote all or any part of the Pledged Collateral and otherwise act
with respect thereto as though it were the outright owner thereof in accordance
with Section 4 hereof;
(d) at any time or from time to time to sell, assign and deliver, or grant
options to purchase, all or any part of the Pledged Collateral in one or more
parcels, or any interest therein, at any public or private sale at any exchange,
broker's board or at any of the Pledgee's offices or elsewhere, without demand
of performance, advertisement or notice of intention to sell or of time or place
of sale or adjournment thereof or to redeem (all of which, except as may be
required by mandatory provisions of applicable law, are hereby expressly and
irrevocably waived by the Pledgor) for cash, on credit or for other property,
for immediate or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its commercially
reasonable judgment may determine. The Pledgor agrees that to the extent that
notice of sale shall be required by law that at least ten (10) calendar days'
notice to the Pledgor of the time (which shall be during normal business hours)
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Pledgee shall not be
obligated to make any sale of Pledged Collateral regardless of notice of sale
having been given. The Pledgee may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and any such sale
may, without further notice, be made at the time and place to which it was so
adjourned. The Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the Pledged
Collateral, whether before or after sale hereunder, and all rights, if any of
marshalling the Pledged Collateral and any other security for the Obligations or
otherwise. At any such sale, unless prohibited by applicable law, the Pledgee
may bid for and purchase all or any part of the Pledged Collateral so sold free
from any such right or equity of redemption. Neither the Pledgee nor any of the
Bank Product Providers shall be liable for failure to collect or realize upon
any or all of the Pledged Collateral or for any delay in so doing nor shall the
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Pledgee nor any of the Bank Product Providers be under any obligation to take
any action whatsoever with regard thereto;
(e) to settle, adjust, compromise and arrange all accounts, controversies,
questions, claims and demands whatsoever in relation to all or any part of the
Pledged Collateral;
(f) in respect of the Pledged Collateral, to execute all such contracts,
agreements, deeds, documents and instruments, to bring, defend and abandon all
such actions, suits and proceedings, and to take all actions in relation to all
or any part of the Pledged Collateral as the Pledgee in its reasonable
discretion may determine;
(g) to appoint managers, sub-agents, officers and servants for any of the
purposes mentioned in the foregoing provisions of this Section and to dismiss
the same, all as the Pledgee in its reasonable discretion may determine; and
(h) generally, to take all such other action as the Pledgee in its
reasonable discretion may determine as incidental or conducive to any of the
matters or powers mentioned in the foregoing provisions of this Section and
which the Pledgee may or can do lawfully and to use the name of the Pledgor for
the purposes aforesaid and in any proceedings arising therefrom.
7. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of the Pledgee
(for the benefit of the Pledgee and the Bank Product Providers) provided for in
this Agreement, the Loan Agreement, any Loan Document (as defined in the Loan
Agreement) or any other security agreement, mortgage, guaranty or now or
hereafter existing at law or in equity or by statute shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee (for the benefit of the
Pledgee and the Bank Product Providers) of any one or more of the rights, powers
or remedies provided for in this Agreement, the Loan Agreement, or any other
Loan Document or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
of all such other rights, powers or remedies, and no failure or delay on the
part of the Pledgee to exercise any such right, power or remedy shall operate as
a waiver thereof.
8. APPLICATION OF PROCEEDS. Subject to any mandatory requirements of
applicable law and the terms of the Loan Agreement and the Intercreditor
Agreement, all moneys collected by the Pledgee (for the benefit of the Pledgee
and the Bank Product Providers) upon sale or other disposition of the
Collateral, together with all other moneys received by the Pledgee hereunder,
shall be applied as follows:
(a) To the payment of any and all Lender Expenses;
(b) Next, to the payment of the Obligations in accordance with the Loan
Agreement; and
(c) Any surplus then remaining shall be paid to the Pledgor.
