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EXHIBIT 10.19
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as the same may be amended, restated,
supplemented or otherwise modified from time to time, "Agreement"), dated as of
August 15, 2000, 2000, is made by UNION-TRANSPORT CORPORATION, a New York
corporation ("Borrower"), UNION-TRANSPORT (U.S.) HOLDINGS, INC., a Delaware
corporation ("UT Holdings"), UNION-TRANSPORT BROKERAGE CORPORATION, a California
corporation ("UT Brokerage"), UT SERVICES, INC., a California corporation ("UT
Services"), UNION-TRANSPORT LOGISTICS INC., a Delaware corporation ("UT
Logistics"), and VANGUARD CARGO SYSTEMS, INC., a New York corporation ("UT
Vanguard") (Borrower, UT Holdings, UT Brokerage, UT Services, UT Logistics and
UT Vanguard being referred to collectively as "Pledgors" and each individually
as a "Pledgor"); in favor of GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, as agent (in such capacity, "Agent") for the lenders ("Lenders")
from time to time a party to the Credit Agreement (as defined below).
RECITALS
A. Pursuant to that certain Credit Agreement of even date
herewith by and among Pledgors, Agent and Lenders (including all annexes,
exhibits and schedules thereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
Lenders have agreed to extend certain financial accommodations to or for the
direct or indirect benefit of Pledgors.
B. Each Pledgor is the record and beneficial owner of the
shares of Stock listed as owned by it in Part A of Schedule I hereto and the
owner of the promissory notes and other Instruments and the beneficiary of the
letters of credit listed as held by it in Part B of Schedule I hereto.
C. Each Pledgor is either a direct or indirect beneficiary of
the credit facilities made available to Borrower under the Credit Agreement.
D. In order to induce Agent and Lenders to enter into the
Credit Agreement and the other Loan Documents and to induce Agent and Lenders to
extend the financial accommodations as provided for in the Credit Agreement,
each Pledgor has agreed to pledge the Pledged Collateral as hereinafter defined
to Agent in accordance herewith. These recitals shall be construed as part of
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each Pledgor and
Agent agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms or
matters of construction defined or established in Annex A to the Credit
Agreement shall be applied herein as defined or established therein, and the
following terms 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):
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"Pledged Collateral" shall have the meaning assigned to it in
Section 2.
"Pledged Entity" shall mean an issuer of Pledged Shares or
Pledged Indebtedness.
"Pledged Indebtedness" shall mean the Indebtedness evidenced
by the promissory notes, other Instruments and letters of credit listed on Part
B of Schedule I.
"Pledged Shares" shall mean those shares listed in Part A of
Schedule I.
"Secured Obligations" shall have the meaning assigned to it in
Section 3.
2. Pledge. Each Pledgor hereby pledges and grants to Agent, for the
benefit of Agent and Lenders, a first priority Lien on all of the following
(collectively, the "Pledged Collateral"):
(a) the Pledged Shares owned by it and the certificates
representing such 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 such Pledged Shares;
(b) such portion, as determined by Agent as provided in
Section 6(d), of any additional shares of Stock of a Pledged Entity from time to
time acquired by such Pledgor in any manner (which shares shall be deemed to be
part of the Pledged Shares owned by such Pledgor), 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;
(c) the Pledged Indebtedness held by it and the promissory
notes, other Instruments and letters of credit evidencing such Pledged
Indebtedness, and all interest, cash, Instruments and other property and assets
from time to time received, receivable or otherwise distributed in respect of
such Pledged Indebtedness; and
(d) all additional Indebtedness arising after the date hereof
and owing to such Pledgor and evidenced by promissory notes, other Instruments
or letters of credit, together with such promissory notes, Instruments and
letters of credit, and all interest, cash, Instruments and other property and
assets from time to time received, receivable or otherwise distributed in
respect of such 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 the
Obligations, including all obligations of any Pledgor now or hereafter existing
under this Agreement, together with 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, other Instruments and letters of credit evidencing the Pledged Collateral
shall be delivered to and held by or on behalf of Agent, for the benefit of
Agent and Lenders, pursuant hereto. All Pledged Shares shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form
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and substance satisfactory to Agent and all promissory notes or other
Instruments evidencing the Pledged Indebtedness shall be endorsed by the Pledgor
pledging such Pledged Indebtedness.
