Exhibit 4.4
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "Pledge Agreement") is made as of August 16, 2002,
by and among REPUBLIC ENGINEERED PRODUCTS LLC, a Delaware limited liability
partnership (the "Borrower" or a "Pledgor"), BLUE BAR, L.P., a Delaware limited
partnership (the "Parent" or a "Pledgor", and together with the Borrower, the
"Pledgors") and FLEET CAPITAL CORPORATION, a Rhode Island corporation, as
administrative agent (hereinafter in such capacity, the "Administrative Agent")
for itself and the other lending institutions (hereinafter, collectively, the
"Lenders") which are or may become parties to a Revolving Credit Agreement of
even date herewith (as amended and in effect from time to time, the "Credit
Agreement") among the Borrower, the Parent, the Subsidiaries of the Borrower
party thereto, the Lenders, the Administrative Agent and the other parties
thereto.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed, upon
the terms and subject to the conditions contained therein, to make loans and
otherwise extend credit to the Borrower.
WHEREAS, the Pledgors are the direct legal and beneficial owners of all
of the issued and outstanding capital stock and all of the units of outstanding
membership interests, or other equity interests, as the case may be, of each of
the entities described on Annex A hereto (such entities, collectively, the
"Subsidiaries" and each individually, a "Subsidiary");
WHEREAS, it is a condition precedent to the Lenders' making any loans or
otherwise extending credit to the Borrower under the Credit Agreement that the
Pledgors execute and deliver to the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, a pledge agreement in substantially the
form hereof; and
WHEREAS, each Pledgor wishes to grant pledges and security interests in
favor of the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, as herein provided;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Pledge of Securities, etc.
1.1. Pledge of Securities. Each Pledgor hereby pledges, assigns,
grants a security interest in, and delivers to the Administrative Agent,
for the benefit of the Lenders and the Administrative Agent, all of the
right, title and interest of such Pledgor in and to all of the shares of
capital stock, limited liability company membership units or other units
of equity ownership of every class of each of the Subsidiaries, as more
fully described on Annex A hereto, including without limitation, with
respect to any Subsidiary which is a limited liability company (a) all
payments or distributions, whether in each case, property or otherwise,
at any
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time owing or payable to such Pledgor on account of its interest as a
member, in any of the Subsidiaries, (b) all of such Pledgor's rights and
interests under the operating agreements, including all voting and
management rights and all rights to grant or withhold consents or
approvals, (c) all other rights, interests, property or claims to which
such Pledgor may be entitled in its capacity as a member of any
Subsidiary, and (d) all proceeds, income from and increases in and
products of any of the foregoing to be held by the Administrative Agent
subject to the terms and conditions hereinafter set forth (the "Pledged
Interests"). The certificates for such Pledged Interests of the
Subsidiaries, to the extent that such interests are represented by
certificates, accompanied by stock powers or other appropriate
instruments of assignment thereof duly executed in blank by such Pledgor,
have been delivered to the Administrative Agent. Each Pledgor represents
and warrants that none of the limited liability company membership units
owned by such Pledgor are evidenced by any certificate issued by any
Subsidiary. Each Pledgor further represents and warrants that none of the
limited liability company membership units owned by the Pledgor issued by
any Subsidiary is a security governed by Article 8 of the Uniform
Commercial Code of the jurisdiction in which such Subsidiary is
organized.
1.2. Additional Securities. In case any Pledgor shall acquire any
additional capital stock or other equity interest of any Subsidiary or
any newly-created or acquired Subsidiary or corporation, partnership,
limited liability company or other entity that is the successor of any
Subsidiary, or any securities exchangeable for or convertible into shares
of such capital stock or other equity interest of any class of any
Subsidiary, by purchase, stock dividend, stock split or otherwise, then
such Pledgor shall forthwith pledge such capital stock or other equity
interests to the Administrative Agent, for the benefit of the Lenders and
the Administrative Agent, under this Pledge Agreement and shall deliver
to the Administrative Agent forthwith any certificates therefor,
accompanied by stock powers or other appropriate instruments of
assignment duly executed in blank by such Pledgor. Each Pledgor agrees
that the Administrative Agent may from time to time attach as Annex A
hereto an updated list of the shares of capital stock or other equity
interest at the time pledged with the Administrative Agent hereunder.
1.3. Pledge of Cash Collateral Account. Each Pledgor also hereby
pledges, assigns, grants a security interest in, and delivers to the
Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, the Cash Collateral Account and all of the Cash
Collateral as such terms are hereinafter defined.
