MASTER PLEDGE AGREEMENT
MASTER PLEDGE AGREEMENT ("Agreement"), dated as of August 13, 1999, among
Republic Technologies International, LLC, a Delaware limited liability company
(the "Company"), RTI CAPITAL CORP., a Delaware corporation ("RTI"), REPUBLIC
TECHNOLOGIES INTERNATIONAL HOLDINGS, LLC, a Delaware limited liability company
("Holdings"), each other guarantor listed on Schedule I hereto (each such
guarantor, together with Holdings, the Company and RTI, each, a "Pledgor",
collectively, the "Pledgors") and UNITED STATES TRUST COMPANY OF NEW YORK, a
bank and trust company organized under the New York Banking Law, as collateral
agent (in such capacity, the "Collateral Agent") for the Secured Parties (as
defined herein).
R E C I T A L S :
A. Reference is made to (i) the Credit Agreement, dated as of August 13,
1999 (as amended, amended and restated, supplemented or otherwise modified from
time to time, including any refinancing, refunding, replacement or extension
thereof or a portion thereof and whether by the Lenders (as hereinafter defined)
or any other lender or group of lenders, the "Credit Agreement"), among the
Company, the financial institutions party thereto as lenders (the "Lenders"),
BankBoston, N.A., as an agent for the Lenders (in such capacity, the
"Administrative Agent", together with the Lenders, the "Credit Agreement
Parties") and (ii) the Indenture, dated as of August __, 1999 (as amended or
modified from time to time, the "Indenture"), among United States Trust Company
of New York, as trustee (in such capacity, the "Indenture Trustee"), for the
holders of the Senior Notes (as defined below) from time to time (the "Senior
Note Holders"), the Company and RTI, as issuers (the "Issuers"), and the
Guarantors party thereto and (iii) the Pledge Intercreditor Agreement, dated as
of August 13, 1999 (as amended or modified from time to time, the "Pledge
Intercreditor Agreement"), among the Secured Parties and the Collateral Agent
and countersigned by the Pledgors.
B. The Lenders have agreed to make Revolving Credit Loans (as defined in
the Credit Agreement and which term will include any loans, revolving, term or
otherwise, made under the Credit Agreement) to, and issue Letters of Credit (as
defined in the Credit Agreement) for the account of, the Company in an aggregate
principal amount of up to $425,000,000 upon the terms and subject to the
conditions specified in the Credit Agreement. Pursuant to the Indenture, the
Issuers are issuing $425,000,000 aggregate principal amount of their 133/4%
Senior Secured Notes due 2009 (together with any substantially identical notes
of the Issuers issued in exchange therefor in accordance with the Indenture, the
"Senior Notes").
C. The obligations of the Lenders to make Revolving Credit Loans and to
issue Letters of Credit under the Credit Agreement, and the obligations of the
Senior Note Holders to purchase the Senior Notes, are conditioned upon, among
other things, the execution and delivery by the Pledgors of a pledge agreement
in the form hereof to secure (i) the due and punctual payment of (a) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Revolving Credit Loans and the Senior Notes, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
redemption, upon a required offer to purchase or otherwise, (b) each payment
required to be made by the Company under the Credit Agreement in respect of any
Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, and (c) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy,
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insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Pledgors to the Secured Parties
under the Senior Credit Documents, (ii) the due and punctual performance of all
covenants, agreements, obligations and liabilities of the Pledgors under the
Senior Credit Documents and (iii) the due and punctual payment and performance
of all obligations of the Pledgors under each Rate Protection Agreement (as
defined in the Credit Agreement) entered into with any counterparty that was a
Lender at the time such Rate Protection Agreement was entered into (all the
monetary and other obligations referred to in the preceding clauses (i) through
(iii) being referred to collectively as the "Obligations").
A G R E E M E N T:
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself
and each other Secured Party (and each of their successors or assigns), hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definition of Terms Used Herein. All capitalized terms used
but not defined herein shall have the meanings set forth in the Credit
Agreement, the Indenture and the other Senior Credit Documents, as appropriate.
All references to specific Sections in the Credit Agreement shall be deemed to
also be references to the parallel provision of any other credit agreement
included within the definition of "Credit Agreement."
SECTION 1.02. Definition of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
"Additional Interests" shall have the meaning assigned to such term in
Section 2.01.
"Additional Shares" shall have the meaning assigned to such term in
Section 2.01.
"Collateral" shall have the meaning assigned to such term in Section 2.01.
"Distributions" shall have the meaning assigned to such term in Section
2.01.
"Event of Default" shall mean any "Event of Default" as defined in the
Credit Agreement and any "Event of Default" as defined in the Indenture.
"Federal Securities Laws" shall have the meaning assigned to such term in
Section 4.03.
"Guarantee Agreements" shall mean the "Guaranties" as defined in the
Credit Agreement and the Indenture.
"Governmental Authority" shall have the meaning assigned to such term in
the Indenture.
"Indebtedness" shall mean any "Indebtedness" as defined in the Credit
Agreement and any "indebtedness" as defined in the Indenture.
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"Indemnitee" shall have the meaning assigned to such term in the Pledge
Intercreditor Agreement.
"Initial Pledged Shares" shall have the meaning assigned to such term in
Section 2.01.
"Initial Pledged Interests" shall have the meaning assigned to such term
in Section 2.01.
"Obligations" shall have the meaning assigned to such term in Recital C of
this Agreement.
"Person" shall have the meaning assigned to such term in the Credit
Agreement.
"Pledged Interests" shall have the meaning assigned to such term in
Section 2.01.
"Pledged Securities" shall have the meaning assigned to such term in
Section 2.01.
