EXHIBIT 10.15
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated November 8, 1999 ("Pledge Agreement"), made by
Xxxxxx Xxxxxxxxx ("Pledgor") to Quality Distribution, Inc. (the "Pledgee").
WHEREAS, Pledgor is an officer of Pledgee, a Florida corporation, and
owns or is purchasing on the date hereof an aggregate of 20,000 issued and
outstanding shares of common stock, $.01 par value per share, of Pledgee (the
"QDI Common Stock");
WHEREAS, by Limited Recourse Secured Promissory Note (a copy of which
is attached hereto and incorporated herein as Exhibit A) dated of even date
herewith, the Pledgor has agreed on a limited recourse basis to repay to the
Pledgee the amount of $800,000, together with interest, in the manner set forth
therein (the "Note").
WHEREAS, it is a requirement of the Note that the Pledgor shall have
granted the security interests contemplated by this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Pledgee to provide the loan the subject of the Note, the Pledgor and the
Pledgee hereby agree as follows:
SECTION 1. PLEDGE.
Pledgor hereby pledges and grants a security interest to the Pledgee in
the following (the "Pledged Collateral"):
(a) every share of QDI Common Stock or option to purchase
shares of QDI Common Stock now held, or hereafter acquired, by Pledgor
(the "Pledged Securities") and the certificates) representing the
Pledged Securities, and all dividends, cash, instruments 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
Securities;
(b) all proceeds of the sale of any and all of the Pledged
Securities.
SECTION 2. SECURITY FOR OBLIGATIONS.
The Pledged Collateral secures the prompt and complete payment and
performance when due of all of the obligations of the Pledgor under the Note
(the "Secured Obligations").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL.
All certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by the Pledgee pursuant hereto 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 Pledgee. In
addition, the Pledgee shall have the right at any time to exchange certificates
or instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
The Pledgor represents and warrants to the Pledgee as follows:
(a) The Pledgor is the sole legal and beneficial owner of the
Pledged Securities, which Pledgor has not previously sold, assigned or
transferred and which is free and clear of any lien, option, right,
right of preemption or other charge or encumbrance, except for the
security interest created by this Pledge Agreement.
(b) The pledge of the Pledged Collateral pursuant to this
Pledge Agreement, upon delivery of the stock certificate as provided in
Section 3 hereof, creates a valid and perfected first priority security
interest in the Pledged Securities securing the payment of the Secured
Obligations.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental or regulatory authority or
any person is required either (i) for the pledge by the Pledgor of the
Pledged Collateral pursuant to this Pledge Agreement or for the
execution, delivery or performance of the Pledge Agreement by the
Pledgor, or (ii) for the exercise by the Pledgee of the voting or other
rights provided for in this Pledge Agreement or the remedies in respect
of the Pledged Collateral pursuant to this Pledge Agreement.
(d) The Note and this Pledge Agreement is a legal, valid and
binding obligation of the Pledgor, enforceable against the Pledgor in
accordance with its respective terms (but subject to the limitation on
personal liability stated in the Note).
SECTION 5. FURTHER ASSURANCES.
The Pledgor agrees that at any time and from time to time, at the
expense of the Pledgor, it will promptly execute and deliver all reasonable
further instruments and documents, and take all reasonable further action, that
may be necessary or desirable, or that the Pledgee may request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Pledgee to exercise and enforce its rights and remedies
hereunder with respect to any Pledged Collateral.
SECTION 6. VOTING RIGHTS; DIVIDENDS: ETC.
(a) So long as no Event of Default (as defined below), giving effect to
any applicable cure periods, shall have occurred:
(i) The Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral
or any part thereof for any purpose not inconsistent with the terms of
this Pledge Agreement; provided, however, that the Pledgor shall not
exercise or refrain from exercising any such right if, in the Pledgee's
sole judgment, such action would modify or in any way adversely change
Pledgor's or
Pledgee's rights under the Pledged Securities or any part thereof.