9. INDEMNITY. Without duplication of any amounts payable under any other
similar indemnity provision set forth in the Loan Agreement or any other Loan
Documents, the
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Pledgor shall: (i) pay all out-of-pocket costs and expenses of the Pledgee
incurred in connection with the administration of and in connection with the
preservation of rights under, and enforcement of, and any renegotiation or
restructuring of this Agreement and any amendment, waiver or consent relating
thereto (including, without limitation, the reasonable fees and disbursements of
counsel for the Pledgee); (ii) pay and hold the Pledgee and the Bank Product
Providers harmless from and against any and all present and future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to this Agreement and
save the Pledgee and the Bank Product Providers harmless from and against any
and all liabilities with respect to or resulting from any delay or omission to
pay any such taxes, charges or levies; and (iii) indemnify the Pledgee and each
of the Bank Product Providers, and each of their respective officers, directors,
shareholders, employees, representatives and agents from and hold each of them
harmless against any and all costs, losses, liabilities, claims, obligations,
suits, penalties, judgments, damages or expenses incurred by or asserted against
any of them (whether or not any of them is designated a party thereto) arising
out of or by reason of this Agreement or any transaction contemplated hereby
(including, without limitation, any investigation, litigation or other
proceeding related to this Agreement), including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding. Notwithstanding anything in
this Agreement to the contrary, the Pledgor shall not be responsible to the
Pledgee or any Bank Product Provider for any costs, losses, damages, liabilities
or expenses which result from the gross negligence or willful misconduct on the
part of such Pledgee or any Bank Product Provider. The Pledgor's obligations
under this Section shall survive any termination of this Agreement.
10. FURTHER ASSURANCES. Pledgor agrees that, at any time and from time to
time, the Pledgor will join with the Pledgee in executing and, at the Pledgor's
own expense, will file and refile under the Code such financing statements,
continuation statements and other documents in such offices as the Pledgee may
deem necessary or appropriate and wherever required or permitted by law in order
to perfect and preserve the Pledgee's security interest in the Collateral, and
hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
the Pledgor, and agrees to do such further acts and things and to promptly
execute and deliver to the Pledgee such additional conveyances, assignments,
agreements and instruments as the Pledgee may require or deem advisable to carry
into effect the purpose of this Agreement or to further assure and confirm unto
the Pledgee its rights, powers and remedies hereunder.
11. REASONABLE CARE BY PLEDGEE. The Pledgee shall be deemed by the Pledgor
to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Pledgee accords its own similar property.
12. TRANSFER BY THE PLEDGOR. Except as otherwise permitted under the Loan
Agreement, if at all, the Pledgor shall not sell, transfer or otherwise dispose
of, grant any option with respect to, or pledge or otherwise encumber any of the
Collateral or any interest therein.
13. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The Pledgor hereby
represents and warrants to the Pledgee for the benefit of the Pledgee and the
Bank
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Product Providers, which representations and warranties shall survive the
execution and delivery of this Agreement, as follows:
13.1 Validity, Perfection and Priority. The pledge and security interests
in the Pledged Collateral granted to the Pledgee constitute valid and continuing
security interests in the Pledged Collateral. Subject to the Intercreditor
Agreement and the liens in favor of the Collateral Agent, the security interests
in the Collateral granted to the Pledgee for the benefit of the Pledgee and the
Bank Product Providers hereunder constitute valid and perfected security
interests therein superior and prior to the rights or claims of any other person
or entity therein.
13.2 No Liens; Other Financing Statements.
(a) The Pledgor is the legal and beneficial owner of, and has good and
marketable title to, the Pledged Collateral.
(b) Except for any filing made by the Collateral Agent, no financing
statement or other evidence of lien covering or purporting to cover any of the
Pledged Collateral is on file in any public office.
13.3 Pledged Collateral.
(a) The Pledged Collateral described in Annex A attached hereto is, and
all other Pledged Collateral in which the Pledgor shall hereafter xxxxx x xxxx
or security interest pursuant to Section 2 hereof will be, duly authorized,
validly issued, and fully paid, and, except for the pledge provided in Section
3.1 hereof in favor of Pledgee and in favor of the Collateral Agent, none of
such Pledged Collateral is or will be subject to any legal or contractual
restriction. The Pledged Collateral is, as of the date hereof, and shall be at
all times hereafter during the term of this Agreement, freely transferable
without restriction or limitation (except as limited by the terms of this
Agreement).