"Pledged Shares" shall have the meaning assigned to such term in Section
2.01.
"Secured Parties" shall mean (i) the Lenders, (ii) the Senior Note
Holders, (iii) the Administrative Agent, (iv) the Indenture Trustee, (v) the
Collateral Agent and (vi) the successors and assigns of each of the foregoing.
"Security Documents" shall mean each of the documents and agreements
defined as a "Security Document" in the Indenture or the Credit Agreement.
"Senior Credit Documents" shall mean the Credit Agreement, the Indenture
and the Support Documents.
"Support Documents" shall mean the Security Documents and the Guarantee
Agreements.
"Tax Code" shall have the meaning assigned to such term in Section 2.01.
"Wholly-Owned Restricted Subsidiary" shall have the meaning assigned to
such term in the Indenture.
SECTION 1.03. Terms Generally. The definitions in Section 1.02 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles and Sections shall be deemed references to Articles and
Sections of this Agreement unless the context shall otherwise require.
ARTICLE II
PLEDGE
SECTION 2.01. Pledge. As security for the payment or performance, as the
case may be, in full of the Obligations, the Pledgors hereby bargain, sell,
convey, assign, set over, mortgage, pledge, hypothecate and transfer to the
Collateral Agent, its successors and its assigns, for the benefit of the Secured
Parties, and hereby grant to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest in the following:
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(i) the issued and outstanding shares of capital stock of each
Person described in Schedule II-A annexed hereto and each other Subsidiary
which is a corporation hereafter acquired or formed by such Pledgor (which
are and shall remain at all times until this Agreement terminates,
certificated shares), including the certificates representing all such
shares (collectively, the "Initial Pledged Shares") and any interest of
such Pledgor in the entries on the books of any financial intermediary
pertaining to the Initial Pledged Shares; provided, however, that such
Pledgor shall not be required to pledge shares possessing more than 65% of
the voting power of all classes of capital stock entitled to vote of any
Subsidiary (other than Canadian Drawn Steel Company Inc.) which is a
controlled foreign corporation (as defined in Section 957(a) of the
Internal Revenue Code of 1986, as amended from time to time (the "Tax
Code")) and, in any event, shall not be required to pledge the shares of
stock of any Subsidiary (other than Canadian Drawn Steel Company Inc.)
otherwise required to be pledged pursuant to this Section 2.01(i) to the
extent that such pledge would constitute an investment of earnings in
United States property under Section 956 (or a successor provision) of the
Tax Code, which investment would trigger an increase in the gross income
of a United States shareholder of such Pledgor pursuant to Section 951 (or
a successor provision) of the Tax Code;
(ii) all additional shares of capital stock of whatever class of any
issuer of the Pledged Shares from time to time acquired by such Pledgor in
any manner (which are and shall remain at all times until this Agreement
terminates, certificated shares), including the certificates representing
such additional shares and any interest of such Pledgor in the entries on
the books of any financial intermediary pertaining to such additional
(collectively, the "Additional Shares"; together with the Initial Pledged
Shares, the "Pledged Shares");
(iii) all membership interests and/or partnership interests, as
applicable, of each Person described in Schedule II-B annexed hereto and
each other Subsidiary which is a limited liability company or partnership
hereafter acquired or formed by such Pledgor, together with all rights,
privileges, authority and powers of such Pledgor in and to each such
Person or under the membership or partnership agreement of each such
Person (the "Operative Agreements"), and the certificates, instruments and
agreements, if any, representing such membership or partnership interests
(collectively, the "Initial Pledged Interests");
(iv) subject to Section 2.04, all options, warrants, rights,
agreements, additional membership or partnership interests or other
interests relating to each such Person described in Section 2.01(iii)
above or any interest in any such Person, including, without limitation,
any right relating to the equity or membership or partnership interests in
any such Person or under the Operative Agreement of any such Person, from
time to time acquired by such Pledgor in any manner and the certificates,
instruments and agreements, if any, representing such additional interests
(collectively, the "Additional Interests"; together with the Initial
Pledged Interests, the "Pledged Interests"; the Pledged Interests,
together with the Pledged Shares and the items or types of Pledged
Collateral described in Section 2.01(vi) of this Agreement, collectively,
the "Pledged Securities");
(v) subject to Section 2.04, all dividends, cash, options, warrants,
rights, instruments, distributions, returns of capital or principal,
income, interest, profits and other property, interests (debt or equity)
or proceeds, including as a result of a split, revision, reclassification
or other like change of the Pledged Securities, from time to time
received, receivable or otherwise distributed to such Pledgor in respect
of or in exchange for any or all of the Pledged Securities (collectively,
"Distributions");
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(vi) subject to Section 2.04, without affecting the obligations of
such Pledgor under any provision prohibiting such action hereunder or
under the Senior Credit Documents, in the event of any consolidation or
merger in which any Person listed in Schedule II-A or Schedule II-B
annexed hereto is not the surviving entity, all shares of each class of
the capital stock of the successor corporation or interests or
certificates of the successor limited liability company or partnership
owned by such Pledgor (unless such successor is such Pledgor itself)
formed by or resulting from such consolidation or merger;
(vii) all other property that may be delivered to and held by the
Collateral Agent pursuant to the terms hereof;
(viii) all general intangibles to the extent necessary to realize on
any of the foregoing;
(ix) all documents, books, records, files and other materials
relating to any of the foregoing; and
(x) all proceeds of any of the foregoing (the items referred to in
Section 2.01 (i) through (x) being collectively called the "Collateral").