1.4 Waiver of Certain Operating Agreement Provisions. Each
Pledgor irrevocably waives any and all of its rights under those
provisions of the operating agreements of each Subsidiary which is a
limited liability company that (a) prohibit, restrict, condition or
otherwise affect the grant hereunder of any Lien on any of the Securities
Collateral or any enforcement action which may be
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taken in respect of any such Lien or (b) otherwise conflict with the
terms of this Pledge Agreement.
2. Definitions. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement. Terms used herein and not defined in the
Credit Agreement or otherwise defined herein that are defined in the Uniform
Commercial Code of the State of New York have such defined meanings herein (with
terms used in Article 9 controlling over terms used in another Article), unless
the context otherwise indicated or requires, and the following terms shall have
the following meanings:
Cash Collateral. See (S)4.
Cash Collateral Account. See (S)4.
Securities Act. See (S)7.3.
Securities. The Pledged Interests and any additional shares of stock,
membership interests or other equity interests at the time pledged with the
Administrative Agent hereunder and the interests described in clauses (a)-(e) of
(S)1.1 of this Pledge Agreement.
Securities Collateral. The property at any time pledged to the
Administrative Agent hereunder (whether described herein or not) and all income
therefrom, increases therein and proceeds thereof, including without limitation
that included in Cash Collateral, but excluding from the definition of
"Securities Collateral" any income, increases or proceeds received by any
Pledgor to the extent expressly permitted by (S)6.
Time Deposits. See (S)4.
3. Security for Obligations. This Pledge Agreement and the security
interest in and pledge of the Securities Collateral hereunder are made with and
granted to the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, as security for the payment and performance in full of all
the Obligations, including all such Obligations which would become due but for
the operation of the automatic stay pursuant to (S)363(a) of the Federal
Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal
Bankruptcy Code.
4. Liquidation, Recapitalization, etc.
4.1. Distributions Paid to Administrative Agent. Any sums or other
property paid or distributed upon or with respect to any of the
Securities, whether by dividend or redemption or upon the liquidation or
dissolution of the issuer thereof or otherwise, shall, except to the
limited extent provided in (S)6, be paid over and delivered to the
Administrative Agent to be held by the Administrative Agent, as security
for the payment and performance in full of all of the Obligations. In
case, pursuant to the recapitalization or reclassification of
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the capital of the issuer thereof or pursuant to the reorganization
thereof, any distribution of capital shall be made on or in respect of
any of the Securities or any property shall be distributed upon or with
respect to any of the Securities, the property so distributed shall be
delivered to the Administrative Agent to be held by it as security for
the Obligations. Except to the limited extent provided in (S)6, all sums
of money and property paid or distributed in respect of the Securities,
whether as a dividend or upon such a liquidation, dissolution,
recapitalization or reclassification or otherwise, that are received by
such Pledgor shall, until paid or delivered to the Administrative Agent,
be held in trust for the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent as security for the payment and
performance in full of all of the Obligations.
4.2. Cash Collateral Account. All sums of money that are delivered
to the Administrative Agent pursuant to this (S)4 shall be deposited into
an interest bearing account with the Administrative Agent or, if the
Administrative Agent is not the depositary bank, to an interest bearing
account in the name of the Administrative Agent, for the benefit of the
Lenders and the Administrative Agent, as customer with a depositary bank
satisfactory to the Administrative Agent (any such account, whether
maintained with the Administrative Agent or in the Administrative Agent's
name as customer being herein referred to as the "Cash Collateral
Account"). Some or all of the funds from time to time in the Cash
Collateral Account may be invested in time deposits, including, without
limitation, certificates of deposit issued by the Administrative Agent
(such certificates of deposit or other time deposits being hereinafter
referred to, collectively, as "Time Deposits"), that are satisfactory to
the Administrative Agent after consultation with such Pledgor, provided,
that, in each such case, arrangements satisfactory to the Administrative
Agent are made and are in place to perfect and to insure the first
priority of the Administrative Agent's security interest therein.
Interest earned on the Cash Collateral Account and on the Time Deposits,
and the principal of the Time Deposits at maturity that is not invested
in new Time Deposits, shall be deposited in the Cash Collateral Account.
