STOCK PLEDGE AGREEMENT
(US Subsidiaries)
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and
entered into as of this 30th day of January, 1998 by and between
EACH OF THE UNDERSIGNED direct and indirect subsidiaries of
Xxxxxx Industries, Inc. ("Xxxxxx"), a Tennessee corporation (the
"Pledgors", and each individually a "Pledgor"), and NATIONSBANK
OF TENNESSEE, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United
States, as Agent (the "Agent") for each of the financial
institutions (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Xxxxxx and to Xxxxxx Industries Towing Equipment Inc., a Delaware
company ("Xxxxxx Towing," and together with Xxxxxx, the
"Borrower"), certain credit facilities, including a revolving
credit facility with a letter of credit sublimit and a swing line
sublimit, pursuant to the Credit Agreement dated as of January
30, 1998 among the Borrower, the Agent and the Lenders (as from
time to time amended, revised, modified, supplemented, or amended
and restated the "Credit Agreement"); and
WHEREAS, all or some of the Pledgors have entered into the
Credit Agreement or that certain Guaranty Agreement of even date
herewith in favor of the Agent for the benefit of the Lenders;
and
WHEREAS, as collateral security for the payment and
performance of the Borrower's Obligations and the Guarantors'
Obligations (as defined in the Guaranty), each Pledgor is willing
to pledge and grant to the Agent for the benefit of the Lenders a
security interest in all of the issued and outstanding shares of
capital stock, whether now in existence or hereafter issued, of
each of its subsidiaries which are Domestic Subsidiaries, and 65%
(or such lesser percentage as such Pledgor shall own) of the
issued and outstanding shares of capital stock or equivalent
indicia of ownership under the law or practice of any foreign
jurisdiction, whether now in existence or hereafter issued, of
each of its subsidiaries which are Direct Foreign Subsidiaries,
all of which are required to be subject to a Pledge Agreement
pursuant to the Credit Agreement (the "Pledged Stock"), including
without limitation the Pledged Stock in such Subsidiaries more
particularly described on SCHEDULE I hereto (such Subsidiaries,
together with all other Subsidiaries whose capital stock may be
required to be subject to a Pledge Agreement from time to time,
are hereinafter referred to collectively as the "Pledged
Subsidiaries"); and
WHEREAS, the Lenders are unwilling to enter into the Loan
Documents unless each Pledgor enters into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents, to extend credit to the Borrower
and to make loans and advances and issue letters of credit and in
consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
1. PLEDGE OF STOCK; OTHER COLLATERAL.
(a) As collateral security for the payment and performance
by the Borrower of its now or hereafter existing Obligations and
by the Pledgors of their now or hereafter existing liabilities
and obligations under the Guaranty (collectively with the
Obligations, the "Secured Obligations"), each Pledgor hereby
pledges and collaterally assigns to the Agent for the benefit of
the Lenders, and grants to the Agent for the benefit of the
Lenders a first priority lien and security interest in, the
Pledged Stock and all of the following:
(i) all cash, securities, dividends, rights and
other property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Pledged Stock, other than cash dividends permitted to be
retained by the Pledgors under SECTION 9 hereof;
(ii) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Pledged Stock; and
(iii) all proceeds of any of the foregoing.
All such Pledged Stock, certificates, instruments, cash,
securities, interest, dividends, rights and other property
referred to in this SECTION 1, other than cash dividends issued
in respect of such Pledged Stock that are permitted to be
retained by the Pledgors under SECTION 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged
Stock described on SCHEDULE I in effect from time to time is
currently owned by the respective Pledgors and represented by the
stock certificates listed on SCHEDULE I hereto. Certificates
evidencing all the Pledged Stock on the Closing Date, together
with stock powers duly executed in blank by the Pledgors, have
been delivered to the Agent.
(b) Each Pledgor agrees to deliver all the Collateral to
the Agent at such location or locations as the Agent shall from
time to time designate by written notice pursuant to SECTION 25
hereof for its custody at all times until termination of this
Agreement, together with such instruments of assignment and
transfer as requested by the Agent.
