EXHIBIT 10.20
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 28, 1998 (together with all
amendments, if any, from time to time hereto, this "AGREEMENT") between HESCO
SALES, INC., a Florida corporation (the "PLEDGOR") and GENERAL ELECTRIC CAPITAL
CORPORATION in its capacity as Administrative Agent for Lenders ("Administrative
Agent").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Credit Parties,
Administrative Agent, NationsBank, N.A., as Revolver Agent for Lenders
("Revolver Agent") and the Persons signatory thereto from time to time as
Lenders (including all annexes, exhibits and schedules thereto, and as from time
to time amended, restated, supplemented or otherwise modified (the "CREDIT
AGREEMENT") the Lenders have agreed to make Loans to, and incur Letter of Credit
Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the shares of
Stock listed in Part A of SCHEDULE I hereto and the owner of the promissory
notes and instruments listed in Part B of SCHEDULE I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Administrative Agent, Revolver Agent and
Lenders to make the Loans and to incur the Letter of Credit Obligations as
provided for in the Credit Agreement, Pledgor has agreed to pledge the Pledged
Collateral to Administrative Agent in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"BANKRUPTCY CODE" means title 11, United States Code, as
amended from time to time, and any successor statute thereto.
"PLEDGED COLLATERAL" has the meaning assigned to such term in
SECTION 2 hereof.
"PLEDGED ENTITY" means an issuer of Pledged Shares or Pledged
Indebtedness.
"PLEDGED INDEBTEDNESS" means the Indebtedness evidenced by
promissory notes and instruments listed on Part B of SCHEDULE I hereto;
"PLEDGED SHARES" means those shares listed on Part A of
SCHEDULE I hereto.
"SECURED OBLIGATIONS" has the meaning assigned to such term
in SECTION 3 hereof.
2. PLEDGE. Pledgor hereby pledges to Administrative Agent, and grants
to Administrative Agent for itself, Revolver Agent and the benefit of Lenders, a
first priority security interest in all of the following (collectively, the
"PLEDGED COLLATERAL"):
A. the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares; and
B. such portion, as determined by Administrative Agent as
provided in SECTION 6(D) below, of any additional shares of stock of a
Pledged Entity from time to time acquired by Pledgor in any manner
(which shares shall be deemed to be part of the Pledged Shares), and
the certificates representing such additional shares, and all
dividends, distributions, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Stock;
and
C. the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
D. (iv) all additional Indebtedness arising after the date
hereof and owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. SECURITY FOR OBLIGATIONS. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "SECURED OBLIGATIONS").
4. DELIVERY OF PLEDGED COLLATERAL. All certificates and all promissory
notes and instruments evidencing the Pledged Collateral shall be delivered to
and held by or on behalf of
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Administrative Agent, for itself and for the benefit of the Revolver Agent and
the Lenders, pursuant hereto. All Pledged Shares shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Administrative Agent and all promissory notes or other
instruments evidencing the Pledged Indebtedness shall be endorsed by Pledgor.
5. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants to
Administrative Agent that:
A. Pledgor is, and at the time of delivery of the Pledged
Shares to Administrative Agent will be, the sole holder of record and the sole
beneficial owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien created by
this Agreement; Pledgor is and at the time of delivery of the Pledged
Indebtedness to Administrative Agent will be, the sole owner of such Pledged
Collateral free and clear of any Lien thereon or affecting title thereto, except
for any Lien created by this Agreement;
B. All of the Pledged Shares have been duly authorized,
validly issued and are fully paid and non-assessable; to its knowledge, the
Pledged Indebtedness has been duly authorized, authenticated or issued and
delivered by, and is the legal, valid and binding obligations of, the Pledged
Entities, and no such Pledged Entity is in default thereunder;
C. Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral pledged
by Pledgor to Administrative Agent as provided herein;
D. None of the Pledged Shares or, to its knowledge, any of the
Pledged Indebtedness has been issued or transferred in violation of the
securities registration, securities disclosure or similar laws of any
jurisdiction to which such issuance or transfer may be subject;
E. All of the Pledged Shares are presently owned by Pledgor,
and are presently represented by the certificates listed on Part A of SCHEDULE I
hereto. As of the date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged Shares;
F. No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority or any
other Person is required (i) for the pledge by Pledgor of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by Pledgor, or (ii) for the exercise by Administrative 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 generally;
G. The pledge, assignment and delivery of the Pledged
Collateral pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Administrative
Agent for the benefit of itself, Revolver Agent and Lenders in the Pledged
Collateral and the proceeds thereof, securing the payment of the Secured
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Obligations, subject to no other Lien;
H. This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding obligation of
Pledgor enforceable against Pledgor in accordance with its terms;
I. The Pledged Shares constitute 100% of the issued and
outstanding shares of Stock of each Pledged Entity; and
J. Except as disclosed on Part B of SCHEDULE I, none of the
Pledged Indebtedness is subordinated in right of payment to other Indebtedness
(except for the Secured Obligations) or subject to the terms of an indenture.
The representations and warranties set forth in this SECTION 5 shall
survive the execution and delivery of this Agreement.
6. COVENANTS. Pledgor covenants and agrees that until the Termination
Date:
A. Without the prior written consent of Administrative Agent,
Pledgor will not sell, assign, transfer, pledge, or otherwise encumber any of
its rights in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral or xxxxx
x Xxxx in the Pledged Collateral, unless otherwise expressly permitted by the
Credit Agreement;
B. Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Administrative
Agent from time to time may request in order to ensure to Administrative Agent,
Revolver Agent and Lenders the benefits of the Liens in and to the Pledged
Collateral intended to be created by this Agreement, including the filing of any
necessary Code financing statements, which may be filed by Administrative Agent
with or (to the extent permitted by law) without the signature of Pledgor, and
will cooperate with Administrative Agent, at Pledgor's expense, in obtaining all
necessary approvals and making all necessary filings under federal, state, local
or foreign law in connection with such Liens or any sale or transfer of the
Pledged Collateral;
C. Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Administrative Agent in the Pledged Collateral
against the claim of any Person and will maintain and preserve such Liens; and
D. Pledgor will, upon obtaining ownership of any additional
Stock or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to
Administrative Agent pursuant to any of the Loan Documents, which Stock, notes
or instruments are not already Pledged Collateral, promptly (and in any event
within three (3) Business Days) deliver to Administrative Agent a Pledge
Amendment, duly executed by Pledgor, in substantially the form of SCHEDULE II
hereto (a "PLEDGE AMENDMENT") in respect of any such additional Stock, notes or
instruments, pursuant to which Pledgor shall pledge to Administrative Agent all
of such additional Stock, notes and instruments. Pledgor hereby authorizes
Administrative Agent to attach each Pledge
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Amendment to this Agreement and agrees that all Pledged Shares and Pledged
Indebtedness listed on any Pledge Amendment delivered to Administrative Agent
shall for all purposes hereunder be considered Pledged Collateral.