The Cash Collateral Account, all sums from time to time standing to the
credit of the Cash Collateral Account, any and all Time Deposits, any and
all instruments or other writings evidencing Time Deposits and any and
all proceeds or any thereof are hereinafter referred to as the "Cash
Collateral."
4.3. Pledgors' Rights to Cash Collateral, etc. Except as otherwise
expressly provided in (S)15, no Pledgor shall have any right to withdraw
sums from the Cash Collateral Account, to receive any of the Cash
Collateral or to require the Administrative Agent to part with the
Administrative Agent's possession of any instruments or other writings
evidencing any Time Deposits.
5. Warranty of Title; Authority. Each Pledgor hereby represents and
warrants that: (a) such Pledgor has good and marketable title to, and is the
sole record and beneficial owner of, the Securities described in (S)1, free and
clear of pledges, liens,
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security interests, charges, options, restrictions or other encumbrances except
the pledge and security interest created by this Pledge Agreement, (b) all of
the Securities described in (S)1 are validly issued fully paid and
non-assessable, (c) such Pledgor has full power, authority and legal right to
execute, deliver and perform its obligations under this Pledge Agreement and to
pledge and grant a security interest in all of the Securities Collateral
pursuant to this Pledge Agreement, and the execution, delivery and performance
hereof and the pledge of and granting and enforcement (where applicable) of a
security interest in the Securities Collateral hereunder do not contravene any
law, rule or regulation or any judgment, decree or order of any tribunal or of
any agreement or instrument to which such Pledgor is a party or by which it or
any of its property is bound or affected or constitute a default thereunder, and
(d) the information set forth in Annex A hereto relating to the Securities is
true, correct and complete in all respects. Each Pledgor covenants that it will
defend the rights of the Administrative Agent and the Lenders and security
interest of the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, in such Securities against the claims and demands of all
other persons whomsoever. Each Pledgor further covenants that it will have the
like title to and right to pledge and grant a security interest in the
Securities Collateral hereafter pledged or in which a security interest is
granted to the Administrative Agent hereunder and will likewise defend the
rights, pledge and security interest thereof and therein of the Administrative
Agent.
6. Dividends, Voting, etc., Prior to Maturity. So long as no Event of
Default shall have occurred and be continuing, each Pledgor shall be entitled to
receive all cash dividends paid in respect of the Securities, to vote the
Securities (subject to the last sentence of this paragraph) and to give
consents, waivers and ratifications in respect of the Securities; provided,
however, that no vote shall be cast or consent, waiver or ratification given by
such Pledgor if the effect thereof would in the reasonable judgment of the
Administrative Agent impair any of the Securities Collateral or be inconsistent
with or result in any violation of any of the provisions of the Credit
Agreement, the Revolving Credit Notes or any of the other Loan Documents. All
such rights of any Pledgor to receive cash dividends shall cease in case an
Event of Default shall have occurred and be continuing. All such rights of any
Pledgor to vote and give consents, waivers and ratifications with respect to the
Securities shall, at the Administrative Agent's option, as evidenced by the
Administrative Agent's written notification to such Pledgor of such election,
cease in case an Event of Default shall have occurred and be continuing.
7. Remedies.
7.1. In General. If an Event of Default shall have occurred and be
continuing, the Administrative Agent shall thereafter have the following
rights and remedies (to the extent permitted by applicable law) in
addition to the rights and remedies of a secured party under the Uniform
Commercial Code of the State of New York, all such rights and remedies
being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently, at such time or times as the Administrative
Agent deems expedient:
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(a) if the Administrative Agent so elects and gives notice
of such election to the applicable Pledgor, the Administrative
Agent may exercise any management or voting rights relating to the
Securities (whether or not the same shall have been transferred
into its name or the name of its nominee or nominees) for any
lawful purpose, including, without limitation, if the
Administrative Agent so elects, for the liquidation of the assets
of the issuer thereof or for the amendment or modification of any
of the charter, by-laws, operating agreements, partnership
agreements or other governing documents, and give all consents,
waivers and ratifications in respect of the Securities and
otherwise act with respect thereto as though it were the outright
owner thereof (each Pledgor hereby irrevocably constituting and
appointing the Administrative Agent the proxy and attorney-in-fact
of such Pledgor, with full power of substitution, to do so);
(b) the Administrative Agent may demand, xxx for, collect
or make any compromise or settlement the Administrative Agent
deems suitable in respect of any Securities Collateral;
(c) the Administrative Agent may sell, resell, assign and
deliver, or otherwise dispose of any or all of the Securities
Collateral, for cash or credit or both and upon such terms at such
place or places, at such time or times and to such entities or
other persons as the Administrative Agent thinks expedient, all
without demand for performance by any Pledgor or any notice or
advertisement whatsoever except as expressly provided herein or as
may otherwise be required by law;
(d) the Administrative Agent may cause all or any part of
the Securities held by it to be transferred into its name or the
name of its nominee or nominees; and
(e) the Administrative Agent may set off or otherwise apply
or credit against the Obligations any and all sums deposited with
it or held by it, including without limitation, any sums standing
to the credit of the Cash Collateral Account and any Time Deposits
issued by the Administrative Agent, with any withdrawal penalty
relating to Time Deposits being an expense of collection.
7.2. Sale of Securities Collateral. In the event of any sale or
other disposition of the Securities Collateral as provided in clause (c)
of ss.7.1 and to the extent that any notice thereof is required to be
given by law, the Administrative Agent shall give to the Pledgors at
least ten (10) Business Days' prior authenticated notice of the time and
place of any public sale or other disposition of the Securities
Collateral or of the time after which any private sale or any other
intended disposition is to be made. Each Pledgor hereby acknowledges that
ten (10) Business Days' prior authenticated notice of such sale or other
disposition or sales or other dispositions shall be reasonable notice.
The Administrative Agent
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may enforce its rights hereunder without any other notice and without
compliance with any other condition precedent now or hereunder imposed by
statute, rule of law or otherwise (all of which are hereby expressly
waived by such Pledgor, to the fullest extent permitted by law). The
Administrative Agent may, to the extent permitted by applicable law, buy
or otherwise acquire any part or all of the Securities Collateral at any
public sale or other disposition and if any part or all of the Securities
Collateral is of a type customarily sold or otherwise disposed of in a
recognized market or is of the type which is the subject of
widely-distributed standard price quotations, the Administrative Agent
may buy or otherwise acquire at private sale or other disposition and may
make payments thereof by any means. The Administrative Agent may apply
the cash proceeds actually received from any sale or other disposition to
the reasonable expenses of retaking, holding, preparing for sale, selling
and the like, to reasonable attorneys' fees, travel and all other
expenses which may be incurred by the Administrative Agent in attempting
to collect the Obligations or to enforce this Pledge Agreement or in the
prosecution or defense of any action or proceeding related to the subject
matter of this Pledge Agreement, and then to the Obligations pursuant to
(S)13.4 of the Credit Agreement. Only after such applications, and after
payment from such proceeds of any amount required by (S)9-608(a)(1)(C) or
(S)9-615(a)(3) of the Uniform Commercial Code of the State of New York,
need the Administrative Agent account to the Pledgors for any surplus.
7.3. Private Sales. Each Pledgor recognizes that the
Administrative Agent may be unable to effect a public sale or other
disposition of the Securities by reason of certain prohibitions contained
in the Securities Act, federal banking laws, and other applicable laws,
and may be compelled to resort to one or more private sales thereof to a
restricted group of purchasers. Each Pledgor agrees that any such private
sales may be at prices and other terms less favorable to the seller than
if sold at public sales and that such private sales shall not by such
reason thereof be deemed not to have been made in a commercially
reasonable manner. The Administrative Agent shall be under no obligation
to delay a sale of any of the Securities for the period of time necessary
to permit the issuer of such securities to register such securities for
public sale under the Securities Act, or such other federal banking or
other applicable laws, even if the issuer would agree to do so. Subject
to the foregoing, the Administrative Agent agrees that any sale of the
Securities shall be made in a commercially reasonable manner, and each
Pledgor agrees to use its best efforts to cause the issuer or issuers of
the Securities contemplated to be sold, to execute and deliver, and cause
the directors (or other analogous persons) and officers of such issuer to
execute and deliver, all at such Pledgor's expense, all such instruments
and documents, and to do or cause to be done all such other acts and
things as may be necessary or, in the reasonable opinion of the
Administrative Agent, advisable to exempt such Securities from
registration under the provisions of the Securities Act, and to make all
amendments to such instruments and documents which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with
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the requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto. Each Pledgor
further agrees to use its best efforts to cause such issuer or issuers to
comply with the provisions of the securities or "Blue Sky" laws of any
jurisdiction which the Administrative Agent shall designate and, if
required, to cause such issuer or issuers to make available to its
security holders, as soon as practicable, an earnings statement (which
need not be audited) which will satisfy the provisions of Section 11(a)
of the Securities Act.
7.4. Pledgors' Agreements, etc. Each Pledgor further agrees to do
or cause to be done all such other acts and things as may be reasonably
necessary to make any sales of any portion or all of the Securities
pursuant to this (S)7 valid and binding and in compliance with any and
all applicable laws (including, without limitation, the Securities Act,
the Securities Exchange Act of 1934, as amended, the rules and
regulations of the Securities and Exchange Commission applicable thereto
and all applicable state securities or "Blue Sky" laws), regulations,
orders, writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such Pledgor's
expense. Each Pledgor further agrees that a breach of any of the
covenants contained in this (S)7 will cause irreparable injury to the
Administrative Agent, that the Administrative Agent has no adequate
remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this (S)7 shall be specifically
enforceable against such Pledgor by the Administrative Agent and each
Pledgor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants other than that the
Obligations have been fully paid in cash and all Commitments have been
terminated.
8. Marshalling. Neither the Administrative Agent nor any Lender shall be
required to marshal any present or future security for (including but not
limited to this Pledge Agreement and the Securities Collateral), or other
assurances of payment of, the Obligations or any of them, or to resort to such
security or other assurances of payment in any particular order. All of the
Administrative Agent's rights hereunder and in respect of such security and
other assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that it lawfully may, each
Pledgor hereby agrees that it will not invoke any law relating to the
marshalling of collateral that might cause delay in or impede the enforcement of
the Administrative Agent's rights under this Pledge Agreement or under any other
instrument evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and to the extent that it lawfully may,
each Pledgor hereby irrevocably waives the benefits of all such laws.
9. Transfer, etc., by the Pledgors. Without the prior written consent of
the Administrative Agent, no Pledgor will sell, assign, transfer or otherwise
dispose of,
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grant any option with respect to, or pledge or grant any security interest in or
otherwise encumber or restrict any of the Securities Collateral or any interest
therein, except for the pledge thereof and security interest therein provided
for in this Pledge Agreement.
10. Further Assurances. Each Pledgor will do all such acts, and will
furnish to the Administrative Agent all such financing statements, certificates,
legal opinions and other documents and will obtain all such governmental
consents and corporate approvals and will do or cause to be done all such other
things as the Administrative Agent may reasonably request from time to time in
order to give full effect to this Pledge Agreement and to secure the rights of
the Administrative Agent hereunder, all without any cost or expense to the
Administrative Agent or any Lender. Each Pledgor hereby irrevocably authorizes
the Administrative Agent at any time and from time to time to file in any filing
office in any Uniform Commercial Code jurisdiction any initial financing
statements and amendments thereto that (a) indicate the Collateral as the
Securities Collateral or words of similar effect, or as being of equal or lesser
scope or in greater detail, and (b) contain any other information required by
part 5 of Article 9 of the Uniform Commercial Code of the jurisdiction of the
filing office for the sufficiency or filing office acceptance of any financing
statement or amendment. Each Pledgor agrees to furnish any such information to
the Administrative Agent promptly upon request. Each Pledgor also ratifies its
authorization for the Administrative Agent to have filed in any Uniform
Commercial Code jurisdiction any like initial financing statements or amendments
thereto if filed prior to the date hereof. No Pledgor will permit to be effected
any amendment or modification of the charter, by-laws, operating agreements, or
other applicable organization documents of any of the Subsidiaries which would
(or would be reasonably likely to) adversely affect the rights or remedies of
the Administrative Agent hereunder or the value of the Securities Collateral.
Without the prior written consent of the Administrative Agent, no Pledgor will
cause or permit the membership interests of such Pledgor in any Subsidiary which
is a limited liability company to be evidenced by a certificate issued by such
Subsidiary or to constitute a security governed by Article 8 of the Uniform
Commercial Code of the jurisdiction in which such Subsidiary is organized.
11. Administrative Agent's Exoneration. Under no circumstances shall the
Administrative Agent be deemed to assume any responsibility for or obligation or
duty with respect to any part or all of the Securities Collateral of any nature
or kind or any matter or proceedings arising out of or relating thereto, other
than (a) to exercise reasonable care in the physical custody of the Securities
Collateral and (b) after an Event of Default shall have occurred and be
continuing to act in a commercially reasonable manner. Neither the
Administrative Agent nor any Lender shall be required to take any action of any
kind to collect, preserve or protect its or any Pledgor's rights in the
Securities Collateral or against other parties thereto. The Administrative
Agent's prior recourse to any part or all of the Securities Collateral shall not
constitute a condition of any demand, suit or proceeding for payment or
collection of any of the Obligations. This Pledge Agreement constitutes a pledge
of the Securities Collateral and any other applicable collateral hereunder only,
and not an assignment of any duties or obligations of any Pledgor with respect
thereto, and by its acceptance hereof and whether or not the
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Administrative Agent shall have exercised any of its rights or remedies
hereunder, the Administrative Agent does not undertake to perform or discharge,
and the Administrative Agent shall not be responsible or liable, other than for
gross negligence or willful misconduct, for the performance or discharge of any
such duties or responsibilities, including, without limitation, for any capital
calls. Each Pledgor agrees that, notwithstanding the exercise by the
Administrative Agent of any of its rights hereunder (other than the sale of the
Securities Collateral), such Pledgor shall remain liable nonetheless for the
full and prompt performance of all of such Pledgor's obligations and liabilities
under any operating agreement, limited partnership agreement, or similar
document evidencing or governing any units of membership interest or limited
partnership interest in any limited liability company or limited partnership
included in the Securities Collateral. Under no circumstances shall the
Administrative Agent or any holder of any of the Obligations as such be deemed
to be a member, limited partner, or other equity owner of any of the
Subsidiaries by virtue of the provisions of this Pledge Agreement unless
expressly agreed to in writing by the Administrative Agent or such holder.
Without limiting the generality of the foregoing, the Administrative Agent shall
not have any fiduciary duty as such to any Pledgor or any other equity owner of
any of the Subsidiaries by reason of this Pledge Agreement, whether by virtue of
the security interests and liens hereunder, or any enforcement action in respect
of such security interests and liens, unless and until the Administrative Agent
is actually admitted to the applicable Subsidiary as a substitute member or
substitute equity owner thereof after exercising enforcement rights under
(S)9-610 or (S)9-620 of the Uniform Commercial Code in effect in the State of
New York, or otherwise.
12. No Waiver, etc. Neither this Pledge Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a written instrument
expressly referring to this Pledge Agreement and to the provisions so modified
or limited, and executed by the Administrative Agent, with the consent of the
Majority Lenders, and the Pledgors. No act, failure or delay by the
Administrative Agent shall constitute a waiver of its rights and remedies
hereunder or otherwise. No single or partial waiver by the Administrative Agent
of any default or right or remedy that it may have shall operate as a waiver of
any other default, right or remedy or of the same default, right or remedy on a
future occasion. Each Pledgor hereby waives presentment, notice of dishonor and
protest of all instruments, included in or evidencing any of the Obligations or
the Securities Collateral, and any and all other notices and demands whatsoever
(except as expressly provided herein or in the Credit Agreement).
13. Notice, etc. All notices and other communications made or required to
be given pursuant to this Pledge Agreement shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier or postal service or by
fascimile transmission confirmation, as the case may be, if to the
Administrative Agent or any Pledgor, at the address set forth for such Person in
(S)20 of the Credit Agreement, or such other address for notice as the
Administrative Agent or any Pledgor, as the case may be, shall have furnished in
writing to the Person giving the notice. Any such notice or communication shall
be deemed to have been duly given or made and to have become effective (i) if
delivered
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by hand, overnight courier or fascimile to a responsible officer of the party to
which it is directed, at the time of the receipt thereof by such officer or the
sending of such fascimile with transmission confirmed and (ii) if sent by
registered or certified first-class mail, postage prepaid, on the third Business
Day following the mailing thereof.
14. Termination; Release of Collateral. (a) Upon final payment and
performance in full in cash of the Obligations and the cancellation or
termination of all Commitments to extend credit under the Credit Agreement or
any of the other Loan Documents, this Pledge Agreement shall terminate and the
Administrative Agent shall, at any Pledgor's request and expense, (i) return
such Securities Collateral in the possession or control of the Administrative
Agent as has not theretofore been disposed of pursuant to the provisions hereof,
together with any moneys and other property at the time held by the
Administrative Agent hereunder, and (ii) execute and deliver to the applicable
Pledgor, all releases, assignments and other instruments as may be necessary or
proper to terminate the Administrative Agent's security interest in such
Securities Collateral.