(b) The Pledged Collateral described in Annex A hereto constitutes all of
the issued and outstanding securities and investment property legally and
beneficially owned by the Pledgor on the date hereof in or relating to each of
Viskase Films and WSC. The Pledgor is the sole shareholder of each of Viskase
Films and WSC.
13.4 Power and Authority. The Pledgor has the power and authority to
pledge and collaterally assign all of the Pledged Collateral pursuant to this
Agreement.
13.5 Intentionally omitted.
13.6 Litigation. There are no actions, suits or proceedings pending or, to
the Pledgor's best knowledge, threatened against or involving Pledgor before any
court with respect to any of the transactions contemplated by this Agreement or
the ability of the Pledgor to perform any of the obligations of the Pledgor
hereunder.
13.7 State of Organization. The Pledgor's state of organization is
Delaware.
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13.8 Continued Existence. Upon any transfer of the Pledged Collateral to
any Person as permitted upon the occurrence and during the continuance of an
Event of Default in accordance with Section 6 hereof, each of Viskase Films and
WSC shall continue in existence.
14. COVENANTS OF THE PLEDGOR. Pledgor covenants and agrees with the
Pledgee that on and after the date hereof and until all of the Obligations shall
have been paid and performed in full (other than contingent indemnification
obligations) and this Agreement terminates in accordance with its terms:
14.1 Collateral. (a) The Pledgor will use its commercially reasonable
efforts to defend the Pledgee's right, title and security interest in and to the
Collateral against the claims and demands of all Persons whomsoever; (b) the
Pledgor will have good and marketable title to and right to pledge any other
property at any time hereafter constituting Collateral and will likewise use its
commercially reasonable efforts to defend the right thereto and security
interest therein of the Pledgee; and (c) Pledgor will not without the advance
written consent of the Pledgee, with respect to any Pledged Collateral, enter
into any shareholder type agreements, voting agreements, voting trusts, trust
deeds, irrevocable proxies or any other similar agreements or instruments, which
would be inconsistent with the terms of this Agreement or materially and
adversely affect the Pledgee's interest in any of the Pledged Collateral.
14.2 Right of Inspection. To the extent permitted in the Loan Agreement,
the Pledgee and its representatives shall have access to all the books,
correspondence and records of the Pledgor relating to the Collateral, if any,
and the Pledgee and its representatives may examine the same, take extracts
therefrom and make photocopies thereof.
14.3 Compliance with Laws. The Pledgor will comply with all requirements
of law applicable to the Pledged Collateral or any part thereof, except where
the failure to comply could not reasonably be expected to result in a Material
Adverse Change.
14.4 Intentionally omitted.
14.5 No Impairment. The Pledgor will not take or permit to be taken any
action which could materially impair the Pledgee's rights in the Pledged
Collateral. The Pledgor will not create, incur or permit to exist, will use its
commercially reasonable efforts to defend the Pledged Collateral against and
will take such other action as is necessary to remove, any lien or claim on or
to the Pledged Collateral, other than the liens created hereby and liens in
favor of the Collateral Agent in accordance with the Intercreditor Agreement,
and will use its commercially reasonable efforts to defend the right, title and
interest of the Pledgee in and to any of the Pledged Collateral against the
claims and demands of all Persons whomsoever.
14.6 Performance by Pledgee of Pledgor's Obligations. If the Pledgor fails
to perform or comply with any of the agreements contained herein, the Pledgee
may, upon the occurrence and during the continuance of an Event of Default,
without notice to or consent by the Pledgor, perform or comply or cause
performance or compliance therewith; provided, however, the Pledgee shall not be
under any obligation to taken any such action.
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14.7 Further Identification of Pledged Collateral. The Pledgor will
furnish to the Pledgee from time to time such reports in connection with the
Pledged Collateral as the Pledgee may reasonably request from time to time.
14.8 Continuous Perfection. The Pledgor will not change the Pledgor's
name, in any manner which might make any financing or continuation statement
filed hereunder seriously misleading within the meaning of any applicable
provision of Article 9 of the Code) unless the Pledgor shall have given the
Pledgee at least fifteen (15) days prior written notice thereof and shall have
taken all action necessary or reasonably requested by the Pledgee to amend such
financing statement or continuation statement so that it is not seriously
misleading. The Pledgor will not change the Pledgor's state of organization
unless the Pledgor shall have given the Pledgee at least fifteen (15) days prior
written notice thereof and shall have taken such action as is necessary to cause
the security interest of the Pledgee in the Pledged Collateral to continue to be
perfected.
