EXHIBIT 10.21
FORM 10-K
YEAR ENDED DECEMBER 31, 1998
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of December 18, 1998,
is entered into by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Pledgor"), in favor of Bucyrus
International, Inc., a Delaware corporation (together with its successors and
assigns, "Pledgee").
RECITALS
WHEREAS, (i) Pledgor and Pledgee have entered into the Employment
Agreement, dated as of December 9, 1998 (the "Employment Agreement"),
providing for, among other things, the terms of ▇▇▇▇▇▇▇'s employment with
Pledgee and the sale of the Purchased Shares by the Pledgee to the Pledgor,
and (ii) in connection with the sale and purchase of the Purchased Shares,
Pledgor has executed a promissory note, dated as of the date hereof (the
"Note"), in favor of ▇▇▇▇▇▇▇;
WHEREAS, it is a condition precedent to the sale of the Purchased
Shares under the Employment Agreement that Pledgor shall have entered into
this Agreement and granted the pledges provided herein;
WHEREAS, ▇▇▇▇▇▇▇ will derive substantial benefit from the loan
evidenced by the Note and wishes to grant a security interest in favor of
▇▇▇▇▇▇▇ as set forth herein; and
WHEREAS, Pledgor is the legal and beneficial owner of the shares
of capital stock listed opposite the name of Pledgor on Schedule I hereto
(collectively, the "Pledged Shares");
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, ▇▇▇▇▇▇▇ hereby agrees with Pledgee as follows:
SECTION 1. Certain Defined Terms. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned in the Employment
Agreement. The following terms as used herein shall have the following
meanings:
"Agreement" means this Pledge Agreement, as amended, restated or
supplemented or otherwise modified from time to time in accordance with its
terms.
"Employment Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Event of Default" shall have the meaning specified in Section 8
hereof.
"Indemnitee" shall have the meaning set forth in Section 15
hereof.
"Note" shall have the meaning set forth in the recitals to this
Agreement.
"Pledge Amendment" shall have the meaning set forth in Section
7(b) hereof.
"Pledged Collateral" means:
(a) the Pledged Shares and the certificates representing the
Pledged Shares and any interest of Pledgor in the entries on the books of any
financial intermediary pertaining to the Pledged Shares, and, subject to
Section 8, all dividends, cash, warrants, rights, 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 the Pledged Shares;
(b) all additional shares of, and all securities convertible
into and warrants, options and other rights to purchase, stock (whether
certificated or uncertificated and now existing or hereafter created) of any
Pledgee of the Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of Pledgor in
the entries on the books of any financial intermediary pertaining to such
additional shares, and, subject to Section 8, all dividends, cash, warrants,
rights, 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 additional shares, securities, warrants, options or other rights;
and
(c) to the extent not covered above, all Proceeds of the Pledged
Collateral described in clauses (a) and (b).
"Pledged Shares" shall have the meaning set forth in the recitals
to this Agreement.
"Pledgee" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Pledgor" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Proceeds" shall have the meaning assigned that term under the
Uniform Commercial Code (the "Code") as in effect in any relevant jurisdiction
or under relevant law and, in any event, shall include, but not be limited to,
any and all (i) proceeds of any indemnity or guaranty payable to Pledgor from
time to time with respect to any of the Pledged Collateral, and (ii) any other
amounts from time to time paid or payable under or in connection with any of
the Pledged Collateral or otherwise receivable or received when the Pledged
Collateral is or proceeds thereof are sold, collected, exchanged or otherwise
disposed of, whether such disposition is voluntary or involuntary.
"Secured Obligations" shall have the meaning set forth in Section
3 hereof.
"Securities Act" means the Securities Act of 1933, as from time to
time amended.
"Underlying Debt" shall have the meaning set forth in Section 3
hereof.
SECTION 2. Pledge of Security. Pledgor hereby pledges to Pledgee
and grants to Pledgee a first priority security interest in all of the Pledged
Collateral.
SECTION 3. Security for Obligations. This Agreement secures, and
the Pledged Collateral is collateral security for, (i) the prompt payment and
performance in full when due, whether at stated maturity, by acceleration or
otherwise (including the payment of amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code
and the operation of Sections 502(b) and 506(b) of the Bankruptcy Code or any
successor provision thereto, and all interest accruing on the payment
obligations set forth in the Note after the filing of a petition by or against
the Pledgor under the Bankruptcy Code, in accordance with the Note whether or
not the claim for such interest is allowed as a claim after such filing in any
proceeding under the Bankruptcy Code), of all obligations of Pledgor under the
Note, whether now existing or hereafter arising, voluntary or involuntary,
whether or not jointly owed with others, direct or indirect, absolute or
contingent, liquidated or unliquidated, and whether or not from time to time
decreased or extinguished and later increased, created or incurred and all or
any portion of such obligations that are paid to the extent all or any part of
such payment is avoided or recovered directly or indirectly from Pledgee as a
preference, fraudulent transfer or otherwise (all such obligations being the
"Underlying Debt"), and (ii) all obligations or liabilities of every nature of
Pledgor now or hereafter existing under this Agreement (all such obligations
of Pledgor, together with the Underlying Debt, being the "Secured
Obligations").
SECTION 4. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Pledgee pursuant hereto and shall be
in suitable form for transfer by delivery, or, as applicable, shall be
accompanied by ▇▇▇▇▇▇▇'s endorsement, where necessary, of duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Pledgee. If an Event of Default shall have occurred and be
continuing, Pledgee shall have the right, at any time in its discretion and
without notice to Pledgor, to transfer to or to register in the name of
Pledgee or any of its nominees any or all of the Pledged Collateral, subject
only to the revocable rights specified in Section 8(a) hereof. In addition,
if an Event of Default shall have occurred and be continuing, Pledgee shall
have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments
of smaller or larger denominations.
SECTION 5. Representations and Warranties. Pledgor hereby
represents and warrants to Pledgee as follows:
(a) Pledged Collateral. There are no outstanding options,
warrants, rights to subscribe, stock purchase rights or other agreements
granted or entered into by Pledgor outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or
sale of, any Pledged Shares.
(b) Ownership of Pledged Collateral. Pledgor is the sole legal,
record and beneficial owner of the Pledged Collateral pledged by Pledgor free
and clear of any lien except for the security interest created by this
Agreement.
(c) Consents. No consent of any other party (including, without
limitation, stockholders or creditors of Pledgor or any Person under any
contractual obligation of Pledgor) and no consent, authorization, approval or
other action by, and no notice to or filing with, any governmental authority
or regulatory body is required either (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement and the grant by Pledgor of the
security interest granted hereby or for the execution, delivery or performance
of this Agreement by ▇▇▇▇▇▇▇, or (ii) for the exercise by Pledgee of the
voting or other rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement (except (A) those
which have been obtained or made, and (B) as may be required in connection
with a disposition of Pledged Collateral by laws affecting the offering and
sale of securities generally or the disposition of collateral generally).
(d) Neither the execution and delivery of this Agreement by the
Pledgor nor the consummation of the transactions herein contemplated nor the
fulfillment of the terms hereof (i) violate the terms of any agreement,
indenture, mortgage, deed of trust, equipment lease, instrument or other
document to which the Pledgor is a party or by which it may be bound or to
which any of its properties or assets may be subject, which violation or
conflict would have a material adverse effect on the financial condition of
the Pledgor or on the value of the Pledged Collateral, or a material adverse
effect on the security interests hereunder, (ii) conflict with any law, order,
rule or regulation applicable to the Pledgor, of any court or any government,
regulatory body or administrative agency or other governmental body having
jurisdiction over the Pledgor or its properties, or (iii) result in or require
the creation or imposition of any lien (other than the lien contemplated
hereby in favor of Pledgee), upon or with respect to any of the property now
owned or hereafter acquired by the Pledgor or the Pledgee, which violation or
conflict would have a material adverse effect on the financial condition,
business, assets or liabilities of the Pledgor and the Pledgee taken as a
whole, or on the value of the Pledged Collateral or a material adverse effect
on the security interests hereunder.
(e) Perfection. The pledge and delivery to Pledgee of the
Pledged Collateral pursuant to this Agreement creates a valid and perfected
first priority security interest of Pledgee in the Pledged Collateral of
Pledgor, securing the payment and performance of the Secured Obligations,
subject to no liens, and all actions necessary or desirable to perfect and
protect such security interest have been duly taken.
SECTION 6. Certain Covenants. Pledgor hereby covenants that,
until the Secured Obligations have been indefeasibly paid in full and the Note
has been extinguished and cancelled, Pledgor will:
(a) not (i) sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the Pledged
Collateral pledged hereunder by ▇▇▇▇▇▇▇, or (ii) create or permit to exist any
lien upon or with respect to any of the Pledged Collateral, except for the
security interest under this Agreement;
(b) (i) at any time and from time to time, upon request of the
Pledgee, to give, execute, file and/or record any notice, financing statement,
continuation statement, instrument, document or agreement that the Pledgee
shall consider reasonably necessary or desirable to create, preserve,
continue, perfect or validate any security interest granted hereunder or which
the Pledgee may consider reasonably necessary or desirable to exercise or
enforce its rights hereunder with respect to such security interest, (ii) to
give the Pledgee notice of any litigation filed or claim asserted against the
Pledgor relating to or potentially affecting the Pledged Collateral, (iii) if
requested by the Pledgee, to receive and collect the Proceeds, in trust and as
the property of the Pledgee, and to immediately endorse as appropriate and
deliver such Proceeds to the Pledgee when requested by the Pledgee in the
exact form in which they are received, (iv) not to commingle the Proceeds or
collections thereunder with other property, (v) to keep complete and accurate
records regarding all of the Proceeds, (vi) to provide any service and do
other acts or things necessary to keep the Pledged Collateral and the Proceeds
free and clear of all defenses, rights of offset and counterclaim, and (vii)
to pledge hereunder, immediately upon its acquisition (directly or indirectly)
thereof, any and all additional shares of Common Stock of Pledgee, or any
securities convertible into or exercisable for shares of Common Stock of
Pledgee.
(c) (i) pay promptly the obligations set forth under the Note
when due, (ii) indemnify the Pledgee against all loss, claims, demands and
liabilities of every kind arising from the Pledged Collateral and the
transactions and other agreements and undertakings contemplated hereby, and
(iii) pay all expenses, including reasonable attorneys' fees, incurred by the
Pledgee in the preservation, realization, enforcement and exercise of its
rights, powers and remedies hereunder.
SECTION 7. Further Assurances; Pledge Amendments.
(a) Pledgor agrees that at any time and from time to time, at
the expense of Pledgor, Pledgor shall promptly execute and deliver all further
instruments and documents, and take all further actions, that may be necessary
or appropriate, or that Pledgee may reasonably request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Pledgee to exercise and enforce its rights and remedies hereunder
with respect to any Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged
hereunder, promptly (and in any event within ten (10) days) deliver to Pledgee
a Pledge Amendment, duly executed by ▇▇▇▇▇▇▇, in substantially the form of
Schedule II hereto (a "Pledge Amendment"), in respect of the additional shares
of stock or other securities to be pledged pursuant to this Agreement.
Pledgor hereby authorizes Pledgee to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares listed on any Pledge Amendment
delivered to Pledgee shall for all purposes hereunder be considered Pledged
Collateral.
SECTION 8. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default (as defined below) shall have
occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral
or any part thereof for any purpose not in violation of the terms of the
Employment Agreement or the Note. It is understood, however, that
neither (A) the voting by Pledgor of any Pledged Shares for or Pledgor's
consent to the election of directors at a regularly scheduled annual or
other meeting of stockholders or with respect to incidental matters at
any such meeting, nor (B) Pledgor's consent to or approval of any action
otherwise permitted under the terms of the Employment Agreement or the
Note shall be deemed inconsistent with the terms of any of such
documents within the meaning of this Section 8(a)(i), and no notice of
any such voting or consent need be given to Pledgee.
(ii) Pledgor shall be entitled to receive and retain, and
to utilize free and clear of the lien of this Agreement, any and all
dividends and other distributions paid in respect of the Pledged
Collateral; provided, however, that any and all dividends, interest and
other distributions paid or payable in additional equity securities, or
warrants, options or similar rights to acquire additional equity
securities shall be, and shall forthwith be delivered to Pledgee to hold
as, Pledged Collateral and shall, if received by Pledgor, be received in
trust for the benefit of Pledgee, be segregated from the other property
or funds of Pledgor and be forthwith delivered to Pledgee as Pledged
Collateral in the same form as so received (with all necessary
endorsements).
(iii) Pledgee shall promptly execute and deliver (or cause
to be executed and delivered) to Pledgor all such proxies, dividend
payment orders and other instruments as Pledgor may from time to time
reasonably request for the purpose of enabling Pledgor to exercise the
voting and other consensual rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends, principal
or interest payments which it is authorized to receive and retain
pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event
of Default (as defined below):
(i) Upon written notice from Pledgee to Pledgor, all
rights of Pledgor to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to Section
8(a)(i) shall cease, and all such rights shall thereupon become vested
in Pledgee who shall thereupon have the right to exercise such voting
and other consensual rights.
(ii) All rights of Pledgor to receive the dividends,
interest and other payments which it would otherwise be authorized to
receive and retain pursuant to Section 8(a)(ii) shall cease, and all
such rights shall thereupon become vested in Pledgee who shall thereupon
have the right to receive and hold as Pledged Collateral such dividends,
interest and other payments which shall, upon written notice from
Pledgee, be paid to Pledgee.
(iii) All dividends, interest and other payments which are
received by Pledgor contrary to the provisions of paragraph (ii) of this
Section 8(b) shall be received in trust for the benefit of Pledgee,
shall be segregated from other funds of Pledgor and shall forthwith be
paid over to Pledgee as Pledged Collateral in the same form as so
received (with any necessary endorsements).
(c) In order to permit Pledgee to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
8(b)(i) hereof and to receive all dividends and other distributions which it
may be entitled to receive under Section 8(a)(ii) hereof or Section 8(b)(ii)
hereof, Pledgor shall promptly execute and deliver (or cause to be executed
and delivered) to Pledgee all such proxies, dividend payment orders and other
instruments as Pledgee may from time to time reasonably request.
(d) Each of the following shall constitute an event of default
(an "Event of Default") hereunder: (i) Pledgor's failure to pay, within
fifteen (15) days after the date when such payment is due, any payment of
principal or interest on the Note, (ii) Pledgor's failure to observe or
perform, within fifteen (15) days after receipt of notice of default from
Pledgee, any covenant or agreement contained in this Agreement or in the Note,
(iii) if any representation, warranty, certification or statement made by the
Pledgor in this Agreement or in any certificate or other document delivered
pursuant to the Note or this Agreement shall prove to have been incorrect in
any material respect when made or deemed made, (iv) the appointment of a
receiver or a trustee of all or part of the Pledgor's property, (v) an
assignment for the benefit of the Pledgor's creditors, (vi) the commencement
or filing of any voluntary proceeding or petition by the Pledgor under any
bankruptcy or insolvency law or any law relating to the relief of debtors or
readjustment of indebtedness, (vii) the commencement or filing of any
involuntary proceeding or petition against the Pledgor under any bankruptcy or
insolvency law or any law relating to the relief of debtors or readjustment of
indebtedness, which proceeding or petition has not been dismissed within sixty
(60) days after the commencement or filing thereof, (viii) the appointment of
a receiver, custodian, trustee or liquidator for any part of the assets or
property of the Pledgor, (ix) the failure of the Pledgor generally to pay his
debts as they become due, and (x) the failure of the Pledgee to have a first
priority security interest in the Pledged Collateral.
SECTION 9. Remedies upon Default. If any Event of Default shall
have occurred and be continuing:
(a) Pledgee may exercise in respect of the Pledged Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code as in effect in the State of Wisconsin (or
any other state with jurisdiction over the Pledged Collateral) at that time,
and Pledgee may also in its sole discretion, without notice (except as
specified below), sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or at
any of Pledgee's offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such
other terms as are commercially reasonable, irrespective of the impact of any
such sales on the market price of the Pledged Collateral. Pledgee may be the
purchaser of any or all of the Pledged Collateral at any such sale and shall
be entitled, for the purpose of bidding and making settlement or payment of
the purchase price for all or any portion of the Pledged Collateral sold at
any such public sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price of any Pledged Collateral payable by
Pledgee at such sale. Each purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of Pledgor, and
Pledgor hereby waives (to the extent permitted by law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter
enacted. ▇▇▇▇▇▇▇ agrees that, to the extent notice of sale shall be required
by law, at least ten (10) days' notice to Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Pledgee shall not be obligated to make
any sale of Pledged Collateral regardless of notice of sale having been given.
Pledgee may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Pledgee arising by reason of the fact
that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a
public sale, even if Pledgee accepts the first offer received and does not
offer such Pledged Collateral to more than one offeree. If the proceeds of
any sale or other disposition of the Pledged Collateral are insufficient to
pay all the Secured Obligations, Pledgor shall be liable for the deficiency
and the fees of any attorneys employed by Pledgee to collect such deficiency.
(b) If Pledgee determines to exercise its right to sell any or
all of the Pledged Collateral, upon written request, Pledgor shall furnish to
Pledgee all such information as Pledgee may reasonably request in order to
facilitate such sale.
SECTION 10. Pledgee May Perform. If Pledgor fails to perform any
agreement contained herein, then, during an Event of Default, Pledgee may
itself perform, or cause performance of, such agreement, and the expenses of
Pledgee incurred in connection therewith shall be payable by Pledgor under
Section 15(b) hereof.
SECTION 11. Pledgee Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Pledgee as ▇▇▇▇▇▇▇'s attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time, during the continuation of an Event of Default,
in Pledgee's reasonable discretion to take any action and to execute any
instrument, including but not limited to financing and continuation
statements, which Pledgee may deem necessary or advisable, subject to the
terms and conditions of this Agreement, to accomplish the purposes of this
Agreement, including, without limitation, (a) to receive, endorse and collect
all instruments made payable to Pledgor representing any dividend, principal
or interest payment or other distribution in respect of the Pledged Collateral
or any part thereof and to give full discharge for the same, and (b) to ask,
demand, collect, sue for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Pledged Collateral, and to file any claims or take any action or institute any
proceedings which Pledgee may deem necessary or desirable for the collection
of any of the Pledged Collateral or to enforce the rights of Pledgee with
respect to any of the Pledged Collateral.
SECTION 12. Standard of Care. The powers conferred on Pledgee
hereunder are solely to protect its interest in the Pledged Collateral and
shall not impose on it any duty to exercise such powers. Pledgee shall be
deemed to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment substantially equivalent to that which Pledgee accords its own
property consisting of negotiable securities, it being understood that Pledgee
shall have no responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Pledged Collateral, whether or not Pledgee has or is deemed to
have knowledge of such matters, (b) taking any necessary steps (other than
steps taken in accordance with the standard of care set forth above to
maintain possession of the Pledged Collateral) to preserve rights against any
parties with respect to any Pledged Collateral, (c) taking any necessary steps
to collect or realize upon the Secured Obligations or any guarantee therefor,
or any part thereof, or any of the Pledged Collateral, or (d) initiating any
action to protect the Pledged Collateral against the possibility of a decline
in market value.
SECTION 13. Application of Proceeds. All Proceeds received by
Pledgee in respect of any sale of, collection from, or other realization upon
all or any part of the Pledged Collateral may, in the discretion of Pledgee,
be held by Pledgee as Pledged Collateral for, and/or then or at any time
thereafter applied in whole or in part by Pledgee against the Secured
Obligations in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, and all expenses, liabilities and
advances made or incurred by Pledgee in connection therewith and all
amounts for which Pledgee is entitled to indemnification and
reimbursement hereunder and all advances made by Pledgee hereunder for
the account of the Pledgor or for the payment of all costs and expenses
paid or incurred by Pledgee in connection with the exercise of any right
or remedy hereunder, all in accordance with Section 15 hereof;
SECOND: To the payment in full of all Secured Obligations,
including those obligations set forth in the Note; and
THIRD: To the payment to or upon the order of Pledgor, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from
such proceeds.
SECTION 14. Actions by Pledgee. During the continuation of an
Event of Default, Pledgee shall have the right hereunder, in its sole
discretion, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action with
respect to the Pledged Collateral (including, without limitation, the release
or substitution of Pledged Collateral).
SECTION 15. Indemnity and Expenses.
(a) Pledgor agrees to indemnify Pledgee and each of the
officers, directors, agents, employees and affiliates of Pledgee (each an
"Indemnitee"), from and against any and all claims, losses and liabilities in
any way relating to, growing out of or resulting from this Agreement and the
transactions contemplated hereby (including, without limitation, enforcement
of this Agreement), except claims, losses or liabilities resulting from the
gross negligence or willful misconduct of the Indemnitee seeking
indemnification.
(b) Pledgor will upon demand pay to Pledgee the amount of any
and all reasonable costs and expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which Pledgee may incur
in connection with (i) the administration of this Agreement, (ii) the custody
or preservation of, or the sale of, collection from, or other realization
upon, any of the Pledged Collateral, (iii) the exercise or enforcement of any
of the rights of Pledgee hereunder, or (iv) the failure by ▇▇▇▇▇▇▇ to perform
or observe any of the provisions hereof.
SECTION 16. Waivers of Pledgor.
(a) Pledgor hereby waives any right to require Pledgee to:
(i) proceed against Pledgor, any guarantor of any of the Secured Obligations
or any other person or entity, (ii) proceed against or exhaust any other
security held from Pledgor or any other person or entity, (iii) give notice to
Pledgor of the terms, time and place of any public or private sale of the
Pledged Collateral or any other security, or otherwise comply with Section
9504 of the Uniform Commercial Code (except as set forth in this Agreement),
(iv) pursue any other remedy in Pledgee's power, or (v) make or give any
presentments, demands for performance, notices of nonperformance, protests,
notices of protest or notices of dishonor in connection with any obligations
or evidences of indebtedness which constitute in whole or in part the Secured
Obligations or in connection with the creation of new or additional Secured
Obligations;
(b) Pledgor waives any defense arising by reason of: (i) any
disability or other defense of Pledgor or any other entity, including, without
limitation, any defense based on or arising out of the unenforceability of any
of the Secured Obligations, legal or equitable discharge of the Secured
Obligations or this Agreement or any statute of limitations affecting
Pledgor's liability hereunder, (ii) the cessation from any cause whatsoever,
other than payment in full, of the Secured Obligations or the release or
substitution of any sureties or guarantors of the Secured Obligations, (iii)
any act or omission (other than as a result of the gross negligence or willful
misconduct of the Pledgee) by Pledgee which directly or indirectly results in
or aids the discharge of Pledgor or any of the Secured Obligations by
operation of law or otherwise, (iv) the release of any other collateral
securing the Secured Obligations or the failure by Pledgee to perfect or
maintain the perfection of any such other collateral, (v) any modification of
the Secured Obligations, in any form whatsoever, including, but not limited to
the renewal, extension, acceleration or other change in the time for payment
of the Secured Obligations, and any change in the terms of the Secured
Obligations, including, but not limited to, any increase or decrease of the
rate of interest on the Secured Obligations, and (vi) any law limiting the
liability of or exonerating guarantors or sureties; and
(c) until all the Secured Obligations shall have been paid in
full, Pledgor waives any right to enforce any remedy which Pledgee now has or
may hereafter have against any person or entity guaranteeing or securing the
Secured Obligations, and waives any benefit of, or any right to participate in
any security whatsoever now or hereafter held by Pledgee for the Secured
Obligations.
SECTION 17. Continuing Security Interest; Transfer of
Indebtedness. This Agreement shall create a continuing security interest in
the Pledged Collateral and shall, unless released and/or terminated,
(a) remain in full force and effect until indefeasible payment in full of all
Secured Obligations, (b) be binding upon Pledgor, its successors and assigns,
and (c) inure, together with the rights and remedies of Pledgee hereunder, to
the benefit of Pledgee and its successors, and permitted transferees and
assigns. Without limiting the generality of the foregoing clause (c), upon
any assignment by Pledgee of any Underlying Debt of the Borrower held by it to
any other person or entity, such other person or entity shall thereupon become
vested with all the benefits in respect thereof granted to Pledgee herein or
otherwise. Upon the date upon which the Secured Obligations have been
indefeasibly paid and performed in full and the Note has been extinguished and
cancelled, this Agreement shall automatically terminate, and (i) Pledgor shall
be entitled to the return, upon its request and at its expense, against
receipt and without recourse to Pledgee, of such of the Pledged Collateral
pledged by Pledgor hereunder as shall not have been sold or otherwise applied
pursuant to the terms hereof prior to such request, (ii) Pledgee's security
interest in and lien on such Pledged Collateral shall be simultaneously
released upon the making of such request, and (iii) Pledgee shall, at
▇▇▇▇▇▇▇'s expense, execute and/or deliver such documents as Pledgor shall
reasonably request to evidence such release.
SECTION 18. No Waiver by Pledgee; Authority of Pledgor. No
failure on the part of Pledgee to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by
Pledgee of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein provided are cumulative to the fullest extent permitted by law
and are not exclusive of any remedies provided by law. It is not necessary
for Pledgee to inquire into the powers of Pledgor or the officers, directors
or agents acting or purporting to act on behalf of ▇▇▇▇▇▇▇.
SECTION 19. Amendment, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by Pledgor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by Pledgee, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 20. Addresses for Notices. Unless otherwise specifically
provided herein, any notice or other communication herein required or
permitted to be given shall be given as provided under Section 12 of the
Employment Agreement.
SECTION 21. Governing Law; Terms. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF WISCONSIN, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
GRANTED HEREUNDER, OR ANY REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF WISCONSIN. Unless otherwise defined herein, terms defined in Article
9 of the Code are used herein as therein defined.
SECTION 22. Severability. Any provisions of this Agreement which
are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdictions, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 23. Consent to Jurisdiction and Service of Process. (a)
Any legal action or proceeding with respect to this Agreement and any action
for enforcement of any judgment in respect thereof may be brought in the
courts of the State of Wisconsin or of the United States of America for the
Eastern District of Wisconsin, and, by execution and delivery of this
Agreement, each of Pledgor and Pledgee hereby accepts for itself and in
respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and any appellate courts from any
thereof. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that Pledgee may otherwise
have to bring any action or proceeding relating to this Agreement against
Pledgor or its properties in the courts of any jurisdiction.
(b) Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred
to in paragraph (a) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 20 hereof. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 24. Marshaling; Payments Set Aside. Pledgee shall not be
under any obligation to marshal any assets in favor of Pledgor or any other
party or against or in payment of any or all of the Secured Obligations. To
the extent that Pledgor makes a payment or payments to Pledgee or Pledgee
enforces its security interests or exercises its rights of setoff, and such
payment or payments or proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor, shall be revived and continued in full force and effect as
if such payment had not been made or such enforcement or setoff had not
occurred.
SECTION 25. Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement or be given any substantive effect.
SECTION 26. Counterparts. This Agreement and any amendments,
waivers, consents or supplements may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ has caused this Pledge Agreement to be
duly executed and delivered as of the date first above written.
PLEDGOR:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
PLEDGEE:
BUCYRUS INTERNATIONAL, LTD.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
SCHEDULE I
to the Pledge Agreement
Attached to and forming a part of the Pledge Agreement, dated as
of December 18, 1998, between Pledgor and Pledgee.
Pledgor: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Percent of
Shares Issued
Class Stock Number and
Stock Pledgee of Stock Certificate Nos. of Shares Outstanding
Bucyrus Common 11 5,000 .3%
International,
Ltd.
I-1
SCHEDULE II
to the Pledge Agreement
[FORM OF PLEDGE AMENDMENT]
This Pledge Amendment, dated [_______ __, ____], is delivered
pursuant to Section 7 of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Pledge Agreement, dated as of December 18, 1998, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
Pledgee (the "Pledge Agreement"; capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become
part of the Pledged Collateral and shall secure the Secured Obligations as
provided in the Pledge Agreement.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
Percent of
Shares Issued
Class Stock Number and
Stock Issuer of Stock Certificate Nos. of Shares Outstanding
II-1