(b) Upon the completion of an IPO by the Borrower, and so long as the
Trustee terminates its security interest in such Securities Collateral, the
Administrative Agent shall, at the Parent's request and expense, (i) return all
Pledged Interests of the Borrower in the possession or control of the
Administrative Agent as has not theretofore been disposed of pursuant to the
provisions hereof, and (ii) execute and deliver to the Parent, all releases,
assignments and other instruments as may be necessary or proper to terminate the
Administrative Agent's security interest in such Pledged Interests.
15. Overdue Amounts. Until paid, all amounts due and payable by the
Pledgors hereunder shall be a debt secured by the Securities Collateral and
shall bear, whether before or after judgment, interest at the rate of interest
for overdue principal set forth in the Credit Agreement.
16. Governing Law; Consent to Jurisdiction. THIS PLEDGE AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. Each Pledgor agrees that any suit for the enforcement of this Pledge
Agreement may be brought in the courts of the State of New York or any federal
court sitting therein and consents to the non-exclusive jurisdiction of such
court and to service of process in any such suit being made upon such Pledgor by
mail at the address specified with his signature below. Each Pledgor hereby
waives any objection that he may now or hereafter have to the venue of any such
suit or any such court or that such suit is brought in an inconvenient court.
17. Waiver of Jury Trial. EACH PARTY HERETO WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS PLEDGE AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THE PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
each Pledgor waives any right which it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in
-12-
addition to, actual damages. Each Pledgor (a) certifies that neither the
Administrative Agent or any Lender nor any representative, agent or attorney of
the Administrative Agent or any Lender has represented, expressly or otherwise,
that the Administrative Agent or any Lender would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges that, in
entering into the Credit Agreement and the other Loan Documents to which the
Administrative Agent or any Lender is a party, the Administrative Agent and the
Lenders are relying upon, among other things, the waivers and certifications
contained in this (S)18.
18. Miscellaneous. The headings of each section of this Pledge Agreement
are for convenience only and shall not define or limit the provisions thereof.
This Pledge Agreement and all rights and obligations hereunder shall be binding
upon each Pledgor and his respective successors and assigns, and shall inure to
the benefit of the Administrative Agent and the Lenders and their respective
successors and assigns. If any term of this Pledge Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
be in no way affected thereby, and this Pledge Agreement shall be construed and
be enforceable as if such invalid, illegal or unenforceable term had not been
included herein. Each Pledgor acknowledges receipt of a copy of this Pledge
Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, intending to be legally bound, each Pledgor and the
Administrative Agent have caused this Pledge Agreement to be executed as of the
date first above written.
REPUBLIC ENGINEERED PRODUCTS LLC
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
BLUE BAR, L.P.
By: BLUE STEEL CORPORATION
Its General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
The undersigned Subsidiaries hereby join in the above Pledge Agreement
for the sole purpose of consenting to and being bound by the provisions of
(S)(S)4.1, 6 and 7 thereof, the undersigned hereby agreeing to cooperate fully
and in good faith with the Administrative Agent and the Pledgors in carrying out
such provisions.
REPUBLIC ENGINEERED PRODUCTS LLC
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
BLUE STEEL CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
N&T RAILWAY COMPANY LLC
By: REPUBLIC ENGINEERED PRODUCTS LLC
Its Sole Member
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
ANNEX A TO PLEDGE AGREEMENT
None of the issuers has any authorized, issued or outstanding shares of
its capital stock, membership interests or other equity interests of any class
or any commitments to issue any shares of its capital stock, membership
interests or other equity interests of any class or any securities convertible
into or exchangeable for any shares of its capital stock, membership interests
or other equity interests of any class except as otherwise stated in this Annex
A.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Class of Number of Number of Number of Par or
Record Securities or Authorized Issued Outstanding Liquidation
-------------
Issuer Owner other Equity Securities Securities or Securities or Value
------ ----- ------------ ------------- -------------- ------------- --------
Interests or other other Equity other Equity
--------- --------- ------------ ------------
Equity Interests Interests
------ --------- ---------
Interests
---------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Republic Engineered Blue Bar, L.P. Membership 100%
Products LLC interests
----------------------------------------------------------------------------------------------------------------------------
N&T Railway Company Republic Membership 100%
LLC Engineered Interests
Products LLC
----------------------------------------------------------------------------------------------------------------------------
Blue Steel Capital Republic Common Stock 100%
Corp. Engineered
Products LLC
----------------------------------------------------------------------------------------------------------------------------
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