14.9 Stay or Extension Laws. The Pledgor will not at any time claim, take,
insist upon or invoke the benefit or advantage of or from any law now or
hereafter in force providing for the valuation or appraisement of the Pledged
Collateral prior to any sale or sales thereof to be made pursuant to the
provisions hereof or pursuant to the decree, judgment, or order of any court of
competent jurisdiction; nor, after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state to redeem
the property so sold or any part thereof, and the Pledgor hereby expressly
waives (to the extent not prohibited by applicable law), on behalf of the
Pledgor and each and every person or entity claiming by, through and under the
Pledgor, all benefit and advantage of any such law or laws, and covenants that
the Pledgor will not invoke or utilize any such law or laws or otherwise hinder,
delay or impede the execution of any power, right or remedy herein or hereby
granted and delegated to the Pledgee, but will authorize, allow and permit the
execution of every such power, right or remedy as though no such law or laws had
been made or enacted.
14.10 Viskase Film's and WSC's Records. The Pledgor shall cause each of
Viskase Films and WSC to make a notation on its respective records indicating
the interest granted hereby in favor of the Pledgee.
15. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of the Pledgor
under this Agreement shall be absolute and unconditional in accordance with its
terms and shall remain in full force and effect (except as otherwise provided
herein under Section 19) without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (a) any change in the
time, place or manner of payment of, or in any other term of, all or any of the
Obligations, any waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or any
other action or inaction under or in respect of this Agreement, the Loan
Agreement or any other Loan Document (as defined in the Loan Agreement), or any
of the other documents, instruments or agreements relating to the Obligations or
any other instrument or agreement referred to therein or any assignment or
transfer of any thereof; (b) any lack of validity or enforceability of the Loan
Agreement, or any other Loan Document (as defined in the Loan Agreement), or any
other documents, instruments or agreement referred to therein or any assignment
or transfer of any thereof; (c) any furnishing
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of any additional security or collateral to the Pledgee, for the benefit of the
Pledgee and/or the Bank Product Providers; or its assignees or any acceptance
thereof or any release of any security by the Pledgee or its assignees; (d) any
limitation on any party's liability or obligations under any such instrument or
agreement or any invalidity or unenforceability, in whole or in part, of any
such instrument or agreement or any term thereof; (e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding relating to the Pledgor or any other Person, as
applicable, or any action taken with respect to this Agreement by any trustee or
receiver, or by any court, in any such proceeding, whether or not the Pledgor
shall have notice or knowledge of any of the foregoing; (f) any exchange,
release or nonperfection of any other collateral, or any release, or amendment
or waiver of or consent to departure from any guaranty or security, for all or
any of the Obligations; or (g) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Pledgor.
16. NOTICES, ETC. Except as otherwise expressly provided herein, any
notice required or desired to be served, given or delivered hereunder shall be
in the form and manner, and shall be addressed to the parties set forth in the
Loan Agreement.
17. POWER OF ATTORNEY. Pledgor hereby absolutely and irrevocably
constitutes and appoints the Pledgee for the benefit of the Pledgee and the Bank
Product Providers as Pledgor's true and lawful agent and attorney-in-fact with
full power of substitution, in the name of Pledgor upon the occurrence and
during the continuance of an Event of Default: (a) to execute and do all such
assurances, acts and things which the Pledgor ought to do but has failed to do
under the covenants and provisions contained in this Agreement; (b) to take any
and all such action as the Pledgee or any of its sub-agents, nominees or
attorneys may, in its or their commercially reasonable discretion, reasonably
determine as necessary or advisable for the purpose of maintaining preserving or
protecting the security constituted by this Agreement or any of the rights,
remedies, powers or privileges of the Pledgee under this Agreement; and (c)
generally, in the name of the Pledgor, exercise all or any of the powers,
authorities, and discretions conferred on or reserved to the Pledgee by or
pursuant to this Agreement, and (without prejudice to the generality of any of
the foregoing) to deliver or otherwise perfect any deed, assurance, agreement,
instrument or act as the Pledgee may deem proper in or for the purpose of
exercising any of such powers, authorities or discretions. The Pledgor hereby
ratifies and confirms, and hereby agrees to ratify and confirm, whatever lawful
acts the Pledgee or any of the Pledgee's sub-agents or attorneys shall do or
purport to do in the exercise of the power of attorney granted to the Pledgee
pursuant to this Section, which power of attorney, being coupled with an
interest and given for security, is irrevocable; provided, however, that the
Pledgor neither ratifies nor confirms any acts of the Pledgee or any of the
Pledgee's sub-agents or attorneys do in the exercise of this power of attorney
if such acts constitute the gross negligence or willful misconduct of such
Person.
18. MISCELLANEOUS. The Pledgor agrees with the Pledgee that each of the
obligations and liabilities of the Pledgor to the Pledgee under this Agreement
may be enforced against the Pledgor without the necessity of joining any other
Person (as defined in the Loan Agreement) as a party. This Agreement shall
create a continuing security interest in the Pledged Collateral and shall be
binding upon the heirs and legal beneficiaries, and permitted successors and
assigns, of the Pledgor, as applicable, and shall inure to the benefit of and be
enforceable by
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the Pledgee and its successors and assigns. Unless otherwise defined herein,
terms defined in the Code are used herein as therein defined. The headings and
titles in this Agreement are for convenience of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. If any provision of this Agreement shall prove to be
invalid or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all parties
hereto. The Pledgor shall have no rights of subrogation as to any of the Pledged
Collateral until full and complete performance and payment of the Obligations
(other than contingent indemnification obligations). A signature hereto
distributed by facsimile or electronic mail shall be deemed to be as legally
binding as a signed original.
19. TERMINATION; RECOVERY CLAIM. This Agreement shall terminate after the
Obligations are paid in full (other than contingent indemnification obligations)
and the Loan Agreement is terminated in accordance with its terms. Upon the
termination of this Agreement, or as otherwise provided in the Loan Agreement,
the Pledgee, at the request of the Pledgor and at the cost and expense of the
Pledgor, will promptly execute and deliver to the Pledgor the proper instruments
acknowledging the termination of this Agreement and the security interest and
lien on the Pledged Collateral created hereby and will duly assign, transfer and
deliver to the Pledgor or to whomsoever shall be lawfully entitled to receive
the same (without recourse and without any representation or warranty of any
kind) such of the Pledged Collateral as may be in the possession of the Pledgee
and has not theretofore been sold or otherwise applied or released pursuant to
this Agreement. Should a claim ("Recovery Claim") be made upon the Pledgee or
any or all of the Bank Product Providers at any time for recovery of any amount
received by the Pledgee or any or all of the Bank Product Providers in payment
of the Obligations (whether received from Pledgor or otherwise) and should the
Pledgee or any or all of the Bank Product Providers repay all or part of said
amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Pledgee or any or all of the
Bank Product Providers or any of their respective property; or (b) any
settlement or compromise of any such Recovery Claim effected by the Pledgee or
any or all of the Bank Product Providers with the claimant (including, without
limitation, Pledgor), this Agreement and the security interests granted to the
Pledgee for the benefit of the Pledgee and the Bank Product Providers hereunder
shall continue in effect with respect to the amount so repaid to the same extent
as if such amount had never originally been received by the Pledgee or any or
all of the Bank Product Providers, notwithstanding any prior termination of this
Agreement, the return of this Agreement to the Pledgor, or the cancellation of
any note or other instrument evidencing the Obligations.
20. AMENDMENTS; MARSHALLING, ETC. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgor and the Pledgee. The Pledgee shall be
under no obligation to marshal any assets or collateral in favor of the Pledgor
or any other person or entity or against or in payment of any or all of the
Obligations. All indemnities set forth herein shall survive the execution and
delivery of this Agreement and the making and repayment of the Obligations. The
Bank Product Providers are the intended third party beneficiaries of this
Agreement.