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and its assigns, for the ratable
benefit of the Secured Parties, forever, subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 2.02. Delivery of the Collateral. (i) Each Pledgor agrees to
promptly deliver or cause to be delivered to the Collateral Agent any and all
Pledged Securities, and any and all certificates, agreements or other
instruments or documents representing the Collateral.
(ii) Upon delivery to the Collateral Agent, (a) the Pledged
Securities shall be accompanied by undated stock powers duly executed in blank
or other instruments of transfer reasonably satisfactory to the Collateral Agent
and by such other instruments and documents as the Collateral Agent may
reasonably request, (b) all other property comprising part of the Collateral,
including uncertificated Pledged Securities, shall be accompanied by proper
instruments of assignment duly executed by the applicable Pledgor and such other
instruments or documents as the Collateral Agent may reasonably request and (c)
UCC-1 financing statements for each of the entities and in each of the
jurisdictions listed on Schedule V. Each delivery of Pledged Securities shall be
accompanied by a schedule describing the securities being delivered and the
securities that have been previously pledged, which schedule shall be attached
hereto as Schedules II-A and II-B, as applicable, and made a part hereof. Each
schedule so delivered shall supersede any prior schedule so delivered.
SECTION 2.03. Registration in Nominee Name; Denominations. The Collateral
Agent shall have the right (in its sole and absolute discretion) to hold the
Pledged Securities in its own name as pledgee, the name of its nominee or the
name of the applicable Pledgor, endorsed or assigned in blank or in favor of the
Collateral Agent. Each Pledgor will promptly give to the Collateral Agent copies
of any notices or other communications received by it with respect to Pledged
Securities registered in the name of such Pledgor. The Collateral Agent shall at
all times have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 2.04. Voting Rights; Dividends and Interest, etc. (i) Unless and
until an Event of Default shall have occurred and be continuing:
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(a) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers accruing to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms
of this Agreement and the other Senior Credit Documents; provided,
however, that no such action shall be permitted (regardless of whether an
Event of Default has occurred and is continuing) if such action would
materially and adversely affect the rights inuring to a holder of the
Pledged Securities or the rights and remedies of the Collateral Agent or
the other Secured Parties under this Agreement or any other Senior Credit
Document or the ability of the Collateral Agent or the other Secured
Parties to exercise the same.
(b) The Collateral Agent shall execute and deliver to each Pledgor,
or cause to be executed and delivered to such Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers that it is entitled to exercise
pursuant to Section 2.04 (a).
(c) Each Pledgor shall be entitled to receive and retain any and all
dividends, interest and principal paid in cash on the Pledged Securities
pledged by it to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid in
accordance with, the terms and conditions of the Senior Credit Documents
and applicable laws. Other than pursuant to the first sentence of this
Section 2.04 (i)(c), all principal, all noncash dividends, interest and
principal, and all dividends, interest and principal paid or payable in
cash or otherwise in connection with a partial or total liquidation or
dissolution, return of capital, capital surplus or paid-in surplus, and
all other distributions made on or in respect of Pledged Securities,
whether paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding capital
stock of the issuer of any Pledged Securities or received in exchange for
Pledged Securities or any part thereof, or in redemption thereof, or as a
result of any merger, consolidation, acquisition or other exchange of
assets to which such issuer may be a party or otherwise, shall be and
become part of the Collateral, and, if received by a Pledgor, shall not be
commingled by such Pledgor with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for the
benefit of the Collateral Agent and shall be forthwith delivered to the
Collateral Agent in the same form as so received (with any necessary
endorsement or instrument of transfer).
(ii) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest and principal payments
that such Pledgor is authorized to receive pursuant to Section 2.04 (i)(c) above
shall cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividend, interest and principal payments. All dividends,
interest and principal that are received by any Pledgor contrary to the
provisions of this Section 2.04 shall be received in trust for the benefit of
the Collateral Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith delivered to the Collateral Agent in the same
form as so received (with any necessary endorsement or instrument of transfer).
Any and all money and other property paid over to or received by the Collateral
Agent pursuant to the provisions of Section 2.04 (ii) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon
receipt of such money or other property and shall be applied in accordance with
the provisions of Section 4.02. After all Events of Default under the Credit
Agreement and the Indenture have been cured or waived, the Collateral Agent
shall, within five Business Days after all such Events of Default have been
cured or waived, repay to the Pledgors all cash dividends, interest or principal
that such Pledgors would otherwise be permitted to retain pursuant to the terms
of Section 2.04 (i)(c), but only to the extent such cash dividends, interest or
principal remain in such account.