5. Representations and Warranties. Each Pledgor represents and warrants
to Agent that:
(a) (i) Such Pledgor is, and at the time of delivery of the
Pledged Shares owned by it to Agent will be, the sole holder of record and the
sole beneficial owner of such Pledged Collateral pledged by it free and clear of
any Lien thereon or affecting the title thereto, except for any Lien created by
this Agreement or the other Loan Documents or Permitted Encumbrances, and (ii)
such Pledgor is, and at the time of delivery of the Pledged Indebtedness held by
it to Agent will be, the sole owner and holder of such Pledged Collateral free
and clear of any Lien thereon or affecting title thereto, except for any Lien
created by this Agreement or the other Loan Documents or Permitted Encumbrances.
(b) (i) All of the Pledged Shares owned by such Pledgor have
been duly authorized, validly issued and are fully paid and non-assessable, and
(ii) to such Pledgor's knowledge, the Pledged Indebtedness held by such Pledgor
has been duly authorized, authenticated or issued and delivered by, and
constitutes the legal, valid and binding obligation of, each Pledged Entity
issuing same, and no such Pledged Entity is in default thereunder.
(c) Such Pledgor has the right and requisite authority to
pledge, assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by such Pledgor to Agent as provided herein.
(d) None of the Pledged Shares or Pledged Indebtedness owned
or held by such Pledgor 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) Such Pledgor is the sole owner of the Pledged Shares
pledged by it hereunder and such Pledged Shares are presently represented by the
certificates listed in Part A of Schedule I. As of the date hereof, there are no
existing options, warrants, calls or commitments of any character whatsoever
relating to the Pledged Shares pledged by such Pledgor hereunder.
(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 such Pledgor of the Pledged
Collateral owned or held by it pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by such Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this Agreement
or the remedies in respect of such 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 owned or held by it pursuant to this Agreement will create a valid
first priority Lien in favor of Agent for the benefit of Agent and Lenders upon
such Pledged Collateral and the Proceeds thereof, securing the payment of the
Secured Obligations, and the Pledged Collateral is subject to no other Lien
other than Permitted Encumbrances;
(h) This Agreement has been duly authorized, executed and
delivered by such
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Pledgor and constitutes a legal, valid and binding obligation of such Pledgor
enforceable against such Pledgor in accordance with its terms.
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares of Stock of each Pledged Entity.
(j) Except as disclosed in Part B of Schedule I, none of the
Pledged Indebtedness held by such Pledgor 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. Each Pledgor covenants and agrees that until the
Termination Date:
(a) Without the prior written consent of Agent, such Pledgor
will not sell, assign, transfer, pledge, or otherwise encumber any of its rights
in or to any Pledged Collateral owned or held by it, or any unpaid dividends,
interest or other distributions or payments with respect to such Pledged
Collateral, or xxxxx x Xxxx on such Pledged Collateral, except as otherwise
expressly permitted by the Credit Agreement;
(b) Such Pledgor will, at its expense, promptly execute,
acknowledge and deliver all such Instruments and deliver letters of credit and
take all such actions as Agent from time to time may request in order to ensure
to Agent and Lenders the benefits of the Liens upon the Pledged Collateral owned
or held by it intended to be created by this Agreement, including the filing of
any necessary Code financing statements, which may be filed by Agent with or (to
the extent permitted by law) without the signature of such Pledgor, and will
cooperate with Agent, at such 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 such
Pledged Collateral;
(c) Such Pledgor has and will defend the title to the Pledged
Collateral owned or held by it and the Liens of Agent in such Pledged Collateral
against the claim of any Person and will maintain and preserve such Liens; and
(d) Such Pledgor will, upon obtaining ownership of any
additional Stock, promissory notes or other Instruments or letters of credit of
a Pledged Entity or Stock, promissory notes or other Instruments or letters of
credit otherwise required to be pledged to Agent pursuant to any of the Loan
Documents that does not already constitute Pledged Collateral hereunder,
promptly (and in any event within three Business Days) after it acquires any
such additional Stock, notes or other Instruments or letters of credit, deliver
to Agent a Pledge Amendment, duly executed by such Pledgor, in substantially the
form of Schedule II (each, a "Pledge Amendment"), in respect of any such
additional Stock, notes or other Instruments or letters of credit pursuant to
which such Pledgor shall pledge to Agent all of such additional Stock, notes and
other Instruments and letters of credit. Such Pledgor hereby authorizes Agent to
attach each such Pledge Amendment to this Agreement and agrees that all Pledged
Shares and Pledged Indebtedness listed in any such Pledge Amendment delivered to
Agent shall for all purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. So long as no Event of Default shall have occurred
and be
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continuing and until written notice shall be given to any Pledgor in accordance
with Section 8(a):
(a) Each Pledgor shall have the right, from time to time, to
vote and give consents with respect to the Pledged Collateral pledged by it
hereunder or any part thereof for all purposes not inconsistent with the
provisions of this Agreement, the Credit Agreement or any other Loan Document;
provided, that no vote shall be cast, and no consent shall be given or action
taken, that would have the effect of impairing the position or interest of Agent
in respect of the Pledged Collateral or that 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 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.
(b) Each 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 pledged by it hereunder
to the extent not in violation of the Credit Agreement, except for any and all:
(i) dividends and interest paid or payable other than in cash in respect of any
such Pledged Collateral, Instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any such Pledged
Collateral; (ii) dividends and other distributions paid or payable in cash in
respect of any such 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 (iii) cash paid, payable or
otherwise distributed in respect of principal of, or in redemption of, or in
exchange for, any such Pledged Collateral; provided, that until actually paid
all rights to such distributions shall remain subject to the Lien in favor of
Agent created by this Agreement and the other Loan Documents.
(c) All dividends and interest (other than such cash dividends
and interest as are permitted to be paid to each 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
Agent to hold as Pledged Collateral and shall, if received by such Pledgor, be
received in trust for the benefit of Agent, for the benefit of Agent and
Lenders, be segregated from the other property or funds of such Pledgor, and be
forthwith delivered to Agent as Pledged Collateral in the same form as so
received (with any necessary indorsements).
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8. Defaults and Remedies; Proxy.
(a) Upon the occurrence and during the continuation of any
Event of Default, and concurrently with written notice to any Pledgor, 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 pledged by such Pledgor hereunder, to exchange
certificates or Instruments representing or evidencing such 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 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 such Pledgor agrees is commercially reasonable) the whole or any
part of such Pledged Collateral and to otherwise act with respect to such
Pledged Collateral as though Agent were the outright owner thereof. Any sale
shall be made at a public or private sale at 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 Agent may deem fair, and Agent may be the
purchaser of the whole or any part of such Pledged Collateral so sold and hold
the same thereafter in its own right free from any claim of any Pledgor or any
right of redemption. Each sale shall be made to the highest bidder, but Agent
reserves the right to reject any and all bids at such sale that, 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 Agent. EACH PLEDGOR HEREBY
IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF
SUCH PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL PLEDGED BY SUCH PLEDGOR
HEREUNDER, INCLUDING THE RIGHT TO VOTE, SUBJECT TO THE TERMS OF THIS AGREEMENT,
THE PLEDGED SHARES OF SUCH PLEDGOR, WITH FULL POWER OF SUBSTITUTION TO DO SO.
THE APPOINTMENT OF 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 OF SUCH PLEDGOR, THE APPOINTMENT OF AGENT AS
PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE, SUBJECT TO THE TERMS OF THIS
AGREEMENT, THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND
REMEDIES TO WHICH A HOLDER OF SUCH 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
SUCH PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF SUCH PLEDGED SHARES OR ANY OFFICER OR AGENT THEREOF),
UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT.
NOTWITHSTANDING THE FOREGOING, 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 pledged by any Pledgor
hereunder, (i) the highest bid, if there is but one sale, shall be inadequate to
discharge in full all the Secured Obligations, or (ii) such Pledged
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Collateral is offered for sale in lots, the highest bid for the lot offered for
sale at any of such sales would indicate to Agent, in its discretion, that the
proceeds of the sales of the whole of such Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, then 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, that any sale or sales
made after such postponement shall be after ten days' notice to such Pledgor.
(c) If, following the occurrence and during the continuance of
an Event of Default, Agent in its sole discretion determines that, in connection
with any actual or contemplated exercise of its rights (when permitted under
this Section 8) to sell the whole or any part of the Pledged Collateral
hereunder, it is necessary or advisable to effect a public registration of all
or part of the Pledged Collateral pursuant to the Securities Act (or any similar
statute), then each Pledgor shall, in an expeditious manner, cause the Pledged
Entity that issued Pledged Collateral owned or held by it to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares owned by it and in good faith use commercially
reasonable efforts to cause such registration statement to become and
remain effective;
(ii) Prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of
the Pledged Shares covered by such registration statement whenever
Agent shall desire to sell or otherwise dispose of such Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a
prospectus and a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as Agent
may request in order to facilitate the public sale or other disposition
by Agent of the Pledged Shares owned by it;
(iv) Use commercially reasonable efforts to register
or qualify the Pledged Shares covered by such registration statement
under such other securities or blue sky laws of such jurisdictions
within the United States and Puerto Rico as Agent shall request, and do
such other reasonable acts and things as may be required of it to
enable Agent to consummate the public sale or other disposition by
Agent in such jurisdictions of such Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date
that Pledged Shares owned or held by it are delivered to the
underwriters for sale pursuant to such registration or, if the security
is not being sold through underwriters, on the date that the
registration statement with respect to such Pledged Shares becomes
effective, (A) an opinion, dated such date, of the independent counsel
representing such registrant for the purposes of such registration,
addressed to the underwriters, if any, and in the event such Pledged
Shares are not being sold through underwriters, then to Agent, in
customary form and covering matters of the type customarily covered in
such legal opinions; and (B) a comfort letter, dated such date, from
the independent certified public accountants of such registrant,
addressed to the
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underwriters, if any, and in the event such Pledged Shares are not
being sold through underwriters, then to Agent, in a customary form and
covering matters of the type customarily covered by such comfort
letters and as the underwriters or Agent shall reasonably request. The
opinion of counsel referred to above shall additionally cover such
other legal matters with respect to the registration in respect of
which such opinion is being given as Agent may reasonably request. The
comfort letter referred to above from the independent certified public
accountants shall additionally cover such other financial matters
(including information as to the period ending not more than five
Business Days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as Agent
may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably
practicable but not later than 18 months after the effective date of
such registration statement, an earnings statement covering the period
of at least 12 months beginning with the first full month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
(d) All expenses incurred in complying with Section 8(c),
including all registration and filing fees (including all expenses incident to
filing with the National Association of Securities Dealers, Inc.), printing
expenses, fees and disbursements of counsel for the registrant, the fees and
expenses of counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by any such
registration) and expenses of complying with the securities or blue sky laws of
any jurisdictions, shall be paid by Pledgors.