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21. REVIEW OF AGREEMENT BY PLEDGOR. The Pledgor acknowledges that Pledgor
has thoroughly read and reviewed the terms and provisions of this Agreement, and
that such terms and provisions are clearly understood by the Pledgor, and has
been fully and unconditionally consented to by the Pledgor with the full benefit
and advice of counsel chosen by the Pledgor, and that the Pledgor has freely and
voluntarily signed this Agreement without duress.
22. WAIVER OF CLAIMS. Except as otherwise provided in this Agreement or
prohibited by law, PLEDGOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE PLEDGEE'S
TAKING POSSESSION OR SALE OR THE PLEDGEE'S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH PLEDGOR WOULD OTHERWISE
HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE,
and Pledgor hereby further waives (and releases any cause of action and claim
against the Pledgee as a result of), to the fullest extent permitted by law: (a)
all damages occasioned by such taking of possession, collection or sale except
any damages which are the direct result of the Pledgee's gross negligence or
willful misconduct; (b) all other requirements as to the time, place and terms
of sale or other requirements with respect to the enforcement of the Pledgee's
rights hereunder; (c) demand of performance or other demand, notice of intent to
demand or accelerate, notice of acceleration, presentment, protest,
advertisement or notice of any kind to or upon the Pledgor or any other person
or entity; and (d) all rights of redemption, appraisement, valuation, diligence,
stay, extension or moratorium now or hereafter in force under any applicable law
in order to delay the enforcement of this Agreement.
23. INTENTIONALLY OMITTED.
24. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
ILLINOIS AND THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION
AND ENFORCEMENT, AND THE RIGHTS AND OBLIGATIONS OF PARTIES HEREUNDER, SHALL BE
DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW OR CHOICE OF LAW
PRINCIPLES.
(b) THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH OR RELATED TO THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY
IN THE STATE AND FEDERAL COURTS LOCATED IN XXXX COUNTY, STATE OF ILLINOIS. THE
PLEDGOR WAIVES ANY RIGHT PLEDGOR MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO SUCH VENUE AND HEREBY CONSENTS TO ANY COURT ORDERED
RELIEF. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE RIGHT OF THE PLEDGEE
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
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PERMITTED BY LAW OR AFFECT THE RIGHT OF THE PLEDGEE TO BRING ANY ACTION OR
PROCEEDING AGAINST THE PLEDGOR OR PLEDGOR'S PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
25. WAIVER OF TRIAL BY JURY. THE PLEDGOR AND THE PLEDGEE EACH KNOWINGLY,
VOLUNTARILY, IRREVOCABLY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO TRIAL BY JURY
OF ALL DISPUTES BETWEEN THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO OR ARISE OUT OF THIS AGREEMENT OR TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PLEDGOR AND THE
PLEDGEE EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE PLEDGOR AND THE PLEDGEE FURTHER WARRANT AND
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
26. Intercreditor Agreement. (a) The Liens granted hereunder in favor of
the Pledgee for the benefit of itself and the Bank Product Providers in respect
of the Collateral and the exercise of any right related thereto thereby shall be
subject, in each case, to the terms of the Intercreditor Agreement. (b) In the
event of any direct conflict between the express terms and provisions of this
Agreement and of the Intercreditor Agreement, the terms and provisions of the
Intercreditor Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
VISKASE COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
XXXXX FARGO FOOTHILL, INC.
By: /s/ Xxxxx X. Xxxx
Its: Vice President
ACKNOWLEDGED AND AGREED:
Each of Viskase Films, Inc. and WSC Corp. hereby (i) acknowledges the
pledge of the Pledged Collateral described above pursuant to the terms of this
Pledge Agreement and agrees to register such pledge in its books and records,
and (ii) agrees, upon receipt of notice from Pledgee of the occurrence and
continuance of an Event of Default, to comply with the written instructions
originated by Pledgee, without further consent of the registered holder of the
Pledged Collateral, including, without limitation, instructions to pay and remit
to Pledgee all distributions and other amounts payable to the Pledgor (upon
redemption, termination and dissolution of each of Viskase Films, Inc. and WSC
Corporation or otherwise), and to transfer to, and register the Pledged
Collateral in the name of, Pledgee or its nominee, and (iii) agrees to promptly
honor its payment obligations contained in this Pledge Agreement.
VISKASE FILMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
WSC CORP.
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
