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Exhibit 10(l)
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of
May 31, 1995, is executed by and between OHM Corporation, an Ohio corporation
(the "Pledgor"), and WMX Technologies, Inc. (the "Pledgee") under the
Reimbursement Agreement referred to below. Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings ascribed to
such terms in the Reimbursement Agreement referred to below.
PRELIMINARY STATEMENTS:
(1) The Pledgor, OHM Remediation Services Corp., an Ohio
corporation ("Remediation"; Pledgor and Remediation are sometimes hereinafter
collectively referred to as the "Borrowers"), Citicorp USA, Inc. as
Administrative Agent (the "Agent") for the Banks which are parties to the
Credit Agreement (as hereinafter defined) (the "Banks") and Bank of America
Illinois in its capacity as Issuing and Paying Agent and Co-Agent for the Banks
(the "Paying Agent"; together with the Agent and the Banks, the "Lenders" and
individually a "Lender") have entered into that certain Revolving Credit
Agreement dated as of May 31, 1995 as the same may be amended, supplemented or
otherwise modified from time to time (the "Credit Agreement").
(2) The Lenders have required as a condition to the entry
by the Borrowers and the Lenders in and to the Credit Agreement that the
Pledgee execute and deliver that certain Guaranty dated as of May 31, 1995 (as
amended, supplemented or otherwise modified from time to time, the "Guaranty")
by the Pledgee in favor of the Lenders pursuant to which the Pledgee has
guaranteed the prompt and complete repayment of the Obligations (as defined,
the "Guaranty") subject to the limitations set forth in the Guaranty.
(3) The Pledgee has required as a condition to the entry
by the Pledgee in and to the Guaranty that the Borrowers execute and deliver
that certain Reimbursement Agreement dated as of May 31, 1995 (as amended,
supplemented or otherwise modified from time to time, the "Reimbursement
Agreement") among the Pledgee and the Borrowers pursuant to which the Borrowers
covenant and agree to promptly and completely reimburse the Pledgee for all
payments made by the Pledgee under and pursuant to the Guaranty.
(4) The Pledgor is the owner of the issued and
outstanding capital stock of each of the corporations (collectively, the
"Corporations" and individually, a "Corporation") set forth on Schedule I
hereto.
(5) The Lenders and the Pledgee each desire to execute
and deliver that certain Intercreditor Agreement dated as of May 31, 1995 (the
"Intercreditor Agreement") by and among the Agent, the Paying Agent and the
Pledgee in order to set forth certain agreements, rights and interests with
respect to and in connection with their respective interests with respect to
the Borrowers as well as their respective security interests in and liens on
certain collateral specified therein.
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(6) The Pledgee has required, as a condition to its
entering into the Reimbursement Agreement, that the Pledgor execute and deliver
this Pledge Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce the Pledgee to enter into the Guaranty,
the Pledgor and the Pledgee hereby agree as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the
Pledgee, for its benefit, and grants to the Pledgee for its benefit, a security
interest in, the following (collectively, the "Pledged Collateral"):
(a) The shares of the capital stock of each of the
Corporations, now or at any time or times hereafter owned by the
Pledgor, and the certificates representing the shares of such capital
stock (such now-owned shares being identified on Schedule I attached
hereto and made a part hereof), all options and warrants for the
purchase of shares of the stock of the Corporations now or hereafter
held in the name of the Pledgor (all of said capital stock, options
and warrants and all capital stock held in the name of the Pledgor as
a result of the exercise of such options or warrants being hereinafter
collectively referred to as the "Pledged Stock"), and all dividends,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, or in exchange for,
any or all of the Pledged Stock;
(b) All additional shares of stock of the Corporations
from time to time acquired by the Pledgor in any manner, and the
certificates representing such additional shares (any such additional
shares shall constitute part of the Pledged Stock and the Pledgee is
irrevocably authorized to amend Schedule I from time to time to
reflect such additional shares), and all options, warrants, dividends,
cash, instruments and other rights and options from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares;
(c) The property and interests in property described in
Section 3 below; and
(d) All proceeds of the foregoing.
The Pledgor has on the date hereof delivered to the Agent on behalf of
the Lenders the certificates representing the Pledged Stock pursuant to the
Pledge Agreement (as defined in the Credit Agreement). The Pledgor covenants
and agrees that upon the expiration or termination of such Pledge Agreement,
the Pledgor shall cause such certificates representing the Pledged Stock to be
promptly delivered to the Pledgee accompanied by stock powers in form and
substance satisfactory to the Pledgee duly executed in blank (the "Powers").
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SECTION 2. Security for Obligations. The Pledged Collateral
secures the prompt payment, performance and observance of the obligations of
the Borrowers under and pursuant to the Reimbursement Agreement.
SECTION 3. Pledged Collateral Adjustments. If, during the
term of this Pledge Agreement:
(a) Any stock dividend, reclassification, readjustment or
other change is declared or made in the capital structure of any
Corporation, or any option included within the Pledged Collateral is
exercised, or both, or
(b) Any warrants or any other rights or options shall be
issued in connection with the Pledged Collateral,
then all new, substituted and additional shares, warrants, rights, options or
other securities, issued by reason of any of the foregoing, shall be
immediately delivered to and held by the Pledgee under the terms of this Pledge
Agreement and shall constitute Pledged Collateral hereunder.
SECTION 4. Subsequent Changes Affecting Pledged Collateral.
The Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, reorganization or other exchanges, tender
offers and voting rights), and the Pledgor agrees that the Pledgee shall not
have any obligation to inform the Pledgor of any such changes or potential
changes or to take any action or omit to take any action with respect thereto.
The Pledgee may, after the occurrence and during the continuance of an Event of
Default, without notice and at its option, transfer or register the Pledged
Collateral or any part thereof into its or its nominee's name with or without
any indication that such Pledged Collateral is subject to the security interest
hereunder. In addition, the Pledgee may at any time exchange certificates or
instruments representing or evidencing Pledged Shares for certificates or
instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties. The Pledgor
represents and warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of
the issued and outstanding common stock of each Corporation in
the amounts and percentages set forth on Schedule I, free and
clear of any Lien except for the security interest created by
this Pledge Agreement and that certain Pledge Agreement dated
as of May 31, 1995 from the Pledgor to the Agent (as amended,
supplemented or otherwise modified from time to time, the
"Bank Pledge Agreement");
(b) The Pledgor has full corporate power and authority to
enter into this Pledge Agreement;
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(c) There are no restrictions upon the voting rights
associated with, or upon the transfer of, any of the Pledged
Collateral;
(d) The Pledgor has the right to vote, pledge and grant a
security interest in or otherwise transfer such Pledged
Collateral free of any Liens other than the Lien of the Bank
Pledge Agreement;
(e) No 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 of the
Pledged Collateral pursuant to this Pledge Agreement or for
the due execution, delivery or performance of this Pledge
Agreement by the Pledgor or (ii) for the exercise by the
Pledgee of the voting or other rights provided for in this
Pledge Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Pledge Agreement (except as may be
required in connection with such disposition by laws affecting
the offering and sale of securities generally and except as
set forth in the Intercreditor Agreement);
(f) The pledge of the Pledged Collateral pursuant to this
Pledge Agreement creates a valid and perfected security
interest in the Pledged Collateral, in favor of the Pledgee
for its benefit, securing the payment and performance of the
Obligations subject in priority only to the security interest
created under the Bank Pledge Agreement; and
(g) The Powers are duly executed and give the Pledgee the
authority they purport to confer.
SECTION 6. Voting Rights. During the term of this Pledge
Agreement, and except as provided in this Section 6 below, the Pledgor shall
have the right to vote the Pledged Stock on all corporate questions in a manner
not inconsistent with the terms of this Pledge Agreement, the Reimbursement
Agreement, the Intercreditor Agreement and any other Security Document. After
the occurrence and during the continuance of an Event of Default, the Pledgee
may, at the Pledgee's option and following written notice from the Pledgee to
the Pledgor, exercise all voting powers pertaining to the Pledged Collateral,
including the right to take action by shareholder consent, and Pledgor hereby
irrevocably appoints and constitutes the Pledgee as its attorney for such
purpose.
SECTION 7. Dividends and Other Distributions. (a) So long as
no Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to receive and retain
any and all dividends and interest paid in respect of the Pledged
Collateral, provided, however, that any and all
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(A) dividends and interest paid or payable other
than in cash with respect to, and instruments and other
property received, receivable or otherwise distributed with
respect to, or in exchange for, any of the Pledged Collateral;
(B) dividends and other distributions paid or
payable in cash with respect to any of the Pledged Collateral
on account of a partial or total liquidation or dissolution or
in connection with a reduction of capital, capital surplus or
paid-in surplus; and
(C) cash paid, payable or otherwise distributed
with respect to principal of, or in redemption of, or in
exchange for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered (subject to the
expiration and termination of the Pledge Agreement (as defined in the Credit
Agreement)) to the Pledgee to hold for its benefit, as Pledged Collateral and
shall, if received by the Pledgor, be received in trust for the Pledgee, for
its benefit, be segregated from the other property or funds of the Pledgor, and
be delivered immediately to the Pledgee as Pledged Collateral in the same form
as so received (with any necessary endorsement); and
(ii) The Pledgee shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the dividends or interest payments
which it is authorized to receive and retain pursuant to clause (i)
above.
(b) After the occurrence and during the continuance of an Event of
Default:
(i) All rights of the Pledgor to receive the dividends
and interest payments which it would otherwise be authorized to
receive and retain pursuant to Section 7(a) (i) hereof shall cease,
and all such rights shall thereupon become vested in the Pledgee, for
its benefit, which shall thereupon have the sole right to receive and
hold as Pledged Collateral such dividends and interest payments
(subject to the Bank Pledge Agreement); and
(ii) All dividends and interest payments which are
received by the Pledgor contrary to the provisions of clause (i) of
this Section 7(b) shall be received in trust for the Pledgee, for its
benefit, shall be segregated from other funds of the Pledgor and shall
be paid over immediately to the Pledgee as Pledged Collateral in the
same form as so receive (with any necessary endorsements) (subject to
the Bank Pledge Agreement).
SECTION 8. Transfers and Other Liens. The Pledgor agrees
that it will not (i) sell or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral without the prior written consent of
the Pledgee, or (ii) create or permit to exist any Lien upon or
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with respect to any of the Pledged Collateral, except for the security interest
under this Pledge Agreement and the Bank Pledge Agreement. Notwithstanding the
foregoing, the Pledgor may at any time sell or otherwise dispose of, in whole
or in part, for fair market value as determined by the Board of Directors of
the Pledgor the shares of common stock of NSC Corporation owned by the Pledgor,
provided however, that any of such shares owned by the Pledgor shall remain
subject to the lien of this Pledge Agreement.
SECTION 9. Remedies. (a) The Pledgee shall have, in addition
to any other rights given under this Pledge Agreement or by law, all of the
rights and remedies with respect to the Pledged Collateral of a secured party
under the Uniform Commercial Code as in effect in the State of Illinois. In
addition, after the occurrence and during the continuance of an Event of
Default, the Pledgee shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged Collateral or any
part thereof which shall then be in or shall thereafter come into the
possession or custody of the Pledgee or which the Pledgee shall otherwise have
the ability to transfer under applicable law, the Pledgee may, in its sole
discretion, without notice except as specified below, after the occurrence and
during the continuance of an Event of Default, sell or cause the same to be
sold at any exchange, broker's board or at public or private sale, in one or
more sales or lots, at such price as the Pledgee may deem best, for cash or on
credit or for future delivery, without assumption of any credit risk, and the
purchaser of any or all of the Pledged Collateral so sold shall thereafter own
the same, absolutely free from any claim, encumbrance or right of any kind
whatsoever. The Pledgee, may, in its own name, or in the name of a designee or
nominee, buy the Pledged Collateral at any public sale and, if permitted by
applicable law, buy the Pledged Collateral at any private sale. The Pledgor
will pay to the Pledgee all reasonable expenses (including, without limitation,
court costs and reasonable attorneys' and paralegals' fees and expenses) of, or
incident to, the enforcement of any of the provisions hereof. The Pledgee
agrees to distribute any proceeds of the sale of the Pledged Collateral in
satisfaction of the obligations under the Reimbursement Agreement and the
Pledgor shall remain liable for any deficiency following the sale of the
Pledged Collateral. Any balance remaining subsequent to the foregoing shall be
returned to the Pledgor or such other persons as are entitled thereto.