E. PLEDGOR'S RIGHTS. As long as no Default or Event of Default
shall have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with SECTION 7(A) hereof:
a. Pledgor shall have the right, from time to time,
to vote and give consents with respect to the Pledged Collateral, or
any part thereof for all purposes not inconsistent with the provisions
of this Agreement, the Credit Agreement or any other Loan Document;
PROVIDED, HOWEVER, that no vote shall be cast, and no consent shall be
given or action taken, which would have the effect of impairing the
position or interest of Administrative Agent in respect of the Pledged
Collateral or which would authorize, effect or consent to (unless and
to the extent expressly permitted by the Credit Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except
for Liens in favor of Administrative Agent;
(iv) any change in the authorized number of shares, the stated
capital or the authorized share capital of a Pledged Entity or
the issuance of any additional shares of its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
b. Pledgor shall be entitled, from time to time, to
collect and receive for its own use all cash dividends and interest
paid in respect of the Pledged Shares and Pledged Indebtedness to the
extent not in violation of the Credit Agreement OTHER THAN any and all:
(A) dividends and interest paid or payable other than in cash in
respect of any Pledged Collateral, and instruments and other property
received, receivable or otherwise distributed in respect of, or in
exchange for, any Pledged Collateral; (B) dividends and other
distributions paid or payable in cash 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
capital of a Pledged Entity; and (C) cash paid, payable or otherwise
distributed, in respect of principal of, or in redemption of, or in
exchange for, any Pledged Collateral; PROVIDED, HOWEVER, that until
actually paid all rights to such distributions shall remain subject to
the Lien created by this Agreement; and
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c. all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with CLAUSE (B) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Administrative Agent to hold as
Pledged Collateral and shall, if received by Pledgor, be received in
trust for the benefit of Administrative Agent, be segregated from the
other property or funds of Pledgor, and be forthwith delivered to
Administrative Agent as Pledged Collateral in the same form as so
received (with any necessary indorsement).
7. DEFAULTS AND REMEDIES; PROXY.
A. Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written notice to
Pledgor, Administrative Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the name of
its nominee the whole or any part of the Pledged Collateral, to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations, to exercise the
voting and all other rights as a holder with respect thereto, to collect and
receive all cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of the time
and place of any public sale or of the time at which a private sale is to take
place (which notice Pledgor agrees is commercially reasonable) the whole or any
part of the Pledged Collateral and to otherwise act with respect to the Pledged
Collateral as though Administrative Agent was the outright owner thereof. Any
sale shall be made at a public or private sale at Administrative Agent's place
of business, or at any place to be named in the notice of sale, either for cash
or upon credit or for future delivery at such price as Administrative Agent may
deem fair, and Administrative Agent may be the purchaser of the whole or any
part of the Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or any right of redemption. Each sale shall
be made to the highest bidder, but Administrative Agent reserves the right to
reject any and all bids at such sale which, in its discretion, it shall deem
inadequate. Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of property at
sale are hereby waived and any sale hereunder may be conducted by an auctioneer
or any officer or agent of Administrative Agent. Administrative Agent shall
apply the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale to the Secured Obligations as provided in the Credit
Agreement, and only after so paying over such net proceeds, and after the
payment by Administrative Agent of any other amount required by any provision of
law, need Administrative Agent account for the surplus, if any, to Pledgor.
Pledgor shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Pledged Collateral are insufficient to pay all Secured
Obligations, including any attorneys' fees and other expenses incurred by
Administrative Agent, Revolver Agent or any Lender to collect such deficiency.
PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS ADMINISTRATIVE AGENT AS THE
PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL,
INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF SUBSTITUTION
TO DO SO, UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT.
THE APPOINTMENT OF
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ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST
AND SHALL BE IRREVOCABLE UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO
VOTE THE PLEDGED SHARES, THE APPOINTMENT OF ADMINISTRATIVE AGENT AS PROXY AND
ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD BE
ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS,
CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH
PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION
(INCLUDING ANY TRANSFER OF ANY PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER
THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY
OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT.
NOTWITHSTANDING THE FOREGOING, ADMINISTRATIVE AGENT SHALL NOT HAVE ANY DUTY TO
EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY
FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO.