Notwithstanding the foregoing, any and all
(A) dividends paid or payable 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 Collateral in connection
with a total liquidation or dissolution, and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange for, any
Pledged Collateral, shall be, and shall be forthwith delivered to the
Pledgee to hold as, Pledged Collateral and shall, if received by
Pledgor, be received in trust for the benefit of the Pledgee, be
segregated from the other property or funds of Pledgor, and be
forthwith delivered to the Pledgee as Pledged Collateral in the same
form as so received (with any necessary endorsement).
(b) Upon the occurrence of an "Event of Default" which shall
mean anyone of the following events:
(i) Any representation or warranty made by the
Pledgor in the Note or this Pledge Agreement shall prove to be
incorrect in any material respect as of the time when made;
(ii) The Pledgor shall be in material breach of any
covenant or agreement set forth in the Note or this Pledge
Agreement and the breach is not cured within 10 days after
notice to Pledgor;
(iii) The Pledged Collateral or any interest therein
shall be sold, assigned, transferred or otherwise disposed of,
or any option or right shall be granted with respect to the
Pledged Collateral or any interest therein, or the Pledged
Collateral or any interest therein shall be pledged, mortgaged
or otherwise encumbered in any manner other than in favor of
the Pledgee as contemplated in this Pledge Agreement;
(iv) The Pledgor shall fail to make payment when due
of any principal or interest with respect to the Note and the
payment failure is not cured within 10 days after notice to
Pledgor; or
(v) The Pledgor shall become insolvent or bankrupt,
make an assignment for the benefit of its creditors or admit
in writing its inability to, or be generally unable to, pay
its debts as they become due, or the Pledgor shall have a
trustee, receiver or custodian appointed in respect of it or
all or a substantial portion of its property or to take
advantage of any law relating to bankruptcy, insolvency,
reorganization, liquidation or winding up with respect to it.
(A) Upon the request of the Pledgee, all
rights of Pledgor to exercise the voting and other
consensual rights which it would otherwise be
entitled to exercise pursuant to Section 6(a)(i) and
to receive the dividends, principal or interest
payments which it would otherwise be authorized to
receive and retain pursuant to Section 6(a)(ii) shall
cease, and all such rights shall thereupon become
vested in the Pledgee, and the Pledgee shall
thereupon have the sole right to exercise such voting
and other consensual rights and to receive and hold
as Pledged Collateral such dividends, principal or
interest payments.
(B) All dividends, principal or interest
payments which are received by Pledgor contrary to
the provisions of paragraph (i) of this Section 6(b)
shall be received in trust for the benefit of the
Pledgee, shall be segregated from other funds of
Pledgor and shall be forthwith paid over to the
Pledgee as Pledged Collateral in the same form as so
received (with any necessary endorsement).
SECTION 7. TRANSFERS AND OTHER LIENS; ADDITIONAL SHARES.
Pledgor agrees that it will neither (i) sell or otherwise dispose of,
or grant any option with respect to, any of the Pledged Collateral, nor (ii)
create or permit to exist any security interest, or other charge or encumbrance
upon or with respect to any of the Pledged Collateral, except for the security
interest under this Pledge Agreement.
SECTION 8. PLEDGEE APPOINTED ATTORNEY-IN-FACT.
Pledgor hereby appoints the Pledgee, Pledgor's attorney-in-fact, with
full authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, to take any action and to execute any instrument which the Pledgee
may deem necessary or advisable to accomplish the purposes of this Pledge
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to Pledgor representing any dividend, interest payment
or other distribution or payment in respect of the Pledged Collateral or any
part thereof and to give full discharge for the same.
SECTION 9. PLEDGEE MAY PERFORM.
If Pledgor fails to perform any agreement contained herein, the Pledgee
may itself perform or cause performance of, such agreement, and the expenses of
the Pledgee incurred in connection therewith shall be payable by Pledgor under
Section 12.
SECTION 10. THE PLEDGEE'S DUTIES AND REASONABLE CARE.
The powers conferred on the Pledgee hereunder are solely to protect its
interests in the Pledged Collateral and shall not impose any duty upon it to
exercise any such powers. The Pledgee 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 Pledgee accords its own property, it being understood that the
Pledgee shall have no responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Pledged Collateral,
whether or not the Pledgee has or is deemed to have knowledge of such matters,
or (b) taking any necessary steps to preserve rights against any parties with
respect to any Pledged Collateral.