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(iii) Upon the occurrence and during the continuance of an Event of
Default, all rights of the Pledgors to exercise the voting and consensual rights
and powers that they are entitled to exercise pursuant to Section 2.04 (i)(a),
and the obligations of the Collateral Agent under Section 2.04 (i)(b), shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to exercise
such voting and consensual rights and powers.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Pledgor represents, warrants and covenants, as to itself and the
Collateral pledged by it hereunder, to and with the Collateral Agent and each
other Secured Party, that:
(i) the Pledged Shares and Pledged Interests represent that
percentage as set forth on Schedules II-A and II-B of the issued and
outstanding shares of each class of the Pledged Shares and of the
membership or partnership interests of the Pledged Interests of the issuer
with respect thereto;
(ii) the Pledged Securities have been duly and validly authorized
and issued by the issuers thereof and are fully paid and nonassessable;
(iii) except for the security interest granted hereunder and as
provided in Section 2.04, each Pledgor (a) is and will at all times
continue to be the direct owner, beneficially and of record, of the
Pledged Securities indicated on Schedules II-A and II-B to be owned by
such Pledgor, (b) holds the same free and clear of all Liens, (c) will
make no assignment, pledge, hypothecation or transfer of, or create any
security interest in, the Collateral, other than as permitted hereunder
and (d) subject to Section 2.04, will cause any and all Collateral,
whether for value paid by any Pledgor or otherwise, to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder;
(iv) such Pledgor (a) has the power and authority to pledge the
Collateral pledged by it hereunder in the manner hereby done or
contemplated and (b) will defend its and the Collateral Agent's title or
interest thereto or therein (and in the proceeds thereof) against any and
all Liens (other than the Lien of this Agreement), however arising, of all
Persons whomsoever;
(v) no consent of any other Person (including stockholders or
creditors of any Pledgor) and no consent, approval or action by, or notice
to or filing with, any Government Authority or any securities exchange was
or is necessary (a) to the validity of the pledge effected hereby (b) the
exercise by the Collateral Agent of the rights provided for in this
Agreement or (c) the exercise by the Collateral Agent of the remedies in
respect of the Collateral pursuant to this Agreement, except those which
have been obtained and are in full force and effect. In the event that the
Collateral Agent desires to exercise any remedies, voting or consensual
rights or attorney-in-fact powers set forth in this Agreement and
determines it necessary to obtain any approvals or consents of any
approvals or consents of any Governmental Authority or any other Person
therefor, then, upon the reasonable request of the Collateral Agent, such
Pledgor agrees to use its commercially reasonable best efforts to assist
and aid the Collateral Agent to obtain as soon as practicable any
necessary approvals for the exercise of any such remedies, rights and
powers;
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(vi) by virtue of the execution and delivery by the Pledgors of this
Agreement, (a) when the Pledged Securities, certificates, instruments,
agreements or other documents representing or evidencing the Collateral
are delivered to the Collateral Agent in accordance with this Agreement
and (b) upon the filing of UCC-1 financing statements for each of the
entities and each of the jurisdictions listed on Schedule V, the
Collateral Agent will obtain a legal, valid and perfected first priority
security interest in the Pledged Securities and the proceeds thereof, as
security for the payment and performance of the Obligations;
(vii) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the
Collateral Agent in the Collateral as set forth herein;
(viii) all information set forth herein relating to the Pledged
Securities is accurate and complete in all material respects as of the
date hereof;
(ix) the pledge of the Pledged Securities pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof;
(x) with respect to each Pledgor that is a corporation, partnership,
limited liability company or similar entity, such Pledgor's chief
executive office is located at the address indicated on Schedule IV
annexed hereto. No Pledgor shall move its chief executive office nor
change its name unless (1) it shall have given the Collateral Agent not
less than thirty (30) days' prior written notice of its intention so to
do, clearly describing such new location or name and providing such other
information in connection therewith as the Collateral Agent may reasonably
request and Schedule IV hereof shall be deemed to be amended to reflect
such information, and (2) with respect to such new location or name, such
Pledgor shall have taken all action reasonably satisfactory to the
Collateral Agent to maintain the perfection and priority of the security
interest of the Collateral Agent for the benefit of the Secured Parties in
the Collateral intended to be granted hereby;
(xi) except for the warrants to be issued in connection with the
Senior Notes, there are no options, warrants, calls, rights, commitments
or agreements of any character to which any Pledgor is a party or by which
such Pledgor is bound obligating such Pledgor to issue, deliver or sell or
cause to be issued, delivered or sold, additional Pledged Securities or
obligating such Pledgor to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement or would result in the
imposition of any other Lien, restrict the transferability of any of the
Collateral or otherwise impair or conflict with such Pledgor's obligations
or the rights of the Collateral Agent or the Secured Parties;
(xii) neither the execution and delivery of this Agreement or any
Senior Credit Document by any Pledgor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof
(a) violates any charter or by-laws or other organizational document of
any Pledgor or any issuer of Pledged Securities, (b) violates the terms of
any agreement, indenture, mortgage, deed of trust, equipment lease,
instrument or other document to which any Pledgor is a party, or by which
it may be bound or to which any of its properties or assets may be
subject, which violation or conflict would have a material adverse effect
on the value of the Collateral or an adverse effect on the security
interests hereunder or (c) conflicts with any law, order, rule or
regulation applicable to any Pledgor of any Governmental Authority having
jurisdiction over such Pledgor or its property which conflict would have a
material adverse effect on the value of the Collateral or an adverse
effect on the security interests hereunder; and
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(xiii) each Pledgor agrees that at any time and from time to time,
at the sole cost and expense of such Pledgor, it shall promptly execute
and deliver all further instruments and documents, including, without
limitation, supplemental or additional UCC-l financing statements, and
take all further action that may be necessary or that the Collateral Agent
may reasonably request, in order to perfect and protect the pledge,
security interest and Lien granted or purported to be granted hereby or to
enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
ARTICLE IV
REMEDIES
SECTION 4.01. Remedies upon Default. If an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise, to the extent
permitted by law, all the rights of a secured party under the Uniform Commercial
Code of the State of New York or its equivalent in other jurisdictions (the
"Code") (whether or not the Code is in effect in the jurisdiction where such
rights are exercised) and, in addition, the Collateral Agent may, without being
required to give any notice, except as herein provided or as may be required by
mandatory provisions of law, sell the Collateral, or any part thereof, at public
or private sale or at any broker's board or on any securities exchange, for
cash, upon credit or for future delivery as the Collateral Agent shall deem
appropriate. The Collateral Agent shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
to Persons who will represent and agree that they are purchasing the Collateral
for their own account for investment and not with a view to the distribution or
sale thereof, and upon consummation of any such sale the Collateral Agent shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each such purchaser at any such sale shall hold
the property sold absolutely free from any claim or right on the part of any
Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all
rights of redemption, stay, valuation and appraisal that such Pledgor now has or
may at any time in the future have under any rule of law or statute now existing
or hereafter enacted.
The Collateral Agent shall give each Pledgor at least 10 days' prior
written notice (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-504(3) of the Code) of the Collateral Agent's intention to
make any sale of Collateral owned by such Pledgor. Such notice, in the case of a
public sale, shall state the time and place for such sale and, in the case of a
sale at a broker's board or on a securities exchange, shall state the board or
exchange at which such sale is to be made and the day on which the Collateral,
or portion thereof, will first be offered for sale at such board or exchange
and, in the case of a private sale, shall state the time after which any such
sale is to be made. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Collateral
Agent may fix and state in the notice of such sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Collateral Agent may (in its sole and absolute
discretion) determine. The Collateral Agent shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid in full by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. Subject
to the terms of the Pledge Intercreditor
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Agreement, at any public sale made pursuant to this Section 4.01, any Secured
Party may bid for or purchase, free (to the extent permitted by law) from any
right of redemption, stay, valuation or appraisal on the part of any Pledgor
(all said rights being also hereby waived and released to the extent permitted
by law), the Collateral or any part thereof offered for sale and may make
payment on account thereof by using any Obligation then due and payable to it
from any Pledgor as a credit against the purchase price, and the Collateral
Agent may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to any Pledgor therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Collateral Agent shall be free
to carry out such sale pursuant to such agreement, and none of the Pledgors
shall be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Collateral Agent shall have
entered into such an agreement all Events of Default shall have been cured and
the Obligations paid in full; provided, however, that in the event the
Obligations shall have been paid in full, the Pledgors shall be entitled to the
return of the proceeds of the sale of any such Collateral to the extent not
applied to payment of the Obligations. As an alternative to exercising the power
of sale herein conferred upon it, the Collateral Agent may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the Collateral
or any portion thereof pursuant to a judgment or decree of a court or courts
having competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. Any sale pursuant to the provisions of this Section 4.01 shall be
deemed to conform to the commercially reasonable standards as provided in
Section 9-504(3) of the Code.
SECTION 4.02. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 4.01, as well as any Collateral consisting of
cash, shall be applied by the Collateral Agent as follows:
FIRST, to the payment of all reasonable costs and expenses incurred
by the Collateral Agent (in its capacity as such hereunder) in connection
with such sale or otherwise in connection with this Agreement or the
Pledge Intercreditor Agreement, including all court costs and the fees,
other charges and expenses of its agents and legal counsel, the repayment
of all advances made by the Collateral Agent hereunder or under the Pledge
Intercreditor Agreement on behalf of any Pledgor and any other costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder or under the Pledge Intercreditor Agreement;
SECOND, subject to the provisions of the Pledge Intercreditor
Agreement, to the Collateral Agent for distribution to the Secured Parties
as provided in Article IV of the Pledge Intercreditor Agreement for the
satisfaction of the Obligations owed to the Secured Parties; and
THIRD, to the Pledgors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
Subject to the terms of the Pledge Intercreditor Agreement, the Collateral Agent
shall have absolute discretion as to the time of application of any such
proceeds, moneys or balances in accordance with this Agreement. Upon any sale of
the Collateral by the Collateral Agent including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
SECTION 4.03. Securities Act, etc. In view of the position of the Pledgors
in relation to the Pledged Securities, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such
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Act and any such similar statute as from time to time in effect being called the
"Federal Securities Laws") with respect to any disposition of the Pledged
Securities permitted hereunder. The Pledgors understand that compliance with the
Federal Securities Laws might very strictly limit the course of conduct of the
Collateral Agent if the Collateral Agent were to attempt to dispose of all or
any part of the Pledged Securities, and might also limit the extent to which or
the manner in which any subsequent transferee of any Pledged Securities could
dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Collateral Agent in any attempt to dispose of all or
part of the Pledged Securities under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect. The Pledgors
recognize that in light of the foregoing restrictions and limitations the
Collateral Agent may, with respect to any sale of Pledged Securities, limit the
purchasers to those who will agree, among other things, to acquire Pledged
Securities for their own account, for investment, and not with a view to the
distribution or resale thereof. The Pledgors acknowledge and agree that, in
light of the foregoing restrictions and limitations, the Collateral Agent, in
its sole and absolute discretion, (i) may proceed to make such a sale whether or
not a registration statement for the purpose of registering the Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (ii) may approach and negotiate with a single possible purchaser to
effect such sale. The Pledgors acknowledge and agree that any such sale might
result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the Collateral Agent, in its
sole and absolute discretion, may in good xxxxx xxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached. The provisions of
this Section 4.03 will apply notwithstanding the existence of a public or
private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.
SECTION 4.04. Registration, etc. Each P1edgor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Securities at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, take or cause the issuer of such Pledged Securities to
take such action and prepare, distribute and/or file such documents, as are
required or advisable in the reasonable opinion of counsel for the Collateral
Agent, to permit the public sale of such Pledged Securities. Each Pledgor
jointly and severally agrees to (i) indemnify, defend and hold harmless the
Collateral Agent, the other Secured Parties and their respective officers,
directors, affiliates and controlling Persons from and against all losses,
liabilities, expenses, costs (including the reasonable fees and expenses of
legal counsel to the Collateral Agent) and claims (including the costs of
investigation) that they may incur insofar as any such loss, liability, expense,
cost or claim arises out of or is based upon any alleged untrue statement of a
material fact contained in any prospectus, offering circular or similar document
(or any amendment or supplement thereto), or arises out of or is based upon any
alleged omission to state a material fact required to be stated therein or
necessary to make the statements in any thereof not misleading, except insofar
as the same may have been caused by any untrue statement or omission based upon
information furnished in writing to any Pledgor or the issuer of such Pledged
Securities by the Collateral Agent or any other Secured Party expressly for use
therein, and (ii) enter into an indemnification agreement with any underwriter
of or placement agent for any Pledged Securities, on its standard form, to
substantially the same effect. Each Pledgor further agrees to use all reasonable
efforts to qualify, file or register, or cause the issuer of such Pledged
Securities to qualify, file or register, any of the Pledged Securities under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. The Pledgors will jointly and
severally bear all costs and expenses of carrying out their obligations under
this Section 4.04. The Pledgors acknowledge that there is no adequate remedy at
law for failure by them to comply with the provisions of this Section 4.04 and
that such failure would not be adequately compensable in damages, and therefore
agree that their agreements contained in this Section 4.04 may be specifically
enforced.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in the Credit Agreement or the Indenture. All communications and
notices hereunder to any Pledgor shall be given to it at the address for notices
set forth on Schedule IV. All communications and notices hereunder to the
Collateral Agent shall be given to it at the address set forth in Schedule III
hereto.
SECTION 5.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the security interests granted hereunder and all obligations of
the Pledgors hereunder shall be absolute and unconditional irrespective of (i)
any lack of validity or enforceability of any Senior Credit Document, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (ii) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from any
Senior Credit Document or any other agreement or instrument, (iii) any exchange,
release or non-perfection of any Lien on other collateral, or any release or
amendment or waiver of or consent under or departure from any guarantee,
securing or guaranteeing all or any of the Obligations or (iv) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, any Pledgor in respect of the Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Obligations by
any of the Pledgors).
SECTION 5.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Senior Credit Document shall be
considered to have been relied upon by the Secured Parties and shall survive the
making by the Lenders of the Revolving Credit Loans and any Letter of Credit and
the purchase by the Senior Note Holders of the Senior Notes, and the execution
and delivery to the Senior Note Holders of the Senior Notes, regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on,
or any other fee or amount payable under or in respect of, any Loan, Senior Note
or Letter of Credit, or this Agreement or, without duplication of the foregoing,
under any of the other Senior Credit Documents is outstanding and unpaid and so
long as the Commitments and the Letter of Credit Commitment have not been
terminated.
SECTION 5.04. Binding Effect; Assignments. This Agreement shall become
effective as to any Pledgor when a counterpart hereof executed on behalf of such
Pledgor shall have been delivered to the Collateral Agent and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Pledgor and the Collateral Agent and their
respective successors and assigns, and shall inure to the benefit of the parties
hereto, and their respective successors and assigns, except that the Pledgors
shall not have the right to assign their rights hereunder or any interest herein
or in the Collateral, or any part thereof (and any such attempted assignment
shall be void), or otherwise pledge, encumber or grant any option with respect
to the Collateral, or any part thereof, or any cash or property held by the
Collateral Agent as Collateral under this Agreement except as expressly
contemplated by this Agreement or the other Senior Credit Documents.
SECTION 5.05. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Pledgor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
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SECTION 5.06. Power of Attorney. The Collateral Agent is hereby appointed
by the Pledgors, as the true and lawful agent and attorney-in-fact of each
Pledgor, and in such capacity the Collateral Agent shall have the right, with
power of substitution for the Pledgors and in each Pledgor's name or otherwise,
for the use and benefit of the Collateral Agent and the other Secured Panics,
upon the occurrence and during the continuance of an Event of Default, (i) to
receive, endorse, assign and/or deliver any and all notes, acceptances, checks,
drafts, money orders or other evidences of payment representing any interest or
dividend or other distribution payable in respect of the Collateral or any part
thereof, (ii) to demand, collect, receive payment of, give receipt for and give
discharges and releases of all or any of the Collateral; (iii) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (iv) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (v) to use, sell, assign, transfer,
pledge, make any agreement with respect to or otherwise deal with all or any of
the Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral for all purposes; provided,
however, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent or any other Secured Party to make any
commitment, incur any liability or make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent or any other Secured
Party, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby, and no action taken or
omitted to be taken by the Collateral Agent or any other Secured Party with
respect to the Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of any Pledgor or to any claim or action against
the Collateral Agent or any other Secured Party.
SECTION 5.07. Collateral Agent's Fees and Expenses; Indemnification. (i)
Each Pledgor jointly and severally agrees to pay upon demand to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts or agents, that the
Collateral Agent may incur in connection with (a) the administration of this
Agreement or the Pledge Intercreditor Agreement, (b) the custody or preservation
of, or the sale of, collection from or other realization upon any of the
Collateral, (c) the exercise, enforcement or protection of any of the rights of
the Collateral Agent hereunder or under the Pledge Intercreditor Agreement or
(d) the failure of the Pledgors to perform or observe any of the provisions
hereof or thereof.
(ii) Without limitation of their indemnification obligations under
the other Senior Credit Documents, each Pledgor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees against, and hold each
of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or the
Pledge Intercreditor Agreement or any claim, litigation, investigation or
proceeding relating hereto or thereto or to the Collateral, whether or not any
Indemnitee is a party thereto; provided, however, that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(iii) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 5.07 shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Senior Credit Document or any investigation made by or on behalf of the
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Collateral Agent or any other Secured Party. All amounts due under this Section
shall be payable on written demand therefor.
SECTION 5.08. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.09. Waivers; Amendment. (i) No failure or delay of the
Collateral Agent or any other Secured Party in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Collateral Agent hereunder and of the other Secured Parties under the other
Senior Credit Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Senior Credit Document or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Pledgor in any case shall entitle such Pledgor or any
other Pledgor to any other or further notice or demand in similar or other
circumstances.
(ii) Subject to the provisions of the Pledge Intercreditor
Agreement, neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into among
the Pledgors and the Collateral Agent, with the prior written consent of the
Required Secured Parties (as defined in the Pledge Intercreditor Agreement);
provided, however, that except as provided herein or in the other Senior Credit
Documents, no such agreement shall amend, modify, waive or otherwise adversely
affect a Secured Party's rights and interests in any material amount of the
Collateral without the prior written consent of such Secured Party.
SECTION 5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER SENIOR CREDIT
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER SENIOR CREDIT DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 5.10.
SECTION 5.11. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Senior Credit Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
-15-
SECTION 5.12. Jurisdiction; Consent to Service of Process. (i) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Senior Credit Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that a claims in respect of any
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Senior Credit Documents against any Pledgor or its properties in the
courts of any jurisdiction.
(ii) Each Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Senior
Credit Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(iii) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 5.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 5.13. Termination. This Agreement and the security interests
granted hereby shall terminate when all the Obligations have been indefeasibly
paid in full and the Lenders have no further Commitments (as defined in the
Credit Agreement) under the Credit Agreement.
SECTION 5.14. Headings. Article and Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 5.15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective as
provided in Section 5.04. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 5.16. Agreement May Constitute Financing Statement. Each Pledgor
consents to the filing of this Agreement or a photocopy thereof as a financing
statement under the Code in which the Collateral Agent may determine such filing
to be necessary or desirable.
SECTION 5.17. Pledge Intercreditor Agreement. (i) The Collateral Agent
agrees, for itself and for each other Secured Party, that it and each other
Secured Party shall be bound by the terms of the Pledge Intercreditor Agreement
in connection with the administration of this Agreement.
(ii) Each Pledgor hereby acknowledges receipt of a copy of and
agrees to be bound by the terms of the Pledge Intercreditor Agreement.
-16-
SECTION 5.18. References to Credit Agreement. Upon the payment and
discharge in full of all Outstanding Credit Agreement Obligations (as defined in
the Pledge Intercreditor Agreement), all references herein to the terms of the
Credit Agreement shall become null and void (other than references for the
purposes of incorporating herein definitions of terms used therein, which terms
will continue to have the meanings assigned thereto immediately prior to such
payment and discharge, subject to subsequent amendment or modifications in
accordance with the terms hereof).
SECTION 5.19. Additional Pledgors. Pursuant to the Credit Agreement, and
the Indenture, each Wholly-Owned Restricted Subsidiary that was not in existence
or not such a Subsidiary on the date of the Credit Agreement is required to
enter into this Agreement as a Pledgor at such time as (i) it becomes such a
Subsidiary if such Subsidiary owns or possesses property of a type that would be
considered Collateral hereunder or (ii) such Subsidiary acquires or possesses
property of a type that would be considered Collateral hereunder. Upon execution
and delivery by the Collateral Agent and any Person mentioned in clause (i) or
(ii) above of an instrument in the form of Annex 1, such Person shall become a
Pledgor hereunder with the same force and effect as if originally named as a
Pledgor herein. The execution and delivery of such instrument shall not require
the consent of any Pledgor hereunder. The rights and obligations of each Pledgor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Pledgor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
REPUBLIC TECHNOLOGIES INTERNATIONAL
HOLDINGS, LLC
By: ___________________________________
Name:
Title:
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC
By: ___________________________________
Name:
Title:
RTI CAPITAL CORP.
By: ___________________________________
Name:
Title:
BLISS & XXXXXXXX, LLC
By: ___________________________________
Name:
Title:
CANADIAN DRAWN STEEL COMPANY INC.
By: ___________________________________
Name:
Title:
NIMISHILLEN & TUSCARAWAS, LLC
By: ___________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW
YORK, as Collateral Agent
By: ___________________________________
Name:
Title:
Schedule I to the
Master Pledge Agreement
GUARANTORS
Bliss & Xxxxxxxx, LLC
Canadian Drawn Steel Company Inc.
Nimishillen & Tuscarawas, LLC
Schedule II-A to the
Master Pledge Agreement
PLEDGED SHARES
RTI Capital Corp.
1 share of Common Stock, $.01 par value
Certificate #1
Registered owner - Republic Technologies International, LLC
Ownership Percentage - 100%
Canadian Drawn Steel Company Inc.