B. If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if there be
but one sale, shall be inadequate to discharge in full all the Secured
Obligations, or if the Pledged Collateral be offered for sale in lots, if at any
of such sales, the highest bid for the lot offered for sale would indicate to
Administrative Agent, in its discretion, that the proceeds of the sales of the
whole of the Pledged Collateral would be unlikely to be sufficient to discharge
all the Secured Obligations, Administrative Agent may, on one or more occasions
and in its discretion, postpone any of said sales by public announcement at the
time of sale or the time of previous postponement of sale, and no other notice
of such postponement or postponements of sale need be given, any other notice
being hereby waived; PROVIDED, HOWEVER, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
C. If, at any time when Administrative Agent shall determine
to exercise its right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933, as amended (or any similar statute then in effect) (the "ACT"),
Administrative Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by private
sale in such manner and under such circumstances as Administrative Agent may
deem necessary or advisable, but subject to the other requirements of this
SECTION 7, and shall not be required to effect such registration or to cause the
same to be effected. Without limiting the generality of the foregoing, in any
such event, Administrative Agent in its discretion (x) may, in accordance with
applicable securities laws, proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Pledged
Collateral or part thereof could be or shall have been filed under said Act (or
similar statute), (y) may approach and negotiate with a single possible
purchaser to effect such sale, and (z) may restrict such sale to a purchaser who
is an accredited investor under the Act and who will represent and agree that
such purchaser is purchasing for its own account, for investment and not with a
view to the distribution or sale of such Pledged Collateral or any part thereof.
In addition to a private sale as provided above in this SECTION 7, if any of the
Pledged Collateral shall not be freely distributable to the public
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without registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this SECTION 7, then Administrative Agent shall not be
required to effect such registration or cause the same to be effected but, in
its discretion (subject only to applicable requirements of law), may require
that any sale hereunder (including a sale at auction) be conducted subject to
restrictions:
1. as to the financial sophistication and ability
of any Person permitted to bid or purchase at any such sale;
2. as to the content of legends to be placed upon
any certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
3. as to the representations required to be made by
each Person bidding or purchasing at such sale relating to that
Person's access to financial information about Pledgor and the Pledged
Entities and such Person's intentions as to the holding of the Pledged
Collateral so sold for investment for its own account and not with a
view to the distribution thereof; and
4. as to such other matters as Administrative Agent
may, in its discretion, deem necessary or appropriate in order that
such sale (notwithstanding any failure so to register) may be effected
in compliance with the Bankruptcy Code and other laws affecting the
enforcement of creditors' rights and the Act and all applicable state
securities laws.
D. Pledgor recognizes that Administrative Agent may be unable
to effect a public sale of any or all the Pledged Collateral and may be
compelled to resort to one or more private sales thereof in accordance with
CLAUSE (C) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially
unreasonable manner solely by virtue of such sale being private. Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged
Collateral for the period of time necessary to permit the Pledged Entity to
register such securities for public sale under the Act, or under applicable
state securities laws, even if Pledgor and the Pledged Entity would agree to do
so.
E. Pledgor agrees to the maximum extent permitted by
applicable law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the benefit of any
appraisal, valuation, stay, extension, moratorium or redemption law now or
hereafter in force in order to prevent or delay the enforcement of this
Agreement, or the absolute sale of the whole or any part of the Pledged
Collateral or the possession thereof by any purchaser at any sale hereunder, and
Pledgor waives the benefit of all such laws to the extent it lawfully may do so.
Pledgor agrees that it will not interfere with any right, power and remedy of
Administrative Agent provided for in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, or the exercise or beginning of
the exercise by Administrative Agent of any one or more of such rights, powers
or remedies. No failure or delay on the part of Administrative Agent to exercise
any such right, power or
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remedy and no notice or demand which may be given to or made upon Pledgor by
Administrative Agent with respect to any such remedies shall operate as a waiver
thereof, or limit or impair Administrative Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
F. Pledgor further agrees that a breach of any of the
covenants contained in this SECTION 7 will cause irreparable injury to
Administrative Agent, that Administrative Agent shall have no adequate remedy at
law in respect of such breach and, as a consequence, agrees that each and every
covenant contained in this SECTION 7 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any defenses against
an action for specific performance of such covenants except for a defense that
the Secured Obligations are not then due and payable in accordance with the
agreements and instruments governing and evidencing such obligations.
