SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT dated as of December 1, 1995
(as amended and modified from time to time, this "Agreement" or
"Security Agreement") is by and among THE MANITOWOC COMPANY, INC., a
Wisconsin corporation (the "Borrower") each subsidiary of the Borrower
on the signature pages hereto and as may from time to time hereafter
become a party to the Credit Agreement and to this Security Agreement
(the Borrower and such Subsidiaries may be referred to collectively as
the "Credit Parties" or individually as a "Credit Party") and
NATIONSBANK, N.A., as Collateral Agent hereunder for the Lenders under
the Credit Agreement (in its capacity as Collateral Agent hereunder,
together with any successor in such capacity being hereinafter
referred to as the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, NationsBank, N.A. and various other banks and financial
institutions as may now or hereafter become a party thereto (such
banks and financial institutions, together with their successors and
assigns, may hereinafter be referred to collectively as the "Lenders"
and individually as a "Lender") have agreed to establish a
$180,000,000 credit facility in favor of the Borrower pursuant to the
terms of that Credit Agreement dated as of the date hereof among the
Borrower, the other Credit Parties party thereto, the Lenders and
NationsBank, N.A., as Agent (as amended and modified from time to
time, the "Credit Agreement");
WHEREAS, the Lenders have required as a condition to the
extension of the credit facility pursuant to the Credit Agreement that
the Credit Parties secure their respective obligations under the
Credit Agreement and the other Credit Documents pursuant to the terms
of this Security Agreement;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Terms used but not otherwise defined herein
shall have the meanings provided in the Credit Agreement; provided,
however, that terms which are defined in the Code shall have the
meaning provided in the Code unless specifically provided otherwise
herein or in the Credit Agreement. As used herein:
"Borrower" means The Manitowoc Company, Inc., a Wisconsin
corporation.
"Code" means the Uniform Commercial Code in effect from time
to time in North Carolina, or other applicable state, and any
successor statute(s) thereto.
"Collateral Agent" means NationsBank, N.A., in its capacity
as collateral agent for the Lenders under this Agreement, as
identified and defined in the opening paragraph hereto, together
with its successors and assigns in such capacity.
"Collateral" means, collectively, the General Collateral and
the Pledged Collateral.
"Credit Agreement" means such term as defined in the
Recitals hereof.
"Credit Party" or "Credit Parties" means such terms as
identified and defined in the opening paragraph hereto.
"Default Rate" means such term as defined in Section 3(h)
hereof.
"General Collateral" means such term as defined in Section
2(a) hereof.
"Inventory" means, with respect to each Credit Party, all
inventory in all of its forms, including but not limited to goods
(i) which are held for sale or lease or are to be furnished under
contracts of service or consumed in the Credit Party's business,
or (ii) which are raw materials, work in process, finished goods
or goods in which the Credit Party has an interest or right of
any kind including as consignee, packaging materials and all
other materials and supplies of every nature in each case used or
usable in connection with the Credit Party's business or the
acquisition, manufacture, processing, supply, servicing, storing,
packing, shipping, advertising, selling, leasing or furnishing of
such goods and any constituents or ingredients thereof, or (iii)
which are returned or repossessed goods.
"Lender" or "Lenders" means such terms as identified and
defined in the recitals hereto.
"Permitted Collateral Locations" means such term as defined
in Section 3(b) hereof.
"Pledged Collateral" means such term as defined in Section
2(b) hereof.
"Pledged Securities" means such term as defined in Section
2(b) hereof.
"Pledgor" means the Borrower and each of the other owners of
Pledged Securities identified on Schedule A.
"Receivables" means with respect to each Credit Party, all
accounts in all of their forms, including but not limited to
accounts, accounts receivable, contracts, any right of the Credit
Party for services rendered or for rights or privileges granted,
whether arising from the sale of inventory or otherwise and
whether or not earned by performance, and all other forms of
rights and obligations owing to the Credit Party (including
without limitation amounts due from factors), and all of the
Credit Party's rights to any merchandise (including without
limitation any returned or repossessed goods and the rights of
stoppage in transit) which is represented by, arises from or is
related to any of the foregoing.
"Records" means such term as defined in Section 2(a)(iii)
hereof.
"Secured Obligations" means (i) all indebtedness,
performance or other obligations and liabilities of the Borrower
and the other Credit Parties under or in connection with (A) the
Credit Agreement, (B) any Interest Protection Agreements entered
into by the Borrower with a Lender relating to the Loans and
Obligations under the Credit Agreement, (C) this Security
Agreement or (D) any other of the Credit Documents, whether now
existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held
or acquired, (ii) all obligations, including guaranty
obligations, of the Borrower and the other Credit Parties under
or in connection with the Credit Agreement, this Security
Agreement or any other of the Credit Documents, whether now
existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held
or acquired, and (iii) all indemnities (subject to release upon
repayment of the Obligations under the Credit Agreement and
termination of the commitments thereunder), fees, expenses and
charges, legal and otherwise, reasonably incurred by the
Collateral Agent or the Lenders, or any of them, in collecting or
enforcing any of such indebtedness, obligations and liabilities
or in realizing on or protecting any security therefor, including
without limitation the security afforded hereunder, together with
any and all modifications, extensions, renewals and/or
substitutions thereof.
2. Grant of Security Interest in the Collateral. To secure the
prompt payment and performance when due of the Secured Obligations:
(a) Security Interest in Inventory and Receivables. Each
of the Credit Parties hereby grants to the Collateral Agent for
the ratable benefit of the Lenders a security interest in, and
acknowledges and agrees that the Collateral Agent has and shall
continue to have for the ratable benefit of the Lenders a
continuing security interest in and a right of set-off against
any and all right, title and interest of each Credit Party in and
to:
(i) Inventory. All Inventory, wherever located and by
whomsoever held, whether now owned or existing or hereafter
acquired or arising.
(ii) Receivables. All Receivables, whether now owned or
existing or hereafter acquired or arising, in which the
Credit Party now has or hereafter acquires any rights.
(iii) Records. Supporting evidence and documents
relating to any of the property described in subparagraphs
(i)-(ii) above, including, without limitation, written
applications, credit information, account cards, payment
records, correspondence, delivery and installation
certificates, invoice copies, delivery receipts, notes and
other evidences of indebtedness, insurance certificates and
the like, together with all books of account, ledgers and
cabinets in which the same are reflected or maintained
(including computer records, tapes, software and the like),
all whether now existing or hereafter arising (the
"Records").
(iv) Accessions and Additions. All accessions and
additions to and substitutions and replacements of any and
all of the foregoing, whether now existing or hereafter
arising.
(v) Proceeds and Products. All proceeds and products
of the foregoing and all proceeds of insurance relating to
the foregoing collateral, including the proceeds of any
warranties or indemnities or guaranties payable by reason of
loss or damage to the foregoing Collateral, whether now
existing or hereafter arising.
All of the foregoing items of Collateral described in this
subsection (a) may hereinafter sometimes be referred to
collectively as the "General Collateral".
(b) Pledge of Interest in Pledged Securities. Each of the
Pledgors hereby pledges to the Collateral Agent, and grants to
the Collateral Agent for the ratable benefit of the Lenders, a
security interest in the shares of stock and securities of the
Pledgor and more particularly identified and described in
Schedule A hereto, together with any other shares, instruments or
property distributed to or acquired by the Pledgor in respect
thereof, whether in exchange therefor, in respect thereof or
otherwise (collectively, the "Pledged Securities") and any and
all dividends, products and proceeds thereof in whatever form
(the Pledged Securities together with such dividends, products
and proceeds hereinafter being referred to collectively as the
"Pledged Collateral").
3. General Representations, Warranties, Covenants and
Agreements. The Credit Parties hereby represent and warrant to, and
covenant and agree with the Collateral Agent for the benefit of the
Lenders that:
(a) Chief Executive Office. As of the date hereof, each
such Credit Party's chief executive office and chief place of
business and other executive offices and places of business are
as shown on Schedule B. As of the date hereof, each such Credit
Party has no executive offices or places of business other than
as shown on Schedule B and will not move or otherwise change its
chief executive office or establish or maintain an executive
office or place of business at a location other than as shown on
Schedule B without providing the Collateral Agent with at least
30 days' prior written notice and, in any such case, Schedule B
shall be deemed to include such new location.
(b) Location of Collateral. The Inventory of each of the
Credit Parties is (and, as otherwise noted, has for the four
months immediately preceding the date of this Agreement been),
and will remain, in each such Credit Party's possession or
control at the locations shown on Schedule B (collectively with
the chief executive office shown thereon, the "Permitted
Collateral Locations"), except for Inventory (i) which in the
ordinary course of the Credit Party's business as presently
conducted is in transit from suppliers to purchasers or between
Permitted Collateral Locations of such Credit Party, (ii) which
is held at such other locations within the United States as to
which the Credit Parties shall have given the Collateral Agent at
least 30 days' prior written notice or (iii) at such other
locations outside of the United States with respect to raw
materials or work-in-process being processed in the ordinary
course of business of such Credit Party. The Credit Parties will
not hold General Collateral, have General Collateral held or
permit General Collateral to be held at a location other than a
Permitted Collateral Location without the prior written consent
of the Collateral Agent, which consent shall not be unreasonably
withheld. In addition, each of the Credit Parties will promptly
give written notice to the Collateral Agent of any change in the
identity or location of the General Collateral, or any material
portion thereof. Each such Credit Party owns or leases, and will
continue to own or lease, its respective Permitted Collateral
Locations except as otherwise indicated on Schedule B.
(c) Books and Records. The books and records of each such
Credit Party relating to the Collateral (including ledger sheets,
correspondence and invoice documents and instruments relating to
or evidencing the Collateral) are, and will at all times be kept,
at such Credit Party's chief executive office unless otherwise
indicated on Schedule B. Each such Credit Party will keep the
books and records relating to the Collateral current and in good
order and will take reasonable steps to safeguard them (including
making and storing copies thereof where appropriate).
(d) Legal Name and Trade Names. Each such Credit Party
represents and warrants that as of the date hereof (A) its
correct legal name is as shown in this Agreement, (B) it has not
in the four months immediately preceding the date of this
Agreement changed its name, been a party to a merger,
consolidation or other change in corporate structure (other than
the merger transaction affecting The Xxxxxxx Group, Inc. and
Kolpak Manufacturing Company as referred to in the Credit
Agreement), and (C) except as shown on Schedule C, it does not
use, and has not at any time in the four months immediately
preceding the date of this Agreement used, any trade names or
assumed names in the invoicing of accounts or otherwise in the
conduct of its business or the ownership of its properties. Each
such Credit Party further covenants and agrees that it will not
change its legal name, be a party to a merger, consolidation or
other change in corporate structure or use a trade name or
assumed names in its business without first giving the Collateral
Agent at least 30 days' prior written notice.
(e) Priority. The Collateral and every part thereof is and
will be free and clear of all security interests, liens,
attachments, levies, encumbrances of every kind, nature and
description and whether voluntary or involuntary, and licenses
for the use thereof except for Permitted Liens. Each such Credit
Party will warrant and defend the Collateral against any claims
and demands (other than the Permitted Liens) of all persons at
any time claiming the same or any interest in the Collateral
other than those claims and demands by the Collateral Agent.
Each such Credit Party further represents, warrants, covenants
and agrees that the security interest in the Collateral granted
to the Collateral Agent hereunder, other than the Permitted
Liens, is not subject to (nor have any financing statements been
filed and remain of record, and that such Credit Party will not
grant or permit to exist), any other security interests, liens,
encumbrances or claims (including without limitation claims of
the United States of America or any department, agency or
instrumentality thereof, or any state, county or local
governmental agency) on or against the Collateral, whether
senior, superior, junior, subordinate or equal to the security
interest granted to the Collateral Agent hereby, or otherwise.
(f) Inspection. Each such Credit Party will, upon
reasonable notice and at reasonable times during normal business
hours (and also outside of normal business hours after the
occurrence and during the continuance of an Event of Default),
allow the Collateral Agent and/or any of the Lenders or their
respective representatives free access to and right of inspection
of the Collateral and the books and records relating thereto and
shall otherwise cooperate with and promptly respond to the
reasonable requests of the Collateral Agent and/or any of the
Lenders or their respective representatives with respect thereto.
As to any premises not owned by such Credit Party wherein any of
the Collateral is located the Credit Party shall, promptly upon
request, use its commercially reasonable efforts to cause each
owner of such premises to enter into an agreement in form and
substance reasonably satisfactory to the Collateral Agent waiving
any lien such owner may have by contract or under law with
respect to such Collateral, and allowing the inspection and
removal of such Collateral by the Collateral Agent and otherwise.
(g) Perfection of Security Interest. Except as set forth
in Section 3(e), each such Credit Party represents that this
Agreement and the pledge of the Pledged Collateral creates a
valid security interest in the Collateral (subject only to
Permitted Liens) securing payment and performance of the Secured
Obligations and that all filings and other action reasonably
necessary to perfect such security interest have been taken or
shall be promptly taken upon the reasonable request of the
Collateral Agent. Each such Credit Party agrees to execute and
deliver to the Collateral Agent such further agreements and
assignments or other instruments (including affidavits, notices,
reaffirmations and amendments and restatements of existing
documents, as the Collateral Agent may reasonably request) and to
do all such other things as the Collateral Agent may reasonably
deem necessary or appropriate to assure to the Collateral Agent
its security interest hereunder or to enable the Collateral Agent
to exercise and enforce its rights hereunder, including the
execution of such financing statements (including renewal
statements), statements or amendments thereof or supplements
thereto or other instruments as the Collateral Agent may from
time to time reasonably request in order to maintain the security
interest granted hereunder, to consummate the transactions
contemplated hereby and to otherwise protect and assure the
Collateral Agent and the Lenders of their rights and interests
hereunder. To that end, each such Credit Party agrees that in
the event any Credit Party shall refuse to provide additional
financing statements upon the reasonable written request of the
Collateral Agent, or shall fail to respond promptly (but in any
event within 5 Business Days of receipt of such request) to any
such request, and at any time after the occurrence and during the
continuance of an Event of Default, the Collateral Agent may file
one or more financing statements disclosing its security interest
in any or all of the Collateral without such Credit Party's
signature thereon, and further such Credit Party also hereby
irrevocably makes, constitutes and appoints the Collateral Agent,
its nominee or any other person whom the Collateral Agent may
designate, as such Credit Party's attorney in fact with full
power to sign in the name of such Credit Party any such financing
statements, or amendments and supplements to financing
statements, renewal financing statements, notices or any similar
documents which in the Collateral Agent's reasonable discretion
would be necessary, appropriate or convenient in order to perfect
and maintain perfection of the security interests granted
hereunder, such power, being coupled with an interest, being and
remaining irrevocable so long as any of the Secured Obligations
remain outstanding. Each such Credit Party hereby agrees that a
carbon, photographic or other reproduction of this Agreement or
any such financing statement is sufficient for filing as a
financing statement by the Collateral Agent without notice
thereof to such Credit Party wherever the Collateral Agent may in
its sole discretion desire to file the same. In the event for
any reason the law of any jurisdiction other than North Carolina
becomes or is applicable to the Collateral or any part thereof,
or to any of the Secured Obligations, each such Credit Party
agrees to execute and deliver all such instruments and to do all
such other things as the Collateral Agent reasonably deems
necessary or appropriate to preserve, protect and enforce the
security interest of the Collateral Agent under the law of such
other jurisdiction (and, if any such Credit Party shall fail to
do promptly upon the request of the Collateral Agent, then the
Collateral Agent may execute any and all such requested documents
on behalf of such Credit Party pursuant to the power of attorney
granted hereinabove). If any Collateral is in the possession or
control of any of such Credit Party's agents and the Collateral
Agent reasonably requests, the Credit Party agrees to notify such
agents in writing of the Collateral Agent's security interest
therein and, at any time after the occurrence, and during the
continuance, of an Event of Default, upon the Collateral Agent's
request, instruct them to hold all such Collateral for the
Collateral Agent's account and subject to the Collateral Agent's
instructions. Each such Credit Party agrees, upon the reasonable
request of the Collateral Agent, to xxxx its books and records to
reflect the security interest of the Collateral Agent in the
Collateral.
(h) Advances by Secured Parties. On failure of any such
Credit Party to perform any of the covenants and agreements
herein contained, the Collateral Agent may, at its option,
perform the same and in so doing may expend such sums as the
Collateral Agent may reasonably deem advisable in the performance
thereof, including without limitation the payment of any
insurance premiums, the payment of any taxes, liens and
encumbrances, expenditures made in defending against any adverse
claim and all other expenditures which the Collateral Agent may
be compelled to make by operation of law or which the Collateral
Agent may make by agreement or otherwise for the protection of
the security hereof. All such sums and amounts so expended shall
be repayable by the Credit Parties promptly upon demand, shall
constitute additional Secured Obligations and shall bear interest
from the date said amounts are expended at the rate per annum
equal to the default rate provided in Section 3.1 of the Credit
Agreement for Revolving Loans which are Base Rate Loans (such
rate per annum as so determined being hereinafter referred to as
the "Default Rate"). No such performance of any covenant or
agreement by the Collateral Agent on behalf of any Credit Party,
and no such advance or expenditure therefor, shall relieve any
Credit Party of any default under the terms of this Agreement.
The Collateral Agent, in making any payment hereby authorized may
do so in good faith according to any xxxx, statement or estimate
procured from the appropriate public office or holder of the
claim to be discharged without inquiry into the accuracy of such
xxxx, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien or title or claim. The
Collateral Agent, in performing any act hereunder, shall be the
judge in its reasonable discretion of whether such Credit Party
is required to perform the same under the terms of this
Agreement.
4. Special Provisions regarding Receivables.
(a) Contract Rights. Each such Credit Party represents and
warrants that the contract rights subject to the security
interests hereunder existing as of the date hereof and the papers
and documents relating thereto are genuine and in all respects
what they purport to be.
(b) Chief Executive Office. Each such Credit Party, in
accordance with the provisions of Sections 3(a) and 3(c) hereof,
will keep all of its books and records relating to its
Receivables only at its chief executive office (or at other
executive offices or places of business identified in Schedule B)
and will not change its chief executive office without prior
written notice to the Collateral Agent as specified in Section
3(a).
5. Special Provisions regarding Inventory.
(a) Condition of Inventory. Each such Credit Party
represents and warrants, and shall hereafter be deemed to have
represented and warranted, that, as of the time any Inventory
shall become subject to the security interest hereunder, such
Inventory is located at its respective Permitted Collateral
Locations unless otherwise permitted by Section 3(b). All such
Inventory has been produced in compliance with applicable law in
all material respects.
(b) Reports. Each such Credit Party will, from time to
time promptly upon the reasonable request of the Collateral
Agent, provide the Collateral Agent with such reports and
schedules listing, summarizing and/or identifying by location any
or all of the Inventory as the Collateral Agent may request.
(c) Insurance. Each such Credit Party will insure the
Collateral as provided in the Credit Agreement.
6. Special Provisions Regarding Pledged Collateral.
(a) Representations and Warranties. Each of the Pledgors
represents and warrants to the Collateral Agent for the benefit
of the Lenders that (i) it is the owner of the Pledged Securities
as identified on Schedule A free and clear of all claims,
pledges, liens, encumbrances or security interests of every kind
or nature, (ii) the Pledged Securities represent the entire
interest in the issuer of such Pledged Securities, (iii) the
Pledged Securities have been duly and validly issued, (iv) the
Pledged Securities have been duly and validly pledged to the
Collateral Agent hereby and (v) no consent or approval of any
body, governmental, regulatory or otherwise (including that of
the subject entity, co-owners or other shareholders), is required
for the pledge contemplated hereby or has not otherwise been
obtained. Each of the Pledgors covenants and agrees that its
entire interest in each issuer of such Pledged Securities will at
all times be subject to the grant and pledge contained herein in
accordance with the provisions hereof.
(b) Delivery of Stock Certificates in Transferable Form.
All Pledged Securities (including specifically without limitation
share certificates acquired subsequent to the date of this
Agreement) will be delivered to the Collateral Agent in form
transferable for delivery together with undated stock powers duly
executed in blank in the form provided in Schedule A-1 hereto.
(c) Dividends, etc. Stock certificates, evidences of
ownership and other instruments acquired by or otherwise coming
into the possession of a Pledgor on account of or in respect of
the Pledged Collateral, whether by stock dividend, stock split,
recapitalization, reorganization or otherwise, will be promptly
delivered to the Collateral Agent, together with appropriate
undated stock powers executed in blank, to be held as additional
Pledged Collateral hereunder and will constitute Pledged
Collateral for all purposes hereunder. Subject to the terms of
the Credit Documents, so long as no Event of Default has occurred
and is continuing, dividends (other than stock dividends and
other dividends constituting Pledged Collateral which are
addressed hereinabove) may be paid to and accepted by a Pledgor.
Upon the occurrence and during the continuance of an Event of
Default, dividends (other than stock dividends and other
dividends constituting Pledged Collateral which are addressed
hereinabove) will immediately upon request be paid over to the
Collateral Agent and held as additional Collateral hereunder.
Any such other dividends received by a Pledgor after the
occurrence and during the continuance of an Event of Default will
be accepted in trust for the benefit of, and will be promptly
paid over to, the Collateral Agent.
(d) Endorsement. Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall
have the right, upon notice to the Pledgor, for and in the name,
place and stead of the Pledgor, to execute endorsements,
assignments or other instruments of conveyance or transfer with
respect to all or any of the Pledged Collateral.
(e) Collateral Agent's Obligation. The Collateral Agent
shall have no duty as to the collection or protection of the
Pledged Collateral or any income thereon or as to the
preservation of any rights pertaining thereto, beyond the safe
custody of any thereof actually in its possession. To the extent
permitted by law, each of the Pledgors releases the Collateral
Agent from any claims, causes of action and demands at any time
arising out of or with respect to this Agreement, the Pledged
Collateral and/or any actions, taken or omitted to be taken by
the Collateral Agent with respect thereto, and each of the
Pledgors hereby agrees to hold the Collateral Agent harmless from
and with respect to any and all such claims, causes of action and
demands in each case other than those resulting from the gross
negligence, willful misconduct or unlawful conduct of the
Collateral Agent.
(f) Waivers. Each of the Pledgors acknowledges that if the
Pledged Collateral is of a type customarily sold on a recognized
market then in such case no demand, advertisement or notice, all
of which are, to the extent permitted by law, hereby expressly
waived by the Pledgors, shall be required in connection with any
sale or other disposition of any part of the Pledged Collateral.
The Collateral Agent shall not be obligated to make any sale of
Pledged Collateral if it shall determine not to do so, regardless
of the fact that notice of sale may have been given. The
Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the
time and place to which the same was so adjourned. Upon each
private sale of Pledged Collateral of a type customarily sold in
a recognized market or subject to widely distributed standard
price quotations and upon each public sale, the Collateral Agent
or any of the Lenders may purchase all or any of the Pledged
Collateral being sold, free from any equity or right of
redemption, which is hereby waived and released by the Borrower.
In the case of all sales of Pledged Collateral, public or
private, the Pledgors shall pay all reasonable costs and expenses
of every kind for sale or delivery, including brokers' and
attorneys' fees, and after deducting such costs and expenses from
the proceeds of sale, the Collateral Agent shall apply any amount
remaining to the payment of the Secured Obligations, and the
Pledgors shall continue to be liable for any deficiency. The
balance, if any, remaining after payment in full of all of the
Secured Obligations, shall be paid to the Pledgors.
(g) Unregistered Securities. Each of the Pledgors
recognizes that the Collateral Agent may be unable to effect a
public sale of all or a part of the Pledged Securities by reason
of certain prohibitions contained in the Securities Act of 1933,
as amended, as now or hereafter in effect, or in applicable state
securities laws, as now or hereafter in effect, but may be
compelled 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 such Pledged Securities for their own account,
for investment and not with a view to the distribution or resale
thereof. Each of the Pledgors acknowledges, understands and
agrees that private sales so made may be at prices and other
terms less favorable to the seller than if such Pledged
Securities were sold at public sales, and that neither the
Collateral Agent nor the Lenders shall have any obligation to
delay sale of any such Pledged Securities for the period of time
necessary to permit the issuer of such Pledged Securities even if
such issuer would agree, to register such Pledged Securities for
public sale under such applicable securities laws. Each of the
Pledgors agrees that (i) if the Collateral Agent shall, pursuant
to the terms of this Agreement, sell or cause the Pledged
Securities or any portion thereof to be sold at private sale, the
Collateral Agent shall have the right to rely upon the advice and
opinion of any national brokerage or investment firm having a
seat on the New York Stock Exchange as to the best manner in
which to expose the Pledged Securities for sale and as to the
best price reasonably obtainable at the private sale thereof, and
(ii) that private sales made under the foregoing circumstances
shall be deemed to have been made in a commercially reasonable
manner.
7. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and at any time thereafter unless and until such Event of
Default has been waived or cured in accordance with the terms of
the Credit Agreement, the Collateral Agent shall have in addition
to the rights and remedies provided herein, in the Credit
Documents or by law, the rights and remedies of a secured party
under the Code (regardless of whether the Code is the law of the
jurisdiction where the rights and remedies are asserted and
regardless of whether the Code applies to the affected
Collateral), and further the Collateral Agent may with or without
judicial process or the aid and assistance of others (i) enter on
any premises on which any of the Collateral may be located and,
without resistance or interference by any such Credit Party, take
possession of the Collateral, (ii) dispose of any Collateral on
any such premises, (iii) require any such Credit Party to
assemble and make available to the Collateral Agent at its own
expense any Collateral at any place and time designated by the
Collateral Agent which is reasonably convenient to both parties,
(iv) remove any Collateral from any such premises for the purpose
of effecting sale or other disposition thereof, and/or (v)
without demand and without advertisement, notice, hearing or
process of law, all of which each such Credit Party hereby waives
to the extent permitted by law, at any place and time or times,
sell and deliver any or all Collateral held by or for it at
public or private sale, by one or more contracts, in one or more
parcels, for cash, upon credit or otherwise, at such prices and
upon such terms as the Collateral Agent deems advisable, in its
sole discretion, provided that said disposition complies with any
and all mandatory legal requirements. In addition to all other
sums due the Collateral Agent or any Lender hereunder, the Credit
Parties shall pay the Collateral Agent all reasonable costs and
expenses incurred by the Collateral Agent, including reasonable
attorneys' fees (including the allocated costs of in-house
counsel) and court costs, in obtaining or liquidating the
Collateral, in enforcing payment of Secured Obligations, or in
the prosecution or defense of any action or proceeding by or
against the Collateral Agent or any Lender concerning any matter
arising out of or connected with this Agreement or the Collateral
or Secured Obligations, including without limitation any of the
foregoing arising in, arising under or related to a case under
the United States Bankruptcy Code. To the extent the rights of
notice cannot be legally waived hereunder, each such Credit Party
agrees that any requirement of reasonable notice shall be met if
such notice is personally served on or otherwise sent to such
Credit Party in accordance with Section 11 hereof at least 10
days before the time of sale or other event giving rise to the
requirement of such notice. The Collateral Agent shall not be
obligated to make any sale or other disposition of the Collateral
regardless of notice having been given. To the extent permitted
by law, the Collateral Agent or any Lender may be the purchaser
at any such sale. To the extent permitted by applicable law,
each such Credit Party hereby waives all of its rights of
redemption from any such sale. Subject to the provisions of
applicable law, the Collateral Agent may postpone or cause the
postponement of the sale of all or any portion of the Collateral
by announcement at the time and place of such sale, and such sale
may, without further notice, to the extent permitted by law, be
made at the time and place to which the sale was postponed or the
Collateral Agent may further postpone such sale by announcement
made at such time and place.
(b) Remedies relating to Pledged Collateral. Upon the
occurrence of an Event of Default and at any time thereafter
unless and until such Event of Default has been waived or cured
in accordance with the terms of the Credit Agreement, and to the
extent permitted by law, with regard to the Pledged Collateral,
the Collateral Agent may immediately upon notice to the Pledgors
in the case of an Event of Default other than as described in
Section 9(e) of the Credit Agreement, and without any requirement
for notice in the case of an Event of Default described in
Section 9(e) of the Credit Agreement, (i) have the right to vote
such Pledged Securities and (ii) cause all or any of the Pledged
Securities to be transferred to it or registered in the name of
its nominee(s). Unless an Event of Default shall have occurred
and be continuing and the Collateral Agent shall have given
notice to the Pledgors of the Collateral Agent's intent to
exercise its rights and remedies with respect to the Pledged
Collateral pursuant to this Agreement, the Pledgors shall be
entitled to exercise any and all voting and other consensual and
corporate rights with respect to the Pledged Collateral;
provided, however, that no vote shall be cast or consensual or
corporate right exercised or other action taken which would
impair the Pledged Collateral or which would be inconsistent with
or result in any violation of any provisions of the Credit
Documents.
(c) Access. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and at any
time thereafter unless and until such Event of Default has been
waived or cured in accordance with the terms of the Credit
Agreement, the Collateral Agent shall have the right to enter and
remain upon the various premises of each such Credit Party
without cost or charge to the Collateral Agent, and use the same,
together with materials, supplies, books and records of such
Credit Party for the purpose of collecting and liquidating the
Collateral, or for preparing for sale and conducting the sale of
the Collateral, whether by foreclosure, auction or otherwise. In
addition, the Collateral Agent may remove the Collateral, or any
part thereof, from such premises and/or any records with respect
thereto, in order to effectively collect or liquidate the
Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the
Collateral Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any such Credit
Party and the Collateral Agent or any of the Lenders, or provided
by law, or delay by the Collateral Agent in exercising the same,
shall not operate as a waiver; no waiver hereunder shall be
effective unless it is in writing, signed by the party against
whom such waiver is sought to be enforced and then only to the
extent specifically stated, which in the case of the Collateral
Agent shall only be granted as provided in Section 12 hereof. To
the extent permitted by law, neither the Collateral Agent nor any
Lender, nor any party acting as attorney for the Collateral Agent
or any Lender, shall be liable hereunder for any acts or
omissions or for any error of judgment or mistake of fact or law
other than for its gross negligence, willful misconduct or
unlawful conduct hereunder. The rights and remedies of the
Collateral Agent under this Agreement shall be cumulative and not
exclusive of any other right or remedy which the Collateral Agent
or the Lenders may have.
8. Application of Proceeds. Upon the occurrence, and during
the continuance, of an Event of Default, any payments in respect of
the Secured Obligations and any proceeds of the Collateral, when
received by the Collateral Agent in cash or its equivalent, will be
applied first to costs and expenses of collection and sale and then in
reduction of the Secured Obligations for the ratable benefit of the
Lenders in such order and manner as the Collateral Agent may direct in
its sole discretion, and each such Credit Party irrevocably waives the
right to direct the application of such payments and proceeds and
acknowledges and agrees that the Collateral Agent shall have the
continuing and exclusive right to apply and reapply any and all such
payments and proceeds in the Collateral Agent's sole discretion,
notwithstanding any entry to the contrary upon any of its books and
records. Each of the Credit Parties shall remain liable to the
Collateral Agent for any deficiency. Any surplus remaining after the
full payment and satisfaction of the Secured Obligations shall be
returned to such Credit Parties or to whomsoever a court of competent
jurisdiction shall determine to be entitled thereto.
9. Costs of Counsel. If at any time hereafter the Collateral
Agent employs counsel to prepare or consider amendments, waivers or
consents with respect to this Agreement, or to take action or make a
response in or with respect to any legal or arbitral proceeding
relating to this Agreement or relating to the Collateral, or to
protect the Collateral or exercise any rights or remedies under this
Agreement or with respect to the Collateral, then the Credit Parties
agree to promptly pay upon demand any and all such reasonable costs
and expenses of the Collateral Agent, all of which costs and expenses
shall constitute Secured Obligations hereunder.
10. Continuing Agreement.
(a) This Agreement shall, subject to the provisions of
subsection (b) hereof, be a continuing agreement in every respect
and shall remain in full force and effect until all of the
Secured Obligations shall have been paid in full and all
commitments relating thereto shall have been terminated. Upon
such payment and termination, this Agreement shall automatically
be terminated and the Collateral Agent shall, upon the request
and at the expense of the Credit Parties, forthwith release all
of its liens and security interests hereunder and shall execute
and deliver to the Credit Parties, or to such person or persons
as the Credit Parties shall reasonably designate, all Uniform
Commercial Code termination statements and similar documents
prepared by the Credit Parties which the Credit Parties shall
reasonably request to evidence such termination. Notwithstanding
the foregoing all releases and indemnities provided hereunder
shall survive termination of this Agreement.
(b) Without limiting the foregoing, notwithstanding
anything else to the contrary in this Agreement, all Collateral
sold, transferred or otherwise disposed of in accordance with the
terms of the Credit Agreement shall be sold, transferred or
otherwise disposed of free and clear of the lien and security
interest created hereunder. In connection with the foregoing,
the Collateral Agent shall execute and deliver to the Credit
Parties, or to such other person or persons as the Credit Parties
shall reasonably designate, all Uniform Commercial Code
termination statements and similar documents prepared by the
Credit Parties which the Credit Parties shall reasonably request
to evidence the release of the lien and security interest created
hereunder with respect to any such Collateral.
(c) This Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Secured Obligations
is rescinded or must otherwise be restored or returned by the
Collateral Agent or any Lender as a preference, fraudulent
conveyance or otherwise under any bankruptcy, insolvency or
similar law, all as though such payment had not been made;
provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or returned,
all reasonable costs and expenses (including without limitation
any reasonable legal fees and disbursements) incurred by the
Collateral Agent or any Lender in defending and enforcing such
reinstatement shall be deemed to be included as a part of the
Secured Obligations.
11. Notices. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall
be effective (i) when personally delivered, (ii) when transmitted via
telecopy (or other facsimile device) to the number set out below,
(iii) the day following the day on which the same has been delivered
prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in the case of the
Credit Parties to the address set out below, and in the case of the
Collateral Agent at the address set out below, or at such other
address as such party may specify by written notice to the other
parties:
if to the Credit Parties:
The Manitowoc Company, Inc.
000 Xxxxx 00xx Xxxxxx
P.O. Box 66
Manitowoc, Wisconsin 54221-0066
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx and
Xxxxxx X. Xxxxxx
Phone:(000) 000-0000
Fax: (000) 000-0000
if to the Collateral Agent:
NationsBank, N.A.
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
NationsBank, N.A.
Sears Tower, Suite 2800
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Credit Parties hereby acknowledge and agree that notices and other
communications to the Borrower at its address referred to above shall
be deemed adequate notice to each of the other Credit Parties.
12. Amendments; Waivers; Modifications. This Agreement and the
provisions hereof may not be amended, waived, modified, changed,
discharged or terminated except with the prior written consent of the
Credit Parties and the Collateral Agent.
13. Successors in Interest. This Agreement shall create a
continuing security interest in the Collateral and shall be binding
upon the Credit Parties, their respective successors and assigns and
shall inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent and the
Lenders and their respective successors and assigns; provided,
however, that the Credit Parties may not assign their respective
rights or delegate their respective duties hereunder. To the extent
permitted by law, each such Credit Party hereby releases the
Collateral Agent and the Lenders, and their respective successors and
assigns, from any liability for any act or omission relating to this
Agreement or the Collateral, except for any liability arising from the
Collateral Agent's gross negligence, willful misconduct or unlawful
conduct hereunder.
14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall
be an original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
15. Headings. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
16. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NORTH CAROLINA EXCEPT TO THE EXTENT THAT THE VALIDITY,
PERFECTION OR REMEDIES HEREUNDER ARE GOVERNED BY THE LAWS OF
ANOTHER STATE. Any legal action or proceeding with respect to
this Agreement may be brought in the courts of the State of North
Carolina, or of the federal courts of the United States sitting
in Charlotte, Mecklenburg County, North Carolina, and, by
execution and delivery of this Agreement, each party hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts.
Each party further irrevocably consents to the service or process
out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address for
notices pursuant to Section 11. Nothing herein shall affect the
right of any party to serve process in any other manner permitted
by law.
(b) Each party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Credit Document
brought in the courts referred to in subsection (a) hereof and
hereby further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient
forum.
(c) EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
17. Severability. If any provision of any of this Agreement is
determined to be illegal, invalid or unenforceable, such provision
shall be fully severable and the remaining provisions shall remain in
full force and effect and shall be construed without giving effect to
the illegal, invalid or unenforceable provisions.
18. The Collateral Agent. In acting under or by virtue of this
Agreement, the Collateral Agent shall be entitled to all the rights,
authority, privileges and immunities provided in the Credit Agreement,
all of which provisions are incorporated by reference herein with the
same force and effect as if set forth herein.
19. Entirety. This Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto and
thereto, and supersede all prior agreements and understandings, oral
or written, if any, including any commitment letters or correspondence
relating to the Credit Documents or the transactions contemplated
herein and therein.
20. Survival. All representations and warranties of the Credit
Parties hereunder shall survive the execution and delivery of this
Agreement and the other Credit Documents.
21. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than the
Collateral, or by a guarantee, endorsement or property of any other
person, then the Collateral Agent or Lenders shall have the right to
proceed against such other property, guarantee or endorsement upon the
occurrence of any Event of Default and at any time thereafter unless
and until such Event of Default has been waived or cured in accordance
with the terms of the Credit Agreement, and the Collateral Agent shall
have the right, in its sole discretion, to determine which rights,
security, liens, security interests or remedies the Collateral Agent
shall at any time pursue, relinquish, subordinate, modify or take any
other action with respect thereto, without in any way modifying or
affecting any of them or any of the Collateral Agent's rights or the
Secured Obligations under this Agreement or under any other of the
Credit Documents.
22. Limitation. Notwithstanding any provision to the contrary
contained herein or in any of the other Credit Documents, the
obligations of each Credit Party hereunder shall be limited to an
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the
U.S. Bankruptcy Code or any comparable provisions of any applicable
state law.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Credit Parties have caused this Security
and Pledge Agreement to be duly executed under seal as of the date
first above written.
Borrower: THE MANITOWOC COMPANY, INC.,
a Wisconsin corporation
By: /s/ Xxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: Treas.
Other Credit Parties:
MANITOWOC MEC, INC.,
a Nevada corporation
MANITEX, INC.,
a Texas corporation
FEMCO MACHINE COMPANY, INC.,
a Nevada corporation
WEST-MANITOWOC, INC.,
a Wisconsin corporation
MANITOWOC-XXXXXXXX CORP.,
a New York corporation
NORTH CENTRAL CRANE & EXCAVATOR SALES CORP.,
a Nevada corporation
MANITOWOC WESTERN COMPANY, INC.,
a Wisconsin corporation
THE XXXXXXX GROUP, INC.,
a Delaware corporation
MANITOWOC RE-MANUFACTURING, INC.,
a Wisconsin corporation
KOLPAK MANUFACTURING COMPANY,
a Tennessee corporation
MANITOWOC EQUIPMENT WORKS, INC.,
a Nevada corporation
MANITOWOC NEVADA, INC.,
a Nevada corporation
By /s/ Xxxx Xxxxxx
------------------------
Title Treas.
--------------------
for each of the foregoing
Accepted and agreed to as of the date first above written.
NATIONSBANK, N.A., as Collateral
Agent for the Lenders
By /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SCHEDULES AND EXHIBITS
SCHEDULE A - Pledged Securities
SCHEDULE A-1 - Irrevocable Stock Power
SCHEDULE B - Permitted Collateral Locations
SCHEDULE C - Permitted Trade Names