SECTION 11. REMEDIES.
If any Event of Default shall have occurred:
(a) The Pledgee may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the Uniform Commercial Code (the "Code")
in effect in the State of New York at that time, and the Pledgee may
also, without notice, except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of the
Pledgee's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Pledgee may deem
commercially reasonable. Pledgor agrees that, to the extent notice of
sale shall be required by law, at least fifteen (15) calendar days'
notice to the Pledgor of the time 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 such
sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) Any cash held by the Pledgee as Pledged Collateral and all
cash proceeds received by the Pledgee in respect of any sale of,
collection from, or other realization upon all yr any part of the
Pledged Collateral may, in the discretion of the Pledgee, be held by
the Pledgee as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Pledgee pursuant
to Section 12) in whole or in part by the Pledgee against, all or any
part of the Secured Obligations in such order as the' Pledgee shall
elect. Any surplus of such cash or cash proceeds held by the Pledgee
and remaining after payment in full of all the Secured Obligations
shall be paid over to the Pledgor or to whosoever may be lawfully
entitled to receive such surplus.
SECTION 12. INDEMNITY AND EXPENSES.
Pledgor hereby agrees to indemnify the Pledgee from and against any and
all claims, losses, damages and liabilities growing out of or resulting from
this Pledge Agreement or the Note (including, without limitation, enforcement of
this Pledge Agreement or the Note), except to the extent such claims, losses,
damages, or liabilities result from Pledgee's gross negligence or willful
misconduct; provided that the Pledgor's personal liability will be limited to'
the Additional Amount (as defined in the Note).
SECTION 13. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Pledge Agreement or the
Note, nor consent to any departure by the Pledgor herefrom or therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Pledgor and the Pledgee, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 14. ADDRESSES FOR NOTICES.
All notices and other communications provided for hereunder or under
the Note shall be in writing and mailed or delivered by messenger or sent by
facsimile, addressed to it at the following address:
if to the Pledgor: Xxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000
if to the Pledgee: Quality Distribution, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: General Counsel
with a copy to Apollo Management, L.P.
c/o Xxxx Xxxxxx
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or at such other address as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
Section. All such notices and other communications shall, when mailed or
delivered by messenger or sent by facsimile, respectively, be effective when
received in the mails or delivered to the messenger or sent by facsimile,
respectively, addressed as aforesaid.
Continuing Security Interest; Transfer of Notes. This Pledge Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) remain in full force and effect until performance and payment in full of the
Secured Obligations, (ii) binding upon the Pledgor, its successors and assigns,
and (iii) inure to the Pledgee and its respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), the
Pledgee may assign or otherwise transfer all or a portion of its rights or
obligations under this Pledge Agreement or the Note, upon notice to the LLC, the
Company and the Pledgor, to any transferee (each an "Assignee"), and such other
Assignee shall thereupon become vested with all the benefits in respect of this
Pledge Agreement and the Note granted to the Pledgee herein, therein or
otherwise. Upon the payment and performance in full of the Secured Obligations,
Pledgor shall be entitled to the return, upon its request and at its expense, of
such of the Pledged Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof.
SECTION 15. GOVERNING LAW; TERMS.
This Pledge Agreement and the Note shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 16. MISCELLANEOUS.
(a) This Pledge Agreement is in addition to and not in limitation of
any other rights and remedies the Pledgee may have by virtue of any other
instrument or agreement heretofore, contemporaneously herewith or hereafter
executed by the Pledgor or any other person or Assignee or by law or otherwise.
If any provision of this Pledge Agreement or the Note is contrary to applicable
law, such provision shall be deemed ineffective without invalidating the
remaining provisions hereof. The Pledgee shall not, by any act, delay, omission
or otherwise, be deemed to have waived any of its rights or remedies hereunder.
(b) The Pledgee agrees it will not proceed against the Pledgor
personally until it has fully exercised its rights under this Pledge Agreement.
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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 set forth
above.
PLEDGOR:
/S/ XXXXXX XXXXXXXXX
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Xxxxxx Xxxxxxxxx
PLEDGEE:
QUALITY DISTRIBUTION, INC.
By:
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Name:
Title:
