EXHIBIT 10.4
CONSOLIDATED AMENDED AND RESTATED PLEDGE AGREEMENT
THIS CONSOLIDATED AMENDED AND RESTATED PLEDGE AGREEMENT (this
"AGREEMENT") dated as of September 9, 2002 is among U.S. PLASTIC LUMBER CORP.
(the "COMPANY"), each subsidiary of the Company from time to time party hereto
(together with the Company, individually each a "PLEDGOR" and collectively, the
"PLEDGORS") and BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as Administrative
Agent (as defined below) for the Banks (as defined below).
W I T N E S S E T H:
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WHEREAS, the Company, various financial institutions (the "BANKS") and
Bank of America, as administrative agent for the Banks (in such capacity, the
"ADMINISTRATIVE AGENT"), have entered into a Credit Agreement dated as of
September 9, 2002 (as amended, restated or otherwise modified from time to time,
the "CREDIT AGREEMENT");
WHEREAS, each Pledgor other than the Company has guaranteed all of the
obligations of the Company under or in connection with the Credit Agreement
pursuant to a Guaranty dated as of September __, 2002 (the "GUARANTY");
WHEREAS, each Pledgor will benefit from the making of loans and the
issuance of letters of credit pursuant to the Credit Agreement; and
WHEREAS, the obligations of the Company under the Credit Agreement and
the other Loan Documents (as defined in the Credit Agreement) and the obligation
of each other Pledgor under the Guaranty are to be secured pursuant to this
Agreement;
NOW, THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. When used herein, (a) capitalized terms used but not
defined have the meanings assigned to such terms in the Credit Agreement and (b)
the following terms have the following meanings (such meanings to be applicable
to both the singular and plural forms of such terms):
ADMINISTRATIVE AGENT - see the recitals.
AGREEMENT - see the introductory paragraph.
BANK OF AMERICA - see the introductory paragraph.
BANKS - see the recitals.
COLLATERAL - see SECTION 2.
COMPANY - see the introductory paragraph.
CREDIT AGREEMENT - see the recitals.
DEFAULT means the occurrence of any of the following events:
(i) any Unmatured Event of Default with respect to the Company under
Section 8.1.5 of the Credit Agreement, (ii) any Event of Default or
(iii) any warranty of any Pledgor herein is untrue or misleading in any
material respect and, as a result thereof, the Administrative Agent's
security interest in any material portion of the Collateral is not
perfected or the Administrative Agent's rights and remedies with
respect to any material portion of the Collateral are materially
impaired or otherwise materially adversely affected.
GUARANTY - see the recitals.
ISSUER means the issuer of any of the shares of stock or other
securities representing all or any of the Collateral.
LIABILITIES means, (a) with respect to the Company, all
obligations of the Company to the Administrative Agent or any Bank,
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become
due, which arise under the Credit Agreement or any other Loan Document
(including, without limitation, with respect to Letters of Credit), as
the same may be amended, modified, extended or renewed from time to
time, and (b) with respect to any other Pledgor, all obligations of
such Pledgor under or in connection with the Guaranty, as the same may
be amended, modified, extended or renewed from time to time.
PLEDGOR - see the introductory paragraph.
2. PLEDGE. As security for the payment of all Liabilities, each Pledgor
hereby pledges to the Administrative Agent for the benefit of the Banks, and
grants to the Administrative Agent for the benefit of the Banks a continuing
security interest in, all of the following:
A. All of the shares of stock and other securities described
in SCHEDULE I opposite the name of such Pledgor, all of the
certificates and/or instruments representing such shares of stock and
other securities, and all cash, securities, dividends, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such shares or other securities;
B. All additional shares of stock of any of the Issuers listed
in SCHEDULE I opposite the name of such Pledgor at any time and from
time to time acquired by the Pledgor in any manner, all of the
certificates representing such additional shares, and all cash,
securities, dividends, rights and other property at any time and from
time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such shares;
C. All other property hereafter delivered to the
Administrative Agent by such Pledgor in substitution for or in addition
to any of the foregoing, all certificates and instruments representing
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or evidencing such property, and all cash, securities, interest,
dividends, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
D. All products and proceeds of all of the foregoing.
All of the foregoing are herein collectively called the "Collateral".
Each Pledgor agrees to deliver to the Administrative Agent, promptly
upon receipt and in due form for transfer (i.e., endorsed in blank or
accompanied by stock or bond powers executed in blank), any Collateral (other
than dividends which such Pledgor is entitled to receive and retain pursuant to
SECTION 5 hereof) which may at any time or from time to time be in or come into
the possession or control of such Pledgor; and prior to the delivery thereof to
the Administrative Agent, such Collateral shall be held by such Pledgor separate
and apart from its other property and in express trust for the Administrative
Agent.
3. WARRANTIES; FURTHER ASSURANCES. Each Pledgor warrants to the
Administrative Agent, as to its Collateral, for the benefit of each Bank that:
(a) such Pledgor is (or at the time of any future delivery, pledge, assignment
or transfer thereof will be) the legal and equitable owner of such Pledgor's
Collateral free and clear of all liens, security interests and encumbrances of
every description whatsoever other than the security interest created hereunder;
(b) the pledge and delivery of the Collateral pursuant to this Agreement will
create a valid perfected security interest in such Collateral in favor of the
Administrative Agent; (c) all shares of stock referred to in SCHEDULE I opposite
the name of such Pledgor are duly authorized, validly issued, fully paid and
non-assessable; (d) as to each Issuer whose name appears in SCHEDULE I opposite
the name of such Pledgor, such Pledgor's Collateral represents on the date
hereof not less than the applicable percent (as shown in SCHEDULE I) of the
total shares of capital stock issued and outstanding of such Issuer; and (e) the
information contained in SCHEDULE I opposite the name of such Pledgor is true
and accurate in all respects.
So long as any of the Liabilities shall be outstanding or any
commitment shall exist on the part of any Bank with respect to the creation of
any Liabilities, each Pledgor (i) will not, except as permitted by the Credit
Agreement or with the express prior written consent of the Administrative Agent,
sell, assign, exchange, pledge or otherwise transfer, encumber, or grant any
option, warrant or other right to purchase the stock of any Issuer which is
pledged hereunder, or otherwise diminish or impair any of its rights in, to or
under any of the Collateral; (ii) will deliver such Uniform Commercial Code
financing statements and other documents (and pay the costs of filing and
recording or re-filing and re-recording the same in all public offices
reasonably deemed necessary or appropriate by the Administrative Agent) and do
such other acts and things, all as the Administrative Agent may from time to
time reasonably request, to establish and maintain a valid, perfected security
interest in such Pledgor's Collateral (free of all other liens, claims and
rights of third parties whatsoever) to secure the performance and payment of the
Liabilities (and by its signature hereto, such Pledgor authorizes the
Administrative Agent to file any financing statements without the signature of
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such Pledgor); (iii) will execute and deliver to the Administrative Agent such
stock powers and similar documents relating to such Pledgor's Collateral,
satisfactory in form and substance to the Administrative Agent, as the
Administrative Agent may reasonably request; and (iv) will furnish the
Administrative Agent or any Bank such information concerning such Pledgor's
Collateral as the Administrative Agent or such Bank may from time to time
reasonably request, and will permit the Administrative Agent or any Bank or any
designee of the Administrative Agent or such Bank, from time to time at
reasonable times and on reasonable notice (or at any time without notice during
the existence of a Default), to inspect, audit and make copies of and extracts
from all records and all other papers in the possession of such Pledgor which
pertain to such Pledgor's Collateral, and will, upon request of the
Administrative Agent at any time when a Default has occurred and is continuing,
deliver to the Administrative Agent all of such records and papers.
4. HOLDING IN NAME OF ADMINISTRATIVE AGENT, ETC. The Administrative
Agent may from time to time after the occurrence and during the continuance of a
Default, without notice to the Pledgors, take all or any of the following
actions: (a) transfer all or any part of the Collateral into the name of the
Administrative Agent or any nominee or sub-agent for the Administrative Agent,
with or without disclosing that such Collateral is subject to the lien and
security interest hereunder, (b) appoint one or more sub-agents or nominees for
the purpose of retaining physical possession of the Collateral, (c) notify the
parties obligated on any of the Collateral to make payment to the Administrative
Agent of any amounts due or to become due thereunder, (d) endorse any checks,
drafts or other writings in the name of any Pledgor to allow collection of the
Collateral, (e) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or
compromise or renew for any period (whether or not longer than the original
period) any obligations of any nature of any party with respect thereto, and (f)
take control of any proceeds of the Collateral.
5. VOTING RIGHTS, DIVIDENDS, ETC. (a) Notwithstanding certain
provisions of SECTION 4 hereof, so long as the Administrative Agent has not
given the notice referred to in PARAGRAPH (B) below:
A. The Pledgors shall be entitled to exercise any and all
voting or consensual rights and powers and stock purchase or
subscription rights (but any such exercise by the Pledgors of stock
purchase or subscription rights may be made only from funds of the
Pledgors not comprising part of the Collateral) relating or pertaining
to the Collateral or any part thereof for any purpose; PROVIDED that
each Pledgor agrees that it will not exercise any such right or power
in any manner which would have a material adverse effect on the value
of the Collateral or any part thereof.
B. The Pledgors shall be entitled to receive and retain any
and all lawful dividends payable in respect of the Collateral which are
paid in cash by any Issuer if such dividends are permitted by the
Credit Agreement, but all dividends and distributions in respect of the
Collateral or any part thereof made in shares of stock or securities or
other property or representing any return of capital, whether resulting
from a subdivision, combination or reclassification of Collateral or
any part thereof or received in exchange for Collateral or any part
thereof or as a result of any merger, consolidation, acquisition or
other exchange of assets to which any Issuer may be a party or
otherwise or as a result of any exercise of any stock purchase or
subscription right, shall be and become part of the Collateral
hereunder and, if received by any Pledgor, shall be forthwith delivered
to the Administrative Agent in due form for transfer (i.e., endorsed in
blank or accompanied by stock or bond powers executed in blank) to be
held for the purposes of this Agreement.
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C. The Administrative Agent shall execute and deliver, or
cause to be executed and delivered, to the applicable Pledgor, all such
proxies, powers of attorney, dividend orders and other instruments as
such Pledgor may request for the purpose of enabling such Pledgor to
exercise the rights and powers which it is entitled to exercise
pursuant to CLAUSE (A) above and to receive the dividends which it is
authorized to retain pursuant to CLAUSE (B) above.
(b) Upon notice from the Administrative Agent during the existence of a
Default, and so long as the same shall be continuing, all rights and powers
which the Pledgors are entitled to exercise pursuant to SECTION 5(A)(A) hereof,
and all rights of the Pledgors to receive and retain dividends pursuant to
SECTION 5(A)(B) hereof, shall forthwith cease, and all such rights and powers
shall thereupon become vested in the Administrative Agent which shall have,
during the continuance of such Default, the sole and exclusive authority to
exercise such rights and powers and to receive such dividends. Any and all money
and other property paid over to or received by the Administrative Agent pursuant
to this PARAGRAPH (B) shall be retained by the Administrative Agent as
additional Collateral hereunder and applied in accordance with the provisions
hereof.
6. REMEDIES. Whenever a Default exists, the Administrative Agent may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code as in effect in Illinois or otherwise available to it.
Without limiting the foregoing, whenever a Default exists the Administrative
Agent (a) may, to the fullest extent permitted by applicable law, without
notice, advertisement, hearing or process of law of any kind, (i) sell any or
all of the Collateral, free of all rights and claims of any Pledgor therein and
thereto, at any public or private sale or brokers' board and (ii) bid for and
purchase any or all of the Collateral at any such public sale and (b) shall have
the right, for and in the name, place and stead of the applicable Pledgor, to
execute endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral. Each
Pledgor hereby expressly waives, to the fullest extent permitted by applicable
law, any and all notices, advertisements, hearings or process of law in
connection with the exercise by the Administrative Agent of any of its rights
and remedies during the continuance of a Default. Any notification of intended
disposition of any of the Collateral shall be deemed reasonably and properly
given if given at least ten (10) days before such disposition. Any proceeds of
any of the Collateral may be applied by the Administrative Agent to the payment
of expenses in connection with the Collateral, including, without limitation,
reasonable attorneys' fees and legal expenses, and any balance of such proceeds
may be applied by the Administrative Agent toward the payment of such of the
Liabilities, and in such order of application, as the Administrative Agent may
from time to time elect (and, after payment in full of all Liabilities, any
excess shall be delivered to the applicable Pledgor or as a court of competent
jurisdiction shall direct).
The Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with any sale of Collateral as it may be
advised by counsel is necessary in order to (a) avoid any violation of
applicable law (including, without limitation, compliance with such procedures
as may restrict the number of prospective bidders and purchasers and/or further
restrict such prospective bidders or purchasers to persons or entities who will
represent and agree that they are purchasing for their own account for
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investment and not with a view to the distribution or resale of such Collateral)
or (b) obtain any required approval of the sale or of the purchase by any
governmental regulatory authority or official, and each Pledgor agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner and that the Administrative Agent
shall not be liable or accountable to any Pledgor for any discount allowed by
reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
7. GENERAL. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral if it takes
such action for that purpose as the applicable Pledgor shall request in writing,
but failure of the Administrative Agent to comply with any such request shall
not of itself be deemed a failure to exercise reasonable care, and no failure of
the Administrative Agent to preserve or protect any rights with respect to the
Collateral against prior parties, or to do any act with respect to preservation
of the Collateral not so requested by any Pledgor, shall be deemed a failure to
exercise reasonable care in the custody or preservation of any Collateral.
No delay on the part of the Administrative Agent in exercising any
right, power or remedy shall operate as a waiver thereof, and no single or
partial exercise of any such right, power or remedy shall preclude any other or
further exercise thereof, or the exercise of any other right, power or remedy.
No amendment, modification or waiver of, or consent with respect to, any
provision of this Agreement shall be effective unless the same shall be in
writing and signed and delivered by the Administrative Agent, and then such
amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
All obligations of the Pledgors and all rights, powers and remedies of
the Administrative Agent and the Banks expressed herein are in addition to all
other rights, powers and remedies possessed by them, including, without
limitation, those provided by applicable law or in any other written instrument
or agreement relating to any of the Liabilities or any security therefor.
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
All notices hereunder shall be in writing (including facsimile
transmission) and shall be sent to the applicable party (a) in the case of the
Administrative Agent, the Company, to its address set forth in or determined
pursuant to the Credit Agreement, and (b) in the case of each other Pledgor, to
its address set forth in or determined pursuant to the Security Agreement.
Notices sent by facsimile transmission shall be deemed to have been given when
sent with confirmation of receipt; notices sent by mail shall be deemed to have
been given five Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery or overnight
courier shall be deemed to have been given when received.
This Agreement shall be binding upon the Pledgors and the
Administrative Agent and their respective successors and assigns (provided that
no Pledgor may assign its obligations hereunder without the prior written
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consent of the Administrative Agent), and shall inure to the benefit of each
Pledgor and the Administrative Agent and the successors and assigns of the
Administrative Agent.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together constitute
but one and the same Agreement. At any time after the date of this Agreement,
one or more additional Persons may become parties hereto by executing and
delivering to the Administrative Agent a counterpart of this Agreement.
Immediately upon such execution and delivery (and without any further action),
each such additional Person will become a party to, and will be bound by all of
the terms of, this Agreement.
This Agreement consolidates, amends and restates various pledge
agreements between the Administrative Agent and the other original signatories
hereto. Nothing contained in this Agreement shall be construed to release,
cancel, terminate or otherwise adversely affect all or any part of any lien,
claim, right or security interest heretofore granted to or retained by the
Administrative Agent with respect to any Collateral heretofore or hereafter
acquired by a Pledgor.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PLEDGOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH PLEDGOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, (A) WITH RESPECT TO THE COMPANY, TO ITS ADDRESS SET FORTH IN OR
DETERMINED PURSUANT TO THE CREDIT AGREEMENT, AND (B) IN THE CASE OF EACH OTHER
PLEDGOR, TO ITS ADDRESS SET FORTH IN OR DETERMINED PURSUANT TO THE SECURITY
AGREEMENT, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH
PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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EACH OF EACH PLEDGOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE
BENEFITS HEREOF) EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first written above.
U.S. PLASTIC LUMBER CORP.
By: /s/ Xxxxx Xxxxxxx
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Name Printed: Xxxxx Xxxxxxx
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Title
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U.S. PLASTIC LUMBER LTD.
By: /s/ Xxxxx Xxxxxxx
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Name Printed: Xxxxx Xxxxxxx
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Title
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U.S. PLASTIC LUMBER FINANCE CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name Printed: Xxxxx Xxxxxxx
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Title
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BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxxx Xxxx
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Name Printed: Xxxxxxxx Xxxx
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Title
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