EXHIBIT 10.6
PLEDGE AGREEMENT
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This PLEDGE AGREEMENT, dated as of April 2, 2004 (together with all
amendments, restatements, supplements or other modifications, if any, from time
to time hereto, this "Agreement") between DARLING INTERNATIONAL INC., a Delaware
corporation ("Pledgor") and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation in its capacity as Administrative Agent for Lenders ("Administrative
Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof by and among Pledgor, the Persons named therein as Credit Parties,
Administrative Agent, Revolving Credit Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of Pledgor;
WHEREAS, Pledgor is the record and beneficial owner of the shares of
Stock listed in Part A of Schedule I hereto and the owner of the promissory
notes and instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits directly from the credit facilities made
available to Pledgor under the Credit Agreement;
WHEREAS, in order to induce Administrative Agent and Lenders to make
the Loans and to incur the Letter of Credit Obligations as provided for in the
Credit Agreement, Pledgor has agreed to pledge the Pledged Collateral to
Administrative Agent in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Pledged Collateral" has the meaning assigned to such term in Section
2 hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto.
"Pledged Shares" means those shares listed on Part A of Schedule I
hereto.
"Secured Obligations" has the meaning assigned to such term in
Section 3 hereof.
2. Pledge. Pledgor hereby pledges to Administrative Agent, and grants
to Administrative Agent for itself and the benefit of Lenders, a first priority
security interest in all of the following (collectively, the "Pledged
Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, distributions, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(b) such portion, as determined by Administrative Agent as provided
in Section 6(d) below, of any additional shares of stock of a Pledged Entity
from time to time acquired by Pledgor in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates representing such
additional shares, and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Stock;
(c) the Pledged Indebtedness and the promissory notes or instruments
evidencing the Pledged Indebtedness, and all interest, cash, instruments and
other property and assets from time to time received, receivable or otherwise
distributed in respect of the Pledged Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other instruments,
together with such promissory notes and instruments, and all interest, cash,
instruments and other property and assets from time to time received, receivable
or otherwise distributed in respect of that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of the
Obligations pursuant to and in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Administrative Agent, for itself and
the benefit of Lenders, pursuant hereto. All Pledged Shares shall be accompanied
by duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Administrative Agent and all promissory notes or other
instruments evidencing the Pledged Indebtedness shall be endorsed by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Administrative Agent that:
(a) Pledgor is, and at the time of delivery of the Pledged Shares to
Administrative Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of any Lien
thereon or affecting the title thereto, except for any Lien created by this
Agreement; Pledgor is and at the time of delivery of the Pledged Indebtedness to
Administrative Agent will be, the sole owner of such Pledged Collateral free and
clear of any Lien thereon or affecting title thereto, except for any Lien
created by this Agreement;
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(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness has been
duly authorized, authenticated or issued and delivered by, and is the legal,
valid and binding obligations of, the Pledged Entities; and no such Pledged
Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge, assign,
transfer, deliver, deposit and set over the Pledged Collateral pledged by
Pledgor to Administrative Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such issuance or
transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and are
presently represented by the certificates listed on Part A of Schedule I hereto.
As of the date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority or any
other Person is required (i) for the pledge by Pledgor of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by Pledgor, or (ii) for the exercise by Administrative Agent 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 as may be required
in connection with such disposition by laws affecting the offering and sale of
securities generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on and a
first priority perfected security interest in favor of the Administrative Agent
for the benefit of Administrative Agent and Lenders in the Pledged Collateral
and the proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and delivered
by Pledgor and constitutes a legal, valid and binding obligation of Pledgor
enforceable against Pledgor in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity);
(i) The Pledged Shares constitute 100% of the issued and outstanding
shares of Stock of each Pledged Entity; and
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(j) Except as disclosed on Part B of Schedule I, none of the Pledged
Indebtedness is subordinated in right of payment to other Indebtedness (except
for the Secured Obligations) or subject to the terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Administrative Agent,
Pledgor will not sell, assign, transfer, pledge, or otherwise encumber any of
its rights in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral or ▇▇▇▇▇
▇ ▇▇▇▇ in the Pledged Collateral, unless otherwise expressly permitted by the
Credit Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge and
deliver all such instruments and take all such actions as Administrative Agent
from time to time may reasonably request in order to ensure to Administrative
Agent and Lenders the benefits of the Liens in and to the Pledged Collateral
intended to be created by this Agreement, including the filing of any necessary
Code financing statements, which may be filed by Administrative Agent with or
(to the extent permitted by law) without the signature of Pledgor, and will
cooperate with Administrative Agent, at Pledgor's expense, in obtaining all
necessary approvals and making all necessary filings under federal, state, local
or foreign law in connection with such Liens or any sale or transfer of the
Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged Collateral
and the Liens of Administrative Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens (at Pledgor's
expense); and
(d) Pledgor will, upon obtaining ownership of any additional Stock or
promissory notes or instruments of a Pledged Entity or Stock or promissory notes
or instruments otherwise required to be pledged to Administrative Agent pursuant
to any of the Loan Documents, which Stock, notes or instruments are not already
Pledged Collateral, promptly (and in any event within five (5) days) deliver to
Administrative Agent a Pledge Amendment, duly executed by Pledgor, in
substantially the form of Schedule II hereto (a "Pledge Amendment") in respect
of any such additional Stock, notes or instruments, pursuant to which Pledgor
shall pledge to Administrative Agent all of such additional Stock, notes and
instruments. Pledgor hereby authorizes Administrative Agent to attach each
Pledge Amendment to this Agreement and agrees that all Pledged Shares and
Pledged Indebtedness listed on any Pledge Amendment delivered to Administrative
Agent shall for all purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Event of Default shall have
occurred and be continuing and until written notice shall be given to Pledgor in
accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and give
consents with respect to the Pledged Collateral, or any part thereof for all
purposes not inconsistent with the provisions of this Agreement, the Credit
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Agreement or any other Loan Document; provided, however, that no vote shall be
cast, and no consent shall be given or action taken, which would have the effect
of impairing the position or interest of Administrative Agent in respect of the
Pledged Collateral or which would authorize, effect or consent to (unless and to
the extent expressly permitted by the Credit Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Administrative Agent;
(iv) any change in the authorized number of shares, the stated
capital or the authorized share capital of a Pledged Entity or the
issuance of any additional shares of its Stock; or
(v) the alteration of the voting rights with respect to the Stock
of a Pledged Entity; and
(b)
(i) Pledgor shall be entitled, from time to time, to collect and
receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect
of any Pledged Collateral, and instruments and other property
received, receivable or otherwise distributed in respect of, or in
exchange for, any Pledged Collateral; (B) dividends and other
distributions paid or payable in cash in respect of any Pledged Shares
in connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-in
capital of a Pledged Entity; and (C) cash paid, payable or otherwise
distributed, in respect of principal of, or in redemption of, or in
exchange for, any Pledged Collateral; provided, however, that until
actually paid all rights to such distributions shall remain subject to
the Lien created by this Agreement; and
(ii) all dividends and interest (other than such cash dividends
and interest as are permitted to be paid to Pledgor in accordance with
clause (i) above) and all other distributions in respect of any of the
Pledged Shares or Pledged Indebtedness, whenever paid or made, shall
be delivered to Administrative Agent to hold as Pledged Collateral and
shall, if received by Pledgor, be received in trust for the benefit of
Administrative Agent, be segregated from the other property or funds
of Pledgor, and be forthwith delivered to Administrative Agent as
Pledged Collateral in the same form as so received (with any necessary
indorsement).
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8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written notice to
Pledgor, Administrative Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the name of
its nominee the whole or any part of the Pledged Collateral, to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations, to exercise the
voting and all other rights as a holder with respect thereto, to collect and
receive all cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of the time
and place of any public sale or of the time at which a private sale is to take
place (which notice Pledgor agrees is commercially reasonable) the whole or any
part of the Pledged Collateral and to otherwise act with respect to the Pledged
Collateral as though Administrative Agent was the outright owner thereof. Any
sale shall be made at a public or private sale at Administrative Agent's place
of business, or at any place to be named in the notice of sale, either for cash
or upon credit or for future delivery at such price as Administrative Agent may
deem fair, and Administrative Agent may be the purchaser of the whole or any
part of the Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or any right of redemption. Each sale shall
be made to the highest bidder, but Administrative Agent reserves the right to
reject any and all bids at such sale which, in its discretion, it shall deem
inadequate. Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of property at
sale are hereby waived and any sale hereunder may be conducted by an auctioneer
or any officer or agent of Administrative Agent. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS
ADMINISTRATIVE AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT
TO THE PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH
FULL POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF ADMINISTRATIVE AGENT AS
PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE PLEDGED SHARES,
THE APPOINTMENT OF ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL
INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES
TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD BE ENTITLED (INCLUDING GIVING OR
WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF
SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE,
AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF
ANY PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR ADMINISTRATIVE
AGENT THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE
FOREGOING, ADMINISTRATIVE AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH
RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO
OR FOR ANY DELAY IN DOING SO.
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(b) If, at the original time or times appointed for the sale of the
whole or any part of the Pledged Collateral, the highest bid, if there be but
one sale, shall be inadequate to discharge in full all the Secured Obligations,
or if the Pledged Collateral be offered for sale in lots, if at any of such
sales, the highest bid for the lot offered for sale would indicate to
Administrative Agent, in its discretion, that the proceeds of the sales of the
whole of the Pledged Collateral would be unlikely to be sufficient to discharge
all the Secured Obligations, Administrative Agent may, on one or more occasions
and in its discretion, postpone any of said sales by public announcement at the
time of sale or the time of previous postponement of sale, and no other notice
of such postponement or postponements of sale need be given, any other notice
being hereby waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Administrative Agent in its sole discretion
determines, following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise of its
rights (when permitted under this Section 8) to sell the whole or any part of
the Pledged Shares hereunder, it is necessary or advisable to effect a public
registration of all or part of the Pledged Collateral pursuant to the Securities
Act of 1933, as amended (or any similar statute then in effect) (the "Act"),
Pledgor shall, in an expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement with respect to the
Pledged Shares and in good faith use commercially reasonable efforts
to cause such registration statement to become and remain effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Administrative Agent shall
desire to sell or otherwise dispose of the Pledged Shares;
(iii) Furnish to Administrative Agent such numbers of copies of a
prospectus and a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as Administrative
Agent may request in order to facilitate the public sale or other
disposition of the Pledged Shares by Administrative Agent;
(iv) Use commercially reasonable efforts to register or qualify
the Pledged Shares covered by such registration statement under such
other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Administrative Agent shall request,
and do such other reasonable acts and things as may be required of it
to enable Administrative Agent to consummate the public sale or other
disposition in such jurisdictions of the Pledged Shares by
Administrative Agent;
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(v) Furnish, at the request of Administrative Agent, on the date
that shares of the Pledged Collateral are delivered to the
underwriters for sale pursuant to such registration or, if the
security is not being sold through underwriters, on the date that the
registration statement with respect to such Pledged Shares becomes
effective, (A) an opinion, dated such date, of the independent counsel
representing such registrant for the purposes of such registration,
addressed to the underwriters, if any, and in the event the Pledged
Shares are not being sold through underwriters, then to Administrative
Agent, in customary form and covering matters of the type customarily
covered in such legal opinions and (B) a comfort letter, dated such
date, from the independent certified public accountants of such
registrant, addressed to the underwriters, if any, and in the event
the Pledged Shares are not being sold through underwriters, then to
Administrative Agent, in a customary form and covering matters of the
type customarily covered by such comfort letters and as the
underwriters or Administrative Agent shall reasonably request. The
opinion of counsel referred to above shall additionally cover such
other legal matters with respect to the registration in respect of
which such opinion is being given as Administrative Agent may
reasonably request. The letter referred to above from the independent
certified public accountants shall additionally cover such other
financial matters (including information as to the period ending not
more than five (5) Business Days prior to the date of such letter)
with respect to the registration in respect of which such letter is
being given as Administrative Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of
at least 12 months beginning with the first full month after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the National Association of Securities Dealers,
Inc.), printing expenses, fees and disbursements of counsel for the registrant,
the fees and expenses of counsel for Administrative Agent, expenses of the
independent certified public accountants (including any special audits incident
to or required by any such registration) and expenses of complying with the
securities or blue sky laws of any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Administrative Agent shall determine to
exercise its right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the Act, Administrative
Agent may, in its discretion (subject only to applicable requirements of law),
sell such Pledged Collateral or part thereof by private sale in such manner and
under such circumstances as Administrative Agent may deem necessary or
advisable, but subject to the other requirements of this Section 8, and shall
not be required to effect such registration or to cause the same to be effected.
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Without limiting the generality of the foregoing, in any such event,
Administrative Agent in its discretion (x) may, in accordance with applicable
securities laws, proceed to make such private sale notwithstanding that a
registration statement for the purpose of registering such Pledged Collateral or
part thereof could be or shall have been filed under said Act (or similar
statute), (y) may approach and negotiate with a single possible purchaser to
effect such sale, and (z) may restrict such sale to a purchaser who is an
accredited investor under the Act and who will represent and agree that such
purchaser is purchasing for its own account, for investment and not with a view
to the distribution or sale of such Pledged Collateral or any part thereof. In
addition to a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public without
registration under the Act (or similar statute) at the time of any proposed sale
pursuant to this Section 8, then Administrative Agent shall not be required to
effect such registration or cause the same to be effected but, in its discretion
(subject only to applicable requirements of law), may require that any sale
hereunder (including a sale at auction) be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any Person
permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Administrative Agent may, in its
discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in
compliance with the Bankruptcy Code and other laws affecting the
enforcement of creditors' rights and the Act and all applicable state
securities laws.
(f) Pledgor recognizes that Administrative Agent may be unable to
effect a public sale of any or all the Pledged Collateral and may be compelled
to resort to one or more private sales thereof in accordance with clause (e)
above. Pledgor also acknowledges that any such private sale may result in prices
and other terms less favorable to the seller than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall not be deemed to have been made in a commercially unreasonable manner
solely by virtue of such sale being private. Administrative Agent shall be under
no obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit the Pledged Entity to register such securities for
public sale under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable law
that following the occurrence and during the continuance of an Event of Default
it will not at any time plead, claim or take the benefit of any appraisal,
valuation, stay, extension, moratorium or redemption law now or hereafter in
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force in order to prevent or delay the enforcement of this Agreement, or the
absolute sale of the whole or any part of the Pledged Collateral or the
possession thereof by any purchaser at any sale hereunder, and Pledgor waives
the benefit of all such laws to the extent it lawfully may do so. Pledgor agrees
that it will not interfere with any right, power and remedy of Administrative
Agent provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, or the exercise or beginning of the exercise
by Administrative Agent of any one or more of such rights, powers or remedies.
No failure or delay on the part of Administrative Agent to exercise any such
right, power or remedy and no notice or demand which may be given to or made
upon Pledgor by Administrative Agent with respect to any such remedies shall
operate as a waiver thereof, or limit or impair Administrative Agent's right to
take any action or to exercise any power or remedy hereunder, without notice or
demand, or prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Administrative
Agent, that Administrative Agent shall have no adequate remedy at law in respect
of such breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against Pledgor,
and Pledgor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense that the
Secured Obligations are not then due and payable in accordance with the
agreements and instruments governing and evidencing such obligations.
9. Waiver. No delay on Administrative Agent's part in exercising any
power of sale, Lien, option or other right hereunder, and no notice or demand
which may be given to or made upon Pledgor by Administrative Agent with respect
to any power of sale, Lien, option or other right hereunder, shall constitute a
waiver thereof, or limit or impair Administrative Agent's right to take any
action or to exercise any power of sale, Lien, option, or any other right
hereunder, without notice or demand, or prejudice Administrative Agent's rights
as against Pledgor in any respect.
10. Assignment. Administrative Agent may assign, indorse or transfer
any instrument evidencing all or any part of the Secured Obligations as provided
in, and in accordance with, the Credit Agreement, and the holder of such
instrument shall be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date,
Administrative Agent shall deliver to Pledgor the Pledged Collateral pledged by
Pledgor at the time subject to this Agreement and all instruments of assignment
executed in connection therewith, free and clear of the Liens hereof and, except
as otherwise provided herein, all of Pledgor's obligations hereunder shall at
such time terminate.
12. Lien Absolute. All rights of Administrative Agent hereunder, and
all obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Credit Agreement,
any other Loan Document or any other agreement or instrument governing or
evidencing any Secured Obligations;
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(b) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other Collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgor, other than the occurrence of the
Termination Date.
13. Release. Pledgor consents and agrees that Administrative Agent
may at any time, or from time to time, in its reasonable discretion:
(a) renew, extend or change the time of payment, and/or the manner,
place or terms of payment of all or any part of the Secured Obligations; and
(b) exchange, release and/or surrender all or any of the Collateral
(including the Pledged Collateral), or any part thereof, by whomsoever
deposited, which is now or may hereafter be held by Administrative Agent in
connection with all or any of the Secured Obligations; all in such manner and
upon such terms as Administrative Agent may deem proper, and without notice to
or further assent from Pledgor, it being hereby agreed that Pledgor shall be and
remain bound upon this Agreement, irrespective of the value or condition of any
of the Collateral, and notwithstanding any such change, exchange, settlement,
compromise, surrender, release, renewal or extension, and notwithstanding also
that the Secured Obligations may, at any time, exceed the aggregate principal
amount thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of acceptance of
this Agreement, and also presentment, demand, protest and notice of dishonor of
any and all of the Secured Obligations, and promptness in commencing suit
against any party hereto or liable hereon, and in giving any notice to or of
making any claim or demand hereunder upon Pledgor. No act or omission of any
kind on Administrative Agent's part shall in any event affect or impair this
Agreement.
14. Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Pledgor or any Pledged Entity for liquidation or reorganization, should Pledgor
or any Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned; provided, that with respect to
calculation of interest on any Obligation that is so reinstated, interest shall
accrue from the date such Obligation is first reinstated and not from the
previous date of payment.
11
15. Miscellaneous.
(a) Administrative Agent may execute any of its duties hereunder by
or through agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Administrative Agent for
actual out-of-pocket expenses, including, without limitation, reasonable counsel
fees, incurred by Administrative Agent in connection with the administration and
enforcement of this Agreement.
(c) Neither Administrative Agent, nor any of its respective officers,
directors, employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS
AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF PLEDGOR), AND SHALL
INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, ADMINISTRATIVE AGENT AND ITS
SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY
SIGNED FOR AND ON BEHALF OF ADMINISTRATIVE AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or effect those portions of
this Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
(a) If to Administrative Agent, at:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
12
With copies to:
Husch & Eppenberger, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇. 64105
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Rockers
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Pledgor, at:
Darling International Inc.
▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Weil, Gotschal & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Urquahrt
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The Section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
13
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement. Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
20. Benefit of Lenders. All security interests granted or
contemplated hereby shall be for the benefit of Administrative Agent and
Lenders, and all proceeds or payments realized from the Pledged Collateral in
accordance herewith shall be applied to the Obligations in accordance with the
terms of the Credit Agreement.
[Remainder of page intentionally blank, signature page to follow]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
DARLING INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Executive Vice President
--------------------------------
15
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Texas ▇▇▇▇▇▇
-------------------------------------
Name:
-----------------------------------
Its Duly Authorized Signatory
16
SCHEDULE I
PART A
------
PLEDGED SHARES
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
Class of Stock Certificate Number Percentage of
Pledged Entity Stock Number(s) of Shares Outstanding Shares
-------------- ----- --------- --------- ------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
None n/a n/a n/a n/a
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
PART B
------
PLEDGED INDEBTEDNESS
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
Pledged Entity Initial Issue Date Maturity Date Interest Rate
-------------- Principal Amount ---------- ------------- -------------
----------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
None n/a n/a n/a n/a
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
17
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is delivered
pursuant to Section 6(d) of the Pledge Agreement referred to below. All defined
terms herein shall have the meanings ascribed thereto or incorporated by
reference in the Pledge Agreement. The undersigned hereby certifies that the
representations and warranties in Section 5 of the Pledge Agreement are and
continue to be true and correct, both as to the promissory notes, instruments
and shares pledged prior to this Pledge Amendment and as to the promissory
notes, instruments and shares pledged pursuant to this Pledge Amendment. The
undersigned further agrees that this Pledge Amendment may be attached to that
certain Pledge Agreement, dated April ___, 2004, between undersigned, as
Pledgor, and General Electric Capital Corporation, as Administrative Agent, (the
"Pledge Agreement") and that the Pledged Shares and Pledged Indebtedness listed
on this Pledge Amendment shall be and become a part of the Pledged Collateral
referred to in said Pledge Agreement and shall secure all Secured Obligations
referred to in said Pledge Agreement. The undersigned acknowledges that any
promissory notes, instruments or shares not included in the Pledged Collateral
at the discretion of Administrative Agent may not otherwise be pledged by
Pledgor to any other Person or otherwise used as security for any obligations
other than the Secured Obligations.
DARLING INTERNATIONAL INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
Class of Stock Certificate Number Percentage of
Pledged Entity Stock Number(s) of Shares Outstanding Shares
-------------- ----- --------- --------- ------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
----------------------------- --------------------- ---------------------------- --------------------------- ----------------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
Pledged Entity Initial Issue Date Maturity Date Interest Rate
-------------- Principal Amount ---------- ------------- -------------
----------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
------------------------------- ---------------------------------- ------------------------- ------------------------ -------------
18