(c) Each Pledgor agrees to deliver all share certificates,
documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Agent may reasonably request
to carry out the terms of this Agreement or to protect or enforce
the lien and security interest in the Collateral hereunder
granted thereby to the Agent for the benefit of the Lenders and
further agrees to do and cause to be done all things determined
by the Agent to be reasonably necessary to perfect and keep in
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full force the Lien in the Collateral hereunder granted thereby
in favor of the Agent for the benefit of the Lenders, including,
but not limited to, the prompt payment of all reasonable out-of-
pocket fees and expenses incurred in connection with any filings
made to perfect or continue the lien and security interest in the
Collateral hereunder granted thereby in favor of the Agent for
the benefit of the Lenders. Each Pledgor agrees to make
appropriate entries upon its books and records (including without
limitation its stock record and transfer books) disclosing the
Lien in the Collateral hereunder granted thereby to the Agent for
the benefit of the Lenders hereunder.
(d) All advances, charges, reasonable costs and reasonable
expenses, including reasonable attorneys' fees, incurred or paid
by any Secured Party in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement thereof, shall
become a part of the Secured Obligations and shall be paid to the
Agent for the benefit of the Lenders by the Pledgors immediately
upon demand therefor, with interest thereon until paid in full at
the Default Rate for Base Rate Loans.
2. STATUS OF PLEDGED STOCK. Each Pledgor hereby represents
and warrants to the Agent for the benefit of the Lenders that (i)
all of the shares of Pledged Stock are validly issued and
outstanding, fully paid and nonassessable and constitute all the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries of such Pledgor which are Domestic
Subsidiaries and at least 65% (or such lesser percentage as is
owned by such Pledgor and indicated on SCHEDULE I) of the
authorized, issued and outstanding shares of common stock of each
of the Pledged Subsidiaries of such Pledgor which are Direct
Foreign Subsidiaries, (ii) such Pledgor is the registered and
record and beneficial owner of such Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on
pledge or transfer (other than the Liens created under the Loan
Documents and restrictions imposed by applicable federal or state
securities law), (iii) such Pledgor has full corporate power,
legal right and lawful authority to execute this Agreement and to
pledge, assign and transfer such Pledged Stock in the manner and
form hereof, and (iv) the pledge, assignment and delivery of such
Pledged Stock by such Pledgor to the Agent for the benefit of the
Lenders pursuant to this Agreement creates, together with the
delivery of the certificates evidencing such Pledged Stock, which
delivery has heretofore been accomplished, a valid and perfected
first priority security interest in such Pledged Stock in favor
of the Agent for the benefit of the Lenders, securing the payment
of the Secured Obligations. Except as permitted under SECTIONS
9.5 or 9.7 of the Credit Agreement, none of the Pledged Stock
(nor any interest therein or thereto) shall be sold, transferred
or assigned, nor any Lien created therein, without the Agent's
prior written consent. Each Pledgor covenants with the Agent for
the benefit of the Lenders that it shall at all times cause the
Pledged Stock to be represented by the certificates now and
hereafter delivered to the Agent in accordance with SECTION 1
hereof and that it shall not cause, suffer or permit any of the
Pledged Subsidiaries to issue any capital stock, or securities
convertible into, or exercisable or exchangeable for, capital
stock, at any time during the term of this Agreement other than
to the Pledgors and subject to this Agreement pursuant to SECTION
23 hereof.
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3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the
Collateral, or otherwise, other than the obligation to deal with
the Collateral while in its possession in the same manner as the
Agent deals with similar securities or property held as
collateral for loans.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate
reserves have been established in accordance with GAAP and
evidenced to the satisfaction of the Agent and provided further
that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of the
Pledgors to so pay or contest such taxes, charges, Liens or
assessments, the Agent at its option may pay or contest any of
them (the Agent having the sole right to determine the legality
or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments).