8. WAIVER. No delay on Administrative Agent's part in exercising any
power of sale, Lien, option or other right hereunder, and no notice or demand
which may be given to or made upon Pledgor by Administrative Agent with respect
to any power of sale, Lien, option or other right hereunder, shall constitute a
waiver thereof, or limit or impair Administrative Agent's right to take any
action or to exercise any power of sale, Lien, option, or any other right
hereunder, without notice or demand, or prejudice Administrative Agent's rights
as against Pledgor in any respect.
9. ASSIGNMENT. Administrative Agent may assign, indorse or transfer any
instrument evidencing all or any part of the Secured Obligations as provided in,
and in accordance with, the Credit Agreement, and the holder of such instrument
shall be entitled to the benefits of this Agreement.
10. TERMINATION. Immediately following the Termination Date,
Administrative Agent shall deliver to Pledgor the Pledged Collateral pledged by
Pledgor at the time subject to this Agreement and all instruments of assignment
executed in connection therewith, free and clear of the Liens hereof and, except
as otherwise provided herein, all of Pledgor's obligations hereunder shall at
such time terminate.
11. LIEN ABSOLUTE. All rights of Administrative Agent hereunder, and
all obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
A. any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
B. any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from
the Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
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C. any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
D. the insolvency of any Credit Party; or
E. any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
12. RELEASE. Pledgor consents and agrees that Administrative Agent may
at any time, or from time to time, in its discretion:
A. renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
B. exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by
Administrative Agent in connection with all or any of the Secured
Obligations; all in such manner and upon such terms as Administrative
Agent may deem proper, and without notice to or further assent from
Pledgor, it being hereby agreed that Pledgor shall be and remain bound
upon this Agreement, irrespective of the value or condition of any of
the Collateral, and notwithstanding any such change, exchange,
settlement, compromise, surrender, release, renewal or extension, and
notwithstanding also that the Secured Obligations may, at any time,
exceed the aggregate principal amount thereof set forth in the Credit
Agreement, or any other agreement governing any Secured Obligations.
Pledgor hereby waives notice of acceptance of this Agreement, and also
presentment, demand, protest and notice of dishonor of any and all of
the Secured Obligations, and promptness in commencing suit against any
party hereto or liable hereon, and in giving any notice to or of making
any claim or demand hereunder upon Pledgor. No act or omission of any
kind on Administrative Agent's part shall in any event affect or impair
this Agreement.
13. REINSTATEMENT. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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14. MISCELLANEOUS.
A. Administrative Agent may execute any of its duties
hereunder by or through agents or employees and shall be entitled to advice of
counsel concerning all matters pertaining to its duties hereunder.
B. Pledgor agrees to promptly reimburse Administrative Agent
for actual out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Administrative Agent in connection with the
administration and enforcement of this Agreement.
C. Neither Administrative Agent, nor any of its respective
officers, directors, employees, agents or counsel shall be liable for any action
lawfully taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
15. THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS AND
ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF PLEDGOR), AND SHALL INURE
TO THE BENEFIT OF, AND BE ENFORCEABLE BY, ADMINISTRATIVE AGENT AND ITS
SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY
SIGNED FOR AND ON BEHALF OF ADMINISTRATIVE AGENT AND PLEDGOR.
16. SEVERABILITY. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid:
A. If to Administrative Agent, at:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx X, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Vice President
With copies to:
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General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx X, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Counsel - Capital Funding, Inc.
B. If to Pledgor, at:
c/o Hi-Rise Recycling Systems, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
With copies to:
Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (c) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. SECTION TITLES. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. BENEFIT OF LENDERS. All security interests granted or contemplated
hereby shall be for the benefit of Administrative Agent, Revolver Agent and
Lenders, and all proceeds or payments realized from the Pledged Collateral in
accordance herewith shall be applied to the Obligations in accordance with the
terms of the Credit Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be to be dated for reference as of the date first above written,
but have in fact duly executed and delivered this Agreement this day of October,
1998.
HESCO SALES, INC., a Florida corporation
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By: /s/
-------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, AS ADMINISTRATIVE AGENT
By: /s/
-------------------------------------
Name:
Title:
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