(b) Unless any of the Pledged Collateral threatens to
decline speedily in value or is or becomes of a type sold on a recognized
market, the Pledgee will give the Pledgor reasonable notice of the time and
place of any public sale thereof, or of the time after which any private sale
or other intended disposition is to be made. Any sale of the Pledged
Collateral conducted in conformity with reasonable commercial practices of
banks, commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable. Notwithstanding any provision to the
contrary contained herein, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the Pledgor as
provided in Section 19 below at least five (5) Business Days before the time of
the sale or disposition; provided, however, that the Pledgee may give any
shorter notice that is commercially reasonable under the
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circumstances. Any other requirement of notice, demand or advertisement for
sale is waived, to the extent permitted by law.
(c) In view of the fact that federal and state securities
laws may impose certain restrictions on the method by which a sale of the
Pledged Collateral may be effected after the occurrence and during the
continuance of an Event of Default, the Pledgor agrees that after the
occurrence and during the continuance of an Event of Default, the Pledgee may,
from time to time, attempt to sell all or any part of the Pledged Collateral by
means of a private placement restricting the bidders and prospective purchasers
to those who are qualified and will represent and agree that they are
purchasing for investment only and not for distribution. In so doing, the
Pledgee may solicit offers to buy the Pledged Collateral, or any part of it,
from a limited number of investors deemed by the Pledgee, in its reasonable
judgment, to be financially responsible parties who might be interested in
purchasing the Pledged Collateral. If the Pledgee solicits such offers from
not less than four (4) such investors, then the acceptance by the Pledgee of
the highest offer obtained therefrom shall be deemed to be a commercially
reasonable method of disposing of such Pledged Collateral; provided, however,
that this Section does not impose a requirement that the Pledgee solicit offers
from four or more investors in order for the sale to be commercially
reasonable.
SECTION 10. Pledgee Appointed Attorney-in-Fact. The Pledgor
hereby appoints the Pledgee its attorney-in-fact, with full authority, in the
name of the Pledgor or otherwise, after the occurrence and during the
continuance of an Event of Default, from time to time in the Pledgee's sole
discretion, to take any action and to execute any instrument which the Pledgee
may deem necessary or advisable to accomplish the purposes of this Pledge
Agreement, including, without limitation, to exercise voting rights with
respect to any of the Pledged Collateral, to receive, endorse and collect all
instruments made payable to the Pledgor representing any dividend, interest
payment or other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same and to arrange for the transfer
of all or any part of the Pledged Collateral on the books of any Corporation to
the name of the Pledgee or the Pledgee's nominee.
SECTION 11. Waivers. The Pledgor waives presentment and
demand for payment of any of the Obligations, protest and notice of dishonor or
Event of Default with respect to any of the Obligations and all other notices
to which the Pledgor might otherwise be entitled except as otherwise expressly
provided herein or in the Reimbursement Agreement.
SECTION 12. Term. This Pledge Agreement shall remain in full
force and effect until the later to occur of (a) the Obligations have been
fully and indefeasibly paid in cash or (b) the Reimbursement Agreement and the
Guaranty have terminated pursuant to their respective terms. Upon the
termination of this Pledge Agreement as provided above (other than as a result
of the sale of the Pledged Collateral), the Pledgee will release the security
interest created hereunder and, if it then has possession of the Pledged Stock,
will deliver the Pledged Stock and the Powers to the Pledgor.
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SECTION 13. Definitions. The singular shall include the
plural and vice versa and any gender shall include any other gender as the
context may require.
SECTION 14. Successors and Assigns. This Pledge Agreement
shall be binding upon and inure to the benefit of the Pledgor, the Pledgee, for
its benefit, and their respective successors and assigns. The Pledgor's
successors and assigns shall include, without limitation, a receiver, trustee
or debtor-in-possession of or for the Pledgor.
SECTION 15. Governing Law. Any dispute between the Pledgee
and the Pledgor arising out of or related to the relationship established
between them in connection with this Pledge Agreement, and whether arising in
contract, tort, equity, or otherwise, shall be resolved in accordance with the
laws of the State of Illinois.
SECTION 16. Severability. Whenever possible, each provision
of this Pledge Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but, if any provision of this Pledge Agreement
shall be held to be prohibited or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Pledge Agreement.
SECTION 17. Further Assurances. The Pledgor agrees that it
will, at its expense, cooperate with the Pledgee and will execute and deliver,
or cause to be executed and delivered, all such other stock powers, proxies,
instruments and documents, and will take all such other actions, including,
without limitation, the execution and filing of financing statements, as the
Pledgee may request from time to time to carry out the provisions and purposes
of this Pledge Agreement.
SECTION 18. The Pledgee's Duty of Care. The Pledgee shall
not be liable for any acts, omissions, errors of judgment or mistakes of fact
or law including, without limitation, acts, omissions, errors or mistakes with
respect to the Pledged Collateral, except for those arising out of or in
connection with the Pledgee's (i) gross negligence or willful misconduct, or
(ii) failure to use reasonable care with respect to the safe custody of the
Pledged Collateral in the Pledgee's possession. Without limiting the
generality of the foregoing, the Pledgee shall be under no obligation to take
any steps necessary to preserve rights in the Pledged Collateral against any
other parties but may do so at its option. All expenses incurred in connection
therewith shall be for the sole account of the Pledgor, and shall constitute
part of the Obligations secured hereby.
SECTION 19. Notices. All notices and other communications
required or desired to be served, given or delivered hereunder shall be given
in the manner and to the addresses set forth in the Reimbursement Agreement.
SECTION 20. Amendments. Waivers and Consents. No amendment
or waiver of any provision of this Pledge Agreement nor consent to any
departure by the Pledgor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Pledgee, and
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then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 21. Section Headings. The section headings herein
are for convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
SECTION 22. Execution in Counterparts. This Pledge Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which shall together constitute one and the same
agreement.
SECTION 23. Merger. This Pledge Agreement represents the
final agreement of the Pledgor with respect to the matters contained herein and
may not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Pledgor and the Pledgee.
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have executed
this Pledge Agreement as of the date set forth above.
OHM CORPORATION
By:____________________________
Name:______________________
Title:_____________________
WMX TECHNOLOGIES, INC.
By:____________________________
Name:______________________
Title:_____________________
By:____________________________
Name:______________________
Title:_____________________
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ACKNOWLEDGMENT
The undersigned each hereby acknowledges receipt of a copy of
the foregoing Pledge Agreement, agrees promptly to note on its books the
security interests granted under such Pledge Agreement, and waives any rights
or requirement at any time hereafter to receive a copy of such Pledge Agreement
in connection with the registration of any Pledged Collateral in the name of
the Pledgee or its nominee or the exercise of voting rights by the Pledgee.
ENVIRONMENTAL FINANCIAL
SERVICES CORP.
By:____________________________
Name:______________________
Title:_____________________
CAPITAL NATIONAL INSURANCE
COMPANY
By:____________________________
Name:______________________
Title:_____________________
OHM REMEDIATION SERVICES CORP.
By:____________________________
Name:______________________
Title:_____________________
NSC CORPORATION
By:____________________________
Name:______________________
Title:_____________________
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OHM CORPORATION, A NEVADA
CORPORATION
By:____________________________
Name:______________________
Title:_____________________
OHM ENVIRONMENTAL RESOURCE
MANAGEMENT CORP.
By:____________________________
Name:______________________
Title:_____________________
OHM ASBESTOS ABATEMENT CORP.
By:____________________________
Name:______________________
Title:_____________________
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SCHEDULE I
to
PLEDGE AGREEMENT
Pledged Stock Certificates
Percentage of Shares of Common
Issued and Outstanding Stock owned by
Common Stock owned the Pledgor Subject
Name by the Pledgor to Pledge
----
Environmental
Financial
Services Corp. 100% 100
Capital National
Insurance Company 100% 100,000
OHM Remediation
Services Corp. 100% 100
NSC Corporation 40% 4,010,000
OHM Corporation, a
Nevada corporation 100% 100
OHM Environmental
Resource Management Corp. 100% 100%
OHM Asbestos
Abatement Corp. 100% 100
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