4. DEFAULT. Upon the occurrence and during the
continuance of any Event of Default, the Agent is given full
power and authority, then or at any time thereafter, to sell,
assign and deliver or collect the whole or any part of the
Collateral, or any substitute therefor or any addition thereto,
in one or more sales, with or without any previous demands or
demand of performance or, to the extent permitted by law, notice
or advertisement, in such order as the Agent may elect; and any
such sale may be made either at public or private sale at the
Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Agent may
reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own
right free from any claim of the Pledgors or right of redemption.
Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent per-
missible by law and the Pledgors acknowledge that the Collateral
is of a type customarily sold on a recognized market. Any sale
hereunder may be conducted by an auctioneer or any officer or
agent of the Agent. Each Pledgor recognizes that the Agent may be
unable to effect a public sale of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act"), and applicable law, and may be
otherwise delayed or adversely affected in effecting any sale by
reason of present or future restrictions thereon imposed by
governmental authorities, and that as a consequence of such
prohibitions and restrictions the Agent may be compelled (i) to
resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to
acquire the stock for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to
seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or
group. Each Pledgor agrees and acknowledges that private sales
so made may be at prices and upon terms less favorable to the
Pledgors than if such Collateral was sold either at public sales
or at private sales not subject to other regulatory restrictions,
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and that the Agent has no obligation to delay the sale of any of
the Collateral for the period of time necessary to permit the
issuer of such Collateral to register or otherwise qualify the
Pledged Stock, even if such issuer would agree to register or
otherwise qualify for public sale under the Securities Act or
applicable state law. Such Pledgor agrees that private sales made
under the foregoing circumstances will not, for that reason, be
deemed to have been made in a manner which is not commercially
reasonable. Each Pledgor hereby acknowledges that a ready market
may not exist for the Pledged Stock since it is not traded on a
national securities exchange or quoted on an automated quotation
system and agrees and acknowledges that in such event the Pledged
Stock may be sold for an amount less than a pro rata share of the
fair market value of the issuer's assets minus its liabilities.
In addition to the foregoing, the Lenders may exercise such other
rights and remedies as may be available under the Loan Documents,
at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of
the Collateral hereunder and all sums received or collected
hereunder from or on account of such Collateral shall be applied
to the payment of expenses incurred or paid by the Agent in
connection with any holding, sale, transfer or delivery of the
Collateral, to the payment of any other costs, charges,
reasonable attorneys' fees or expenses mentioned herein, and to
the payment of the Secured Obligations or any part thereof, all
in such order and manner as is provided in SECTION 10.5 of the
Credit Agreement and otherwise as the Agent may determine and as
permitted by applicable law. The Agent shall, upon satisfaction
in full of all such Secured Obligations, pay any balance to the
Pledgors or otherwise as may be required by applicable law.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Agent shall not
be under any duty or obligation whatsoever to make or give any
presentments, demands for performances, notices of nonper-
formance, protests, notice of protest or notice of dishonor in
connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or
evidences of indebtedness which constitute in whole or in part
the Secured Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the
Agent as such Pledgor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default. Without limiting the
generality of the foregoing, upon the occurrence and during the
continuance of an Event of Default, the Agent shall have the
right and power to receive, endorse and collect all checks and
other orders for the payment of money made payable to such
Pledgor representing any dividend, interest payment, principal
payment or other distribution payable or distributable in respect
of, or otherwise constituting, the Collateral or any part thereof
and to give full discharge for the same.
8. WAIVER BY PLEDGORS. Each Pledgor waives (to the extent
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permitted by applicable law) any right to require the Agent or
any Lender or any other obligee of the Secured Obligations to (a)
proceed against any other Pledgor or any Person, including
without limitation any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations,
or (c) pursue any other remedy in its power; and waives (to the
extent permitted by applicable law) any defense arising by reason
of any disability or other defense of any other Pledgor or any
other Person, including without limitation any Guarantor, or by
reason of the cessation from any cause whatsoever of the
liability of any other Pledgor or any other Person, including
without limitation, any Guarantor. The Agent may at any time
deliver (without representation, recourse or warranty) the
Collateral or any part thereof to any Pledgor who has an interest
therein and the receipt thereof by such Pledgor shall be a
complete and full acquittance for the Collateral so delivered,
and the Agent shall thereafter be discharged from any liability
or responsibility therefor.
9. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to
the Pledged Stock shall be subject to the pledge hereunder,
except for cash dividends permitted to be made under the Credit
Agreement, which may be retained by the Pledgors so long as no
Event of Default shall have occurred and be continuing, and shall
be retained by the Pledgors free from any Lien hereunder. Upon
the occurrence and during the continuance of any Event of
Default, all such cash and other dividends shall be promptly
delivered to the Agent if requested by the Agent (together, if
the Agent shall request, with stock powers or instruments of
assignment duly executed in blank affixed to any stock
certificate or other negotiable document or instrument so
distributed) to be held, released or disposed of by it hereunder
or, at the option of the Agent, to be applied to the Secured
Obligations as they become due.
(b) So long as no Event of Default shall have occurred and
be continuing, the registration of the Collateral in the name of
any Pledgor shall not be changed and the Pledgors shall be
entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to receive and retain dividends upon the Collateral
shall cease and shall thereupon be vested in the Agent for the
benefit of the Lenders.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Agent, all rights of the
Pledgors to exercise the voting or consensual rights and powers
which it is authorized to exercise with respect to the Collateral
pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to), at its request, cause
such Collateral to be registered in the name of the Agent or its
nominee or agent for the benefit of the Lenders and exercise such
voting or consensual rights and powers as appertain to ownership
of such Collateral, and to that end each Pledgor hereby appoints
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the Agent as its proxy, with full power of substitution, to vote
and exercise all other rights as a shareholder with respect to
the Pledged Stock hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with
an interest and is irrevocable prior to termination of this
Agreement as set forth in SECTION 22 hereof, and each Pledgor
hereby agrees to provide such further proxies as the Agent may
request; provided, however, that the Agent in its discretion may
from time to time refrain from exercising, and shall not be
obligated to exercise, any such voting or consensual rights or
such proxy.
10. POWER OF SALE. Until all the Secured Obligations shall
have irrevocably been paid in full, the power of sale and other
rights, powers and remedies granted to the Agent for the benefit
of the Lenders hereunder shall continue to exist and may be
exercised by the Agent at any time and from time to time
irrespective of the fact that any Secured Obligations or any part
thereof may have become barred by any statute of limitations or
that the liability of any Pledgor may have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to
the Agent for the benefit of the Lenders by this Agreement shall
be in addition to all rights, powers and remedies given to any
Lenders by virtue of any statute or rule of law. Any forbearance
or failure or delay by the Agent in exercising any right, power
or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any
right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Lenders
shall continue in full force and effect until such right, power
or remedy is specifically waived by the Required Lenders by an
instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given
by each Pledgor to the Agent, for the benefit of the Secured
Parties, to make releases (whether in whole or in part) of all or
any part of the Collateral agreeable to the Agent without notice
to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not
impair in any manner the validity of or priority of the Liens and
security interests in the remaining Collateral conferred under
such documents, nor release such Pledgor from personal liability
for the Secured Obligations hereby secured. Notwithstanding the
existence of any other security interest in the Collateral held
by the Agent, for the benefit of the Secured Parties, the Agent
shall have the right to determine the order in which any or all
of the Collateral shall be subjected to the remedies provided in
this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Agent, for the
benefit of the Secured Parties, in the manner provided in SECTION
10.5 of the Credit Agreement. Each Pledgor hereby waives any and
all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law
or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of the Pledgors hereunder,
shall be absolute and unconditional irrespective of:
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(a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Secured
Obligations;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any 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
relating to any of the Secured Obligations;
(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; or
(d) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Pledgors in respect of the Secured Obligations or of this
Agreement.
14. DEFINITIONS. All terms used herein unless otherwise
defined in the Credit Agreement shall be defined in accordance
with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in Georgia, and such definitions are
hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT; WAIVERS. This Agreement, together
with the Credit Agreement, the Guaranty Agreement and other Loan
Documents, constitutes and expresses the entire understanding
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Neither this
Agreement nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto. No waiver of
any provision of this Pledge Agreement nor consent to any
departure by any Pledgor herefrom shall in any event be effective
unless the same shall be in writing and signed by the Agent, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given.
16. FURTHER ASSURANCES. Each Pledgor agrees at its own
expense to do such further acts and things, and to execute and
deliver such additional conveyances, assignments, financing
statements, agreements and instruments, as the Agent may at any
time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any
part thereof or in order better to assure and confirm unto the
Agent its rights, powers and remedies for the benefit of the
Lenders hereunder. Each Pledgor hereby consents and agrees that
the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence
of the right of the Agent, on behalf of the Lenders, to exercise
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its rights hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by the Pledgors or any other Person
to any of such issuers or obligors. The Agent may from time to
time, at its option, perform any act which any Pledgor agrees
hereunder to perform and which such Pledgor shall fail to perform
after being requested in writing to so perform and the Agent may
from time to time take any other action which the Agent
reasonably deems necessary for the maintenance, preservation or
protection of any of the Pledged Collateral or of the security
interest therein.
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of the parties hereto, and to their
respective successors and assigns, except that no Pledgor shall
assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the Agent as Collateral
under this Agreement. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under
Swap Agreements shall be deemed to be Secured Obligations secured
hereby, and each Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be a Secured Party
hereunder.
19. SEVERABILITY. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
20. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and all the counterparts taken together
shall be deemed to constitute one and the same instrument.
21. EXPENSES; INDEMNIFICATION. Upon demand, each Pledgor
will pay to the Agent the amount of any and all expenses,
including the reasonable fees and disbursements of its counsel
and of any experts, which the Agent may incur in connection with
the administration of this Pledge Agreement or any instrument
relating hereto, the removal, custody, preservation, use or
operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, the exercise or
enforcement of any of the rights of the Agent and the Secured
Parties with respect to Collateral, the failure by such Pledgor
to perform or observe any of the provisions hereof or the
advancement of any funds in connection with actions taken
pursuant to this Agreement. Without limitation of SECTION 12.9
of the Credit Agreement or any other indemnification provision in
any Loan Document, each Pledgor hereby jointly and severally
covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all out-of-pocket
liabilities, costs, expenses or disbursements of any kind or
nature whatsoever arising in connection with any claim or
litigation by any Person resulting from the execution, delivery,
enforcement, performance and administration of this Agreement or
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the Loan Documents, or the transactions contemplated hereby or
thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Pledgor has incurred any
obligation (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Pledgor shall have no
obligation hereunder with respect to indemnified liabilities
resulting from the willful misconduct or gross negligence of the
Agent or any Lender. The agreements in this subsection shall
survive repayment of all Secured Obligations or termination or
expiration of this Agreement.
22. TERMINATION. This Agreement and all obligations of the
Pledgors hereunder shall terminate on the irrevocable payment in
full of the Secured Obligations, at which time the Liens and
rights granted to the Agent for the benefit of the Lenders
hereunder shall automatically terminate and no longer be in
effect, and the Collateral shall automatically be released from
the Liens created hereby. Upon such termination of this
Agreement, the Agent shall, at the sole expense of the Pledgors,
deliver to the Pledgors the certificates evidencing the Pledged
Stock (and any other property received as a dividend or
distribution or otherwise in respect of the Pledged Stock then in
its custody), together with any cash then constituting the
Collateral, not then sold or otherwise disposed of in accordance
with the provisions hereof and take such further actions as may
be necessary to effect the same and as shall be reasonably
acceptable to the Agent.
23. ADDITIONAL SHARES. If any Pledgor shall acquire or
hold (a) any additional shares of capital stock of any Pledged
Subsidiary or (b) any shares of capital stock of any Subsidiary
not listed on SCHEDULE I hereto which are required to be subject
to a Pledge Agreement pursuant to the terms of ARTICLE IV or any
other provision of the Credit Agreement (any such shares
described in clauses (a) or (b) above being referred to herein as
the "Additional Shares"), such Pledgor shall deliver to the Agent
for the benefit of the Lenders (i) a revised SCHEDULE I hereto
reflecting the ownership and pledge of such Additional Shares and
(ii) a Stock Pledge Agreement Supplement in the form of Exhibit A
hereto with respect to such Additional Shares duly completed and
signed by such Pledgor. Each Pledgor shall comply with the
requirements of this SECTION 23 concurrently with the acquisition
of any such Additional Shares in the case of shares described in
clause (a) above, and within the time period specified in ARTICLE
IV or elsewhere in the Credit Agreement with respect to shares
described in clause (b) above.
24. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement, and the issuing of Letters of Credit for
the benefit of the Borrower, shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the
Pledgor's grant of the Lien on the Collateral hereunder.
10
25. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to any Pledgor, care of the
Borrower at its address indicated in SECTION 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in SECTION 12.2 of the Credit Agreement.
All such notices shall be given and shall be effective as provided in
SECTION 12.2 of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF XXXXXXXX,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PLEDGOR EXPRESSLY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR
TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY,
ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
THE PLEDGOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) or (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE EACH PLEDGOR OR ANY OF SUCH PLEDGOR'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
THEREWITH, EACH PLEDGOR AND THE AGENT ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR
PROCEEDING.
[Signature pages follow.]
12
IN WITNESS WHEREOF, the parties have duly executed this
Stock Pledge Agreement on the day and year first written above.
PLEDGORS:
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
XXXXXX INDUSTRIES INTERNATIONAL INC.
X'XXXX TRUCK SERVICE, INC.
ROAD ONE, INC.
SOUTHERN WRECKER SALES, INC.
VULCAN INTERNATIONAL (DELAWARE), INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 1 OF 2
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Commercial Banking Officer
STOCK PLEDGE AGREEMENT
SIGNATURE PAGE 2 OF 2
SCHEDULE I
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
Champion Century Common 3,000 $1.00 100 100 2
Carier Holdings,
Corporation Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Financial Century Common 1,000 None 1,000 1,000 1
Services Group Holdings,
Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Industries Century Preferred 100,000 $1.00 None None N/A
Towing Holdings, Common 3,000 None 3,000 3,000 4
Equipment Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Chicago Metro X'Xxxx Common 100,000 None 3,000 3,000 A-1
Services, Inc. Truck
Service, Inc.
---------------------------------------------------------------------------------------------------------------------
Team Towing X'Xxxx Common 1,000 None 100 100 5
and Recovery, Truck
Inc. Service, Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxx Xxx, Xxxxxx 1,000 $0.01 100 100 1
Vehicle Inc.
Detention
Center, Inc.
---------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxxxx, Road One, Common 1,000 $0.01 100 100 1
Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Dollar Road One, Common 1,000 $0.01 100 100 1
Enterprises, Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Good Mechanic Road One, Common 1,000 $0.01 100 100 1
Auto Co. of Inc.
Richfield, Inc.
---------------------------------------------------------------------------------------------------------------------
Greg's Towing, Road One, Common 1,000 $0.01 100 100 1
Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxxx Xxxx Xxx, Xxxxxx 1,000 $0.01 100 100 1
Towing, Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Name of Issuer Pledgor/ Class of Total Par Number Number of Certificate
Owner(s) Stock Number Value of Shares Shares No(s).
Pledged of Shares Per Issued and Pledged
Authorized Share Outstanding
---------------------------------------------------------------------------------------------------------------------
Xxxxxx'x Road One, Common 1,000 $0.01 100 100 1
Towing, Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxx Xxx Xxxx Xxx, Xxxxxx 1,000 $0.01 100 100 1
Insurance Inc.
Services, Inc.
---------------------------------------------------------------------------------------------------------------------
Truck Sales & Road One, Common 1,000 $0.01 100 100 1
Salvage Co., Inc. Inc.
---------------------------------------------------------------------------------------------------------------------
Xxxxxxx Road One, Common 1,000 $0.01 100 100 1
Corporation Inc.
---------------------------------------------------------------------------------------------------------------------
Chevron Southern Common 100,000 $1.00 500 500 2
South/Southern Wrecker
Wrecker Sales, Inc.
Leasing, Inc.
---------------------------------------------------------------------------------------------------------------------
Vulcan Vulcan Common 150,000 $1.00 5,333.9098 5,333.9098 7
Equipment International 90,038.0434 90,038.0434 8
Company, Inc. (Delaware),
Inc.
---------------------------------------------------------------------------------------------------------------------
/TABLE
EXHIBIT A
STOCK PLEDGE AGREEMENT SUPPLEMENT
THIS STOCK PLEDGE AGREEMENT SUPPLEMENT (this "
Supplement"), dated as of ______________, 199__ is made by and
between XXXXXX INDUSTRIES, INC., a Tennessee corporation (the
"Pledgor"), and NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a
national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
financial institutions (the "Lenders") now or hereafter party to
the Credit Agreement dated as of January 30, 1998 among such
Lenders, the Agent, Xxxxxx Industries, Inc. and Xxxxxx Industries
Towing Equipment Inc. All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned
thereto in the Stock Pledge Agreement (as defined below).
WHEREAS, the Pledgor is a party to that certain Stock
Pledge Agreement dated as of January 30, 1998 by the Pledgor in
favor of the Agent for the benefit of the Lenders (the "Stock
Pledge Agreement"); and
WHEREAS, the Pledgor is required under the terms of the
Credit Agreement and the Stock Pledge Agreement to cause certain
shares of capital stock held by it and listed on Annex A to this
Supplement (the "Additional Shares") to become subject to the
Stock Pledge Agreement; and
WHEREAS, a material part of the consideration given in
connection with and as an inducement to the execution and
delivery of the Credit Agreement by the Secured Parties was
the obligation of the Pledgor to pledge to the Agent for the
benefit of the Lenders the Additional Shares, whether then owned
and not required to be subject to a pledge or subsequently
acquired or created; and
WHEREAS, the Secured parties have required the Pledgor
to pledge to the Agent for the benefit of the Lenders
all of the Additional Shares in accordance with the terms of the
Credit Agreement and the Stock Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with
the Agent, for the benefit of the Lenders:
1. The Pledgor hereby reaffirms and acknowledges the
pledge and collateral assignment to, and the grant of security
interest in, the Collateral contained in the Stock Pledge
Agreement and pledges and collaterally assigns to the Agent for
the benefit of the Lenders, and grants to the Agent for the
benefit of the Lenders a first priority lien and security
interest in, the Additional Shares and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or
distributed in respect of or in exchange for any or all of
the Additional Shares, other than cash dividends permitted
to be retained by the Pledgor under SECTION 9 of the Stock
Pledge Agreement;
(b) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the
foregoing, all certificates and instruments representing or
evidencing such property and all cash, securities, interest,
dividends, rights, and other property at any time and from
time to time declared or distributed in respect of or in
exchange for any or all of the Additional Shares; and
(c) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Shares constitute
"Pledged Stock" under and are subject to the Stock Pledge Agreement.
Each of the representations and warranties with respect to
Pledged Stock contained in the Stock Pledge Agreement is hereby made by
the Pledgor with respect to the Additional Shares. A revised
SCHEDULE I to the Stock Pledge Agreement reflecting the Additional
Shares and all other Pledged Stock, together with stock
certificates representing the Additional Shares with stock powers
duly executed in blank by the Pledgor, have been delivered
herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement
to be duly executed by its authorized officer as of the day and
year first above written.
___________________________________
By:________________________________
Name:______________________________
Title:____________________________
Acknowledged and accepted:
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION,
as Agent for the Lenders
By:________________________________
Name:______________________________
Title:_____________________________
ANNEX A
Additional Shares
Name of Pledged Class of Stock Total Number of Certificate Numbers
Subsidiary or Issuer -------------- Shares Pledged -------------------
-------------------- ---------------