12,393,094 shares of Common Stock
Certificate #C-3
Registered owner - Republic Technologies International, LLC
Ownership Percentage - 100%
Schedule II-B to the
Master Pledge Agreement
PLEDGED INTERESTS
Republic Technologies International, LLC
100% Profit Sharing Interests
Certificate #1
Registered owner - Republic Technologies International Holdings, LLC
Bliss & Xxxxxxxx, LLC
100% Profit Sharing Interests
Certificate #1
Registered owner - Republic Technologies International, LLC
Nimishillen & Tuscarawas, LLC
100% Profit Sharing Interests
Certificate #1
Registered owner - Republic Technologies International, LLC
Schedule III to the
Master Pledge Agreement
INDENTURE COLLATERAL AGENT
United States Trust Company of New York,
as Collateral Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/1626
Schedule IV to the
Master Pledge Agreement
ADDRESSES OF PLEDGORS
Name Address
---- -------
Republic Technologies International, LLC 0000 Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000
Republic Technologies International Holdings, LLC 0000 Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000
RTI Capital Corp. 0000 Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000
Canadian Drawn Steel Company Inc. 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0
Nimishillen & Tuscarawas, LLC 0000 0xx Xxxxxx, X.X., Xxxxxx, Xxxx 00000
Bliss & Xxxxxxxx, LLC 000 Xxxx 000xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
Schedule V to the
Master Pledge Agreement
UCC-1 FINANCING STATEMENT
Name Jurisdiction
Republic Technologies International, LLC -Delaware Secretary of State
-New York Secretary of State
Republic Technologies International Holdings, LLC -Delaware Secretary of State
-New York Secretary of State
RTI Capital Corp. -Delaware Secretary of State
-New York Secretary of State
Canadian Drawn Steel Company Inc. -New York Secretary of State
Nimishillen & Tuscarawas, LLC -Delaware Secretary of State
-New York Secretary of State
Bliss & Xxxxxxxx, LLC -Delaware Secretary of State
-New York Secretary of State
Annex 1 to the
Master Pledge Agreement
SUPPLEMENT NO. , dated as of , to the Master Pledge Agreement dated as of
August ___, 1999 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Master Pledge Agreement"), among Republic Technologies
International, LLC, a Delaware limited liability company (the "Company"), RTI
CAPITAL CORP., a Delaware corporation ("RTI"), REPBULIC TECHNOLOGIES
INTERNATIONAL HOLDINGS, LLC, a Delaware corporation ("Holdings"), each other
guarantor listed on Schedule I hereto (each such subsidiary, together with
Holdings, the Company and RTI, each, a "Pledgor", collectively, the "Pledgors")
and UNITED STATES TRUST COMPANY OF NEW YORK, a bank and trust company organized
under the New York Banking Law, as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as defined in the Master Pledge
Agreement).
R E C I T A L S :
A. Reference is made to (i) the Credit Agreement, dated as of August
__, 1999 (as amended, amended and restated, supplemented or otherwise modified
from time to time, including any refinancing, refunding, replacement or
extension thereof or a portion thereof and whether by the Lenders (as
hereinafter defined) or any other lender or group of lenders, the "Credit
Agreement"), among the Company, the Guarantors party thereto, the financial
institutions party thereto, as lenders (the "Lenders"), BankBoston, N.A., as an
agent for the Lenders (in such capacity, the "Administrative Agent", together
with the Lenders, the "Credit Agreement Parties") and (ii) the Indenture, dated
as of August __, 1999 (as amended or modified from time to time, the
"Indenture"), among United States Trust Company of New York, as trustee (in such
capacity, the "Indenture Trustee"), for the holders of the Senior Notes (as
defined below) from time to time (the "Senior Note Holders"), the Company and
RTI, as issuers (the "Issuers"), and the Guarantors party thereto and (iii) the
Pledge Intercreditor Agreement, dated as of August __, 1999 (as amended or
modified from time to time, the "Pledge Intercreditor Agreement"), among the
Secured Parties and the Collateral Agent and countersigned by the Pledgors.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement, the
Indenture and the other Senior Credit Documents.
C. The Pledgors have entered into the Master Pledge Agreement in
order to induce the Lenders to make Revolving Credit Loans, the Issuing Bank to
issue Letters of Credit and the Senior Note Holders to purchase the Senior
Notes. Pursuant to the Credit Agreement and the Indenture, each Subsidiary that
was not in existence or not such a Subsidiary on the date of the Credit
Agreement is required to enter into the Master Pledge Agreement as a Pledgor at
such time as (a) it becomes a Subsidiary if such Subsidiary owns or possesses
property of a type that would be considered Collateral under the Master Pledge
Agreement or (b) such Subsidiary acquires or possesses property of a type that
would be considered Collateral and. Section 5.19 of the Master Pledge Agreement
provides that such Persons may become Pledgors under the Master Pledge Agreement
by execution and delivery of an instrument in the form of this Supplement. The
undersigned Person (the "New Pledgor") is executing this Supplement in
accordance with the requirements of the Credit Agreement and the Indenture to
become a Pledgor under the Master Pledge Agreement in order to induce the
Lenders to make additional Revolving Credit Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Revolving Credit Loans
previously made, Letters of Credit previously issued and Senior Notes previously
purchased.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 5.19 of the Master Pledge Agreement,
the New Pledgor by its signature below becomes a Pledgor under the Master Pledge
Agreement with the same force and effect as if originally named therein as a
Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of
the Master Pledge Agreement applicable to it as a Pledgor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Pledgor thereunder are true and correct in all material respects on and as of
the date hereof (except to the extent such representations and warranties
expressly relate to an earlier date). In furtherance of the foregoing, the New
Pledgor, as security for the payment and performance in full of the Obligations
(as defined in the Master Pledge Agreement), does hereby create and grant to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, their successors and assigns, a security interest in and lien on all of
the New Pledgor's right, title and interest in and to the Collateral (as defined
in the Master Pledge Agreement) of the New Pledgor. Each reference to a
"Pledgor" in the Master Pledge Agreement shall be deemed to include the New
Pledgor. The Master Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral Agent
and the other Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set forth
on Schedules II-A and II-B, as applicable, attached hereto is a true and correct
schedule of all its Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Master Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Master Pledge Agreement shall not in any way be affected or
impaired. The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 5.01 of the Master Pledge Agreement. All
communications and notices hereunder to the New Pledgor shall be given to it at
the address set forth under its signature hereto, with a copy to the Borrowers
if such New Pledgor is a Subsidiary.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Master Pledge Agreement as of the day and year
first above written.
[NAME OF NEW PLEDGOR]
By: _____________________________
Name:
Title:
Address:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Collateral Agent
By: _____________________________
Name:
Title:
