EXHIBIT 4.13
COMPANY PLEDGE AGREEMENT
COMPANY PLEDGE AGREEMENT, dated as of December 11, 1997, made by RBX
CORPORATION, a Delaware corporation (the "Company"), in favor of STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, as trustee (in such
capacity, the "Trustee") for the holders of the Notes (as hereinafter defined)
(the "Noteholders"), pursuant to the Indenture, dated as of December 11, 1997
(as amended, supplemented or otherwise modified from time to time, the
"Indenture"), among the Company, Xxxxxxxx Manufacturing Company, Inc.,
Xxxxxx-Xxxxx Rubber Custom Mixing Corp., Midwest Rubber Custom Mixing Corp.,
OleTex Inc., Rubatex Corporation, Universal Polymer & Rubber Inc., Universal
Rubber Company and Waltex Corporation, as guarantors (the "Subsidiary
Guarantors"),and the Trustee.
WITNESSETH
WHEREAS, the Company will issue 12% Senior Secured Notes due 2003 in
the aggregate principal amount of $100,000,000 (the "Notes") pursuant to the
Indenture;
WHEREAS, the Company is the legal and beneficial owner of the shares
of Pledged Stock (as hereinafter defined) issued by each of the Issuers (as
hereinafter defined); and
WHEREAS, it is a requirement of the Indenture that the Company shall
have executed and delivered this Pledge Agreement to the Trustee for the
ratable benefit of the Noteholders.
NOW, THEREFORE, in consideration of the premises, the Company hereby
agrees with the Trustee, for the benefit of the Trustee and the Noteholders,
as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Indenture and used herein shall have the meanings given to them
in the Indenture.
(b) The following terms shall have the following meanings:
"Closing Date": the date of the Indenture.
"Code": the Uniform Commercial Code in effect from time to time in
the State of New York.
"Collateral": all of the Company's right, title and interest in and
to the Pledged Stock, the Collateral Account and all Proceeds thereof.
"Collateral Account": the account established by the Trustee at its
Corporate Trust Office pursuant to Section 11 of the Indenture to hold money
Proceeds, maintained under the sole dominion and control of the Trustee,
subject to withdrawal by the Trustee for the account of the Noteholders only
as provided in Section 11 of the Indenture.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Domestic Subsidiary": a subsidiary of the Company substantially
all of whose assets are located in the United States or that conducts
substantially all of its business in the United States.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Issuers": the collective reference to the companies identified on
Schedule 1 attached hereto as the issuers of the Pledged Stock; individually,
an "Issuer."
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property or condition (financial or otherwise)
of the Company and the Subsidiary Guarantors, taken as a whole, (b) the
ability of the Company or any of the Subsidiary Guarantors, to perform their
respective obligations under the Indenture, the Notes, the Subsidiary
Guarantees, the Registration Rights Agreement and the Collateral Documents,
(c) the validity or the enforceability of the Indenture, the Notes, the
Subsidiary Guarantees, the Registration Rights Agreement and the Collateral
Documents or (d) the rights or remedies of the Trustee, for the benefit of the
Trustee and the Noteholders, hereunder or thereunder.
"Obligations": as defined as "Company Obligations" in the
Indenture.
"Pledge Agreement": this Company Pledge Agreement, as the same may
be amended, modified or otherwise supplemented from time to time.
"Pledged Stock": all of the issued and outstanding shares of
capital stock of each Issuer that is a Domestic Subsidiary as set forth on
Schedule 1 hereto and any shares that may be issued in the future by such
Issuers.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Code and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions with respect thereto.
"RBX Parties": the Company, the Subsidiary Guarantors and any new
Subsidiary complying with Section 4.14 of the Indenture; individually, a "RBX
Party."
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination or an
arbitrator or a court of other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property (including the
properties subject to the Mortgages and Deeds of Trust) or to which such
Person or any of its material property is subject.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Pledge Agreement shall refer to this Pledge
Agreement as a whole and not to any particular provision of this Pledge
Agreement, and section and paragraph references are to this Pledge Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge: Grant of Security Interest. As collateral security
for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations, the Company
hereby delivers to the Trustee, for the benefit of the Trustee and the
Noteholders, and their successors and assigns, all of the Company's right,
title and interest to the Pledged Stock listed on Schedule 1 hereto, agrees to
deliver to the Trustee as provided in Section 5 hereof any shares
2
issued in the future by such Issuers, and hereby grants to Trustee, for the
benefit of the Trustee and the Noteholders and their successors and assigns, a
security interest in the Collateral.
3. Stock Powers. Concurrently with the delivery to the Trustee
of each certificate representing one or more shares of Pledged Stock, the
Company shall deliver an undated stock power covering such certificate, duly
executed in blank by the Company with, if the Trustee so requests, signature
guaranteed.
4. Representations and Warranties. The Company represents and
warrants that:
(a) The Company has the corporate power and authority to execute
and deliver, to perform its obligations under, and to grant the security
interest in the Collateral pursuant to, this Pledge Agreement and has taken
all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the security interest in the Collateral pursuant
to, this Pledge Agreement.
(b) This Pledge Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms. Upon
delivery to the Trustee of the stock certificates evidencing the Pledged
Stock, the security interest created by this Pledge Agreement will constitute
a valid, perfected first priority security interest in the Pledged Stock and
the Proceeds thereof (except that, with respect to Proceeds, such security
interest is perfected only to the extent provided by Section 9-306 of the
Code), and, assuming continuous possession thereof by the Trustee, is
enforceable to the extent provided by law against all creditors of the Company
and any Persons purporting to purchase any Collateral from the Company, except
in each case as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this Pledge
Agreement will not violate any provision of any Requirement of Law (including
Regulations G, T, U, or X of the Federal Reserve Board) or Contractual
Obligation of the Company in any respect that, in the aggregate for all such
violations, could reasonably be expected to have a Material Adverse Effect and
will not result in the creation or imposition of any Lien on any of the
properties or assets of the Company pursuant to any Requirement of Law or
Contractual Obligation of the Company, except the security interest created by
this Pledge Agreement.
(d) No consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or creditor
of the Company), is required in connection with the execution, delivery,
performance, validity or enforceability of this Pledge Agreement other than
those which have been duly obtained or made and are in full force and effect
on the Closing Date and except for those the absence of which in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(e) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Company, threatened by or against the Company or against any of its properties
or revenues (1) with respect to this Pledge Agreement or any of the
transactions contemplated hereby or (2) which could reasonably be expected to
have a Material Adverse Effect.
(f) The shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of the capital stock of the Domestic Issuers
and all such shares of