(e) If, at any time when 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 (or any similar
statute), then 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 Agent may deem necessary or
advisable, but subject to the other requirements of this Section 8, 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, Agent in
its discretion may (i) 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 the Securities Act (or similar statute), (ii) approach and
negotiate with a single possible purchaser to effect such sale, and (iii)
restrict such sale to a purchaser who is an accredited investor under the
Securities 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 8, if any of the Pledged
Collateral shall not be freely distributable to the public without registration
under the Securities Act (or similar statute) at the time of any proposed sale
pursuant to this Section 8, then 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:
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(A) as to the financial sophistication and
ability of any Person permitted to bid or purchase at any such sale;
(B) 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;
(C) as to the representations required to be
made by each Person bidding or purchasing at such sale relating to such
Person's access to financial information about such Pledgor 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
(D) as to such other matters as 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 Securities Act and all
applicable state securities laws.
(f) Each Pledgor recognizes that 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 Section 8(e)
above. Each 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. 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 applicable Pledged Entity to register
such securities for public sale under the Securities Act, or under applicable
state securities laws, even if the Pledgor owning or holding such Pledged
Collateral and the Pledged Entity would agree to do so.
(g) Each 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
each Pledgor waives the benefit of all such laws to the extent it lawfully may
do so. Each Pledgor agrees that it will not interfere with any right, power or
remedy of 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 Agent of any one or more of such rights, powers or remedies. No
failure or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand that may be given to or made upon any Pledgor by
Agent with respect to any such remedies shall operate as a waiver thereof, or
limit or impair 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
any Pledgor in any respect.
(h) Each Pledgor further agrees that a breach of any of the
covenants contained in this Section 8 will cause irreparable injury to Agent,
that 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
8 shall be specifically enforceable against such Pledgor, and each Pledgor
hereby waives and agrees not to assert any defenses against an action for
specific performance of such
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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 the Secured Obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand that may be given
to or made upon any Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair 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
Agent's rights as against any Pledgor in any respect.
10. Assignment. 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.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to each Pledgor (as the case may be) the Pledged Collateral
pledged by such Pledgor at the time subject to this Agreement and all
instruments of assignment executed in connection therewith, free and clear of
the Liens created in favor of Agent under this Agreement and the other Loan
Documents and, except as otherwise provided herein, all of such Pledgor's
obligations hereunder shall at such time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of each 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;
(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 Pledgor; or
(e) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, such Pledgor.
13. Release. Each Pledgor consents and agrees that Agent may at any
time, or from time to time, in its discretion (subject to the terms of the
Credit Agreement):
(a) renew, extend or change the time of payment of, or the
manner, place or terms of payment of, all or any part of the Secured
Obligations; and
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(b) exchange, release or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, that is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such manner and
upon such terms as Agent may deem proper, and without notice to or further
assent from such Pledgor, it being hereby agreed that such Pledgor shall be and
remain bound by 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. Each Pledgor hereby waives notice of
acceptance of this Agreement, presentment, demand, protest and notice of
dishonor of any and all of the Secured Obligations, and any delay by Agent or
any Lender in commencing suit against any party hereto or Person liable hereon,
and in giving any notice to or of making any claim or demand hereunder upon such
Pledgor. No act or omission of any kind on Agent's part shall in any event
affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against any
Pledgor or any Pledged Entity for liquidation or reorganization, should any
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 any Pledgor's or 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 transfer," 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.
15. Miscellaneous.
(a) 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) Each Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including reasonable counsel fees, incurred by Agent in
connection with the administration and enforcement of this Agreement.
(c) Neither 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.
(d) THIS AGREEMENT SHALL BE BINDING UPON EACH PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A TRUSTEE OR DEBTOR-IN-POSSESSION ON BEHALF OF
SUCH PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, AGENT
AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE
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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 AGENT AND EACH 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 affect those portions of this
Agreement that 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 party any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be given in the manner, and deemed
received, as provided for in the Credit Agreement.
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 Liens granted or contemplated hereby shall
be for the benefit of Agent, for the benefit of 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the date first written above.
"PLEDGORS" "AGENT"
UNION-TRANSPORT CORPORATION GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ THURSO XXXXXXXX By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------- --------------------------------
Name: Thurso Xxxxxxxx Xxxxxx X. Xxxxxxxxx
------------------------------- Duly Authorized Signatory
Title: VP Finance
------------------------------
UNION-TRANSPORT (U.S.)
HOLDINGS, INC.
By: /s/ THURSO XXXXXXXX
---------------------------------
Name: Thurso Xxxxxxxx
-------------------------------
Title: VP Finance
------------------------------
UNION-TRANSPORT BROKERAGE CORP.
By: /s/ THURSO XXXXXXXX
---------------------------------
Name: Thurso Xxxxxxxx
-------------------------------
Title: VP Finance
------------------------------
UT SERVICES, INC.
By: /s/ THURSO XXXXXXXX
---------------------------------
Name: Thurso Xxxxxxxx
-------------------------------
Title: VP Finance
------------------------------
UNION-TRANSPORT LOGISTICS INC.
By: /s/ THURSO XXXXXXXX
---------------------------------
Name: Thurso Xxxxxxxx
-------------------------------
Title: VP Finance
------------------------------
VANGUARD CARGO SYSTEMS, INC.
By: /s/ THURSO XXXXXXXX
---------------------------------
Name: Thurso Xxxxxxxx
-------------------------------
Title: VP Finance
------------------------------
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SCHEDULE I
PART A
PLEDGED SHARES
Pledged Entity Class of Stock Certificate No. No. Of shares % Outstanding
-------------- -------------- --------------- ------------- -------------
UT Brokerage Common Stock 3 1,250 100%
of UT Brokerage
UT Services Common Stock 2 10,000 100%
of UT Services
UT Vanguard Common Stock 2 49 49%
of UT Vanguard
UT Vanguard Common Stock 3 51 51%
of UT Vanguard
Borrower Common Stock 9 200 100%
of Borrower
UT Logistics Common Stock 3 600 100%
of UT Logistics
PART B
PLEDGED INDEBTEDNESS
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
UT Holdings, Borrower, The aggregate unpaid August 15, 2000 None
UT Logistics, UT amount of all advances,
Vanguard, UT Brokerage indebtedness, loans,
payments and other
extensions of credit
and obligations made by
Holder to Company, or
otherwise owing by
Company to Holder from
time to time, as set
forth on the Books and
Records of Holder.
[TO BE PROVIDED BY PLEDGORS]
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SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated as of ________ ___, ___ is
delivered pursuant to Section 6(d) of the Pledge Agreement referred to below.
All defined terms herein shall have the meanings assigned thereto or
incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section 5 of the Pledge
Agreement are and continue to be true and correct, both as to the promissory
notes, other Instruments and shares pledged prior to this Pledge Amendment and
as to the promissory notes, other Instruments and shares pledged pursuant to
this Pledge Amendment. The undersigned further agrees that this Pledge Amendment
may be attached to that certain Pledge Agreement dated as of August 15, 2000
(the "Pledge Agreement"), by and among Union-Transport Corporation,
Union-Transport (U.S.) Holdings, Inc., Union-Transport Brokerage Corporation, UT
Services, Inc., Union-Transport Logistics Inc., and Vanguard Cargo Systems,
Inc., as Pledgors; and General Electric Capital Corporation, as Agent, and that
the Pledged Shares and Pledged Indebtedness listed in this Pledge Amendment
shall be and become a part of the Pledged Collateral referred to in the Pledge
Agreement and shall secure all Secured Obligations referred to in the Pledge
Agreement. The undersigned acknowledges that any promissory notes, other
Instruments or shares not included in the Pledged Collateral at the discretion
of Agent may not otherwise be pledged by Pledgor to any other Person or
otherwise be used as security for any obligations other than the Secured
Obligations.
"PLEDGOR"
[ ]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PLEDGED SHARES
Pledged Entity Class of Stock Certificate No. No. Of shares % Outstanding
-------------- -------------- --------------- ------------- -------------
100%
PLEDGED INDEBTEDNESS
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
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