EXECUTION COPY
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of February 7, 2006 (together with
all amendments, if any, from time to time hereto, this "Agreement") between RGCH
HOLDINGS CORP., a Delaware corporation (the "Pledgor") and GENERAL ELECTRIC
CAPITAL CORPORATION in its capacity as Agent for Lenders ("Agent").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof by and among RathGibson, Inc., the Persons named therein as Credit
Parties, 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, Borrower;
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 from the credit facilities made available
to Borrower under the Credit Agreement;
WHEREAS, in order to induce 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 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):
"Bankruptcy Code" means title 11, United States Code, as amended
from time to time, and any successor statute thereto.
"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 Agent, and grants to 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; and
(b) such portion, as determined by Agent as provided in Section 6(d)
below, of any additional shares of stock of 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; and
(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;
provided, however, that the Pledged Collateral shall not include 35% of the
shares of Capital Stock of any Foreign Subsidiary.
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 all
Obligations of any kind under or 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 reasonable 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 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
reasonably satisfactory to 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 Agent
that:
(a) Pledgor is 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 and
Permitted Encumbrances;
(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 (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws),
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 Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness have 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 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 (x) as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally or (y) where to obtain such consent, approval,
authorization or order, give such notice or make such filing could not
reasonably be expected to have a Material Adverse Effect;
(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 Agent for the benefit of
Agent and Lenders in the Pledged Collateral and the proceeds thereof, securing
the payment of the Secured Obligations, subject to no other Lien, other than the
Permitted Encumbrances;
(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, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws;
(i) The Pledged Shares constitute 100% of the issued and outstanding
shares of Stock of Pledged Entity;
(j) The Pledged Shares of each Pledged Entity specifically identified on
Schedule I hereto constitute 100% of the equity interest of each such Pledged
Entity held by such Pledgor; and
(k) 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 Agent, which consent shall not be
unreasonably withheld, 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 xxxxx x Xxxx 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 Agent from time to
time may reasonably request in order to ensure to 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 Agent with or (to the extent permitted by law) without the
signature of Pledgor (and the Agent shall use its reasonable best efforts to
provide copies of such filings promptly upon the filing thereof), and will
cooperate with 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 Agent in the Pledged Collateral against the claim of any Person and
will maintain and preserve such Liens in accordance with the terms of the Loan
Documents;
(d) Pledgor will, upon obtaining ownership of any additional Stock or
promissory notes or instruments of Pledged Entity or Stock or promissory notes
or instruments otherwise required to be pledged to 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) Business Days) deliver to
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 Agent all
of such additional Stock, notes and instruments. Pledgor hereby authorizes 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
Agent shall for all purposes hereunder be considered Pledged Collateral; and
(e) Pledged Entity covenants and agrees that, until the Termination Date,
Pledged Entity will not issue any additional Stock unless concurrently therewith
(i) the Person obtaining ownership of any such additional Stock pledges to Agent
all of such additional Stock and becomes a party to this Agreement by executing
a counterpart of this Agreement and delivering such counterpart to Agent or (ii)
if the Person obtaining ownership of any such additional Shares is Pledgor,
Pledgor pledges all such additional Stock to Agent in accordance with the
provisions of Section 6(d).
7. Pledgor's Rights. As long as no Default or 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
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 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
Pledged Entity;
(ii) the consolidation or merger of Pledged Entity with any other
Person;
(iii) the sale, disposition or encumbrance of all or substantially
all of the assets of Pledged Entity, except for Liens in favor of Agent and
Permitted Encumbrances;
(iv) any change in the authorized number of shares, the stated
capital or the authorized share capital of 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 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 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 Agent to hold as Pledged Collateral and shall, if
received by Pledgor, be received in trust for the benefit of Agent, be
segregated from the other property or funds of Pledgor, and be forthwith
delivered to Agent as Pledged Collateral in the same form as so received (with
any necessary endorsement).
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, 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 Agent was the
outright owner thereof. Any sale shall be made at a public or private sale at
Agent's place of business, or at any place to be named in the notice of sale,
either for cash or upon credit or for future delivery at such price as Agent may
deem fair, and in accordance with the provisions of Section 9-610 of the Code,
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 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
Agent. PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS 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 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 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).
NOTWITHSTANDING ANYTHING TO THE FOREGOING IN THIS SECTION 8, 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 AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE
FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO
PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY
DELAY IN DOING SO.
(b) If, at the original time or times appointed for the sale of the whole
or any part of the Pledged Collateral, 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 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, 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 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 Agent shall desire to sell or otherwise dispose of the Pledged Shares;
(iii) Furnish to 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 Agent may request in order to facilitate the public sale
or other disposition of the Pledged Shares by 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 Agent shall request, and do such other reasonable acts and things
as may be required of it to enable Agent to consummate the public sale or other
disposition in such jurisdictions of the Pledged Shares by Agent;
(v) Furnish, at the request of 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 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 Agent, in a customary
form and covering matters of the type customarily covered by such comfort
letters and as the underwriters or Agent shall reasonably request. The opinion
of counsel referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is being given
as Agent may reasonably request. The 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 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 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 or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its right to
sell the whole or any part of the Pledged Collateral hereunder, such Pledged
Collateral or the part thereof to be sold shall not, for any reason whatsoever,
be effectively registered under the Act, Agent may, in its discretion (subject
only to applicable requirements of law), sell such Pledged Collateral or part
thereof by private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of this
Section 8, and shall not be required to effect such registration or to cause the
same to be effected. Without limiting the generality of the foregoing, in any
such event, Agent in its discretion (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 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 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 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. Agent shall be under no obligation to delay a
sale of any of the Pledged Collateral for the period of time necessary to permit
Pledged Entity to register such securities for public sale under the Act, or
under applicable state securities laws, even if Pledgor and 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
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 Agent provided
for in this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by Agent of
any one or more of such rights, powers or remedies. No failure or delay on the
part of Agent to exercise any such right, power or remedy and no notice or
demand which may be given to or made upon Pledgor by Agent with respect to any
such remedies shall operate as a waiver thereof, or limit or impair
Agent's right to take any action or to exercise any power or remedy hereunder,
without notice or demand, or prejudice its rights as against 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 Agent, that Agent shall have
no adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in this Section 8 shall be
specifically enforceable against 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 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 Agent with respect to any power of sale, Lien, option or
other right hereunder, shall constitute a waiver thereof, or limit or impair
Agent's right to take any action or to exercise any power of sale, Lien, option,
or any other right hereunder, without notice or demand, or prejudice Agent's
rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent shall
deliver to 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 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;
(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.
13. Release. Pledgor consents and agrees that Agent may at any time, or from
time to time, in its 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 Agent in connection with all
or any of the Secured Obligations; all in such manner and upon such terms as
Agent may deem proper, and without notice to or further assent from 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 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 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.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through agents or
employees and shall be entitled to advice of counsel concerning all matters
pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual and reasonable
out-of-pocket expenses, including, without limitation, reasonable counsel fees,
incurred by Agent in connection with the administration and enforcement of this
Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully taken or
omitted to be taken by it or them hereunder or in connection herewith, except
for its or their own gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON 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, AGENT AND ITS SUCCESSORS AND ASSIGNS,
AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED,
MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON BEHALF OF AGENT AND
PLEDGOR. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.
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 and serve upon any
other party any communication with respect to this Pledge Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be given in the manner, and deemed received, as
provided for in the Credit Agreement.
18. Headings. Section and subsection headings are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purposes or be given substantive effect.
19. Counterparts; Effectiveness. This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one in the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
20. Benefit of Lenders. All security interests granted or contemplated hereby
shall be for the benefit of Agent and Lenders, and all proceeds or payments
realized from the Pledged Collateral in accordance herewith shall be applied to
the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
RGCH HOLDINGS CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
_____________________
Name: Xxxxxxx Xxxxxxxxx
___________________
Title: President
__________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Cascade
_________________________
Name: /s/ Xxxx Cascade
_______________________
Its Duly Authorized Signatory
ACCEPTED AND AGREED:
RATHGIBSON, INC.
By: /s/ Xxxxxx X. Xxxxxx
____________________
Name: Xxxxxx X. Xxxxxx
__________________
Title: President & CEO
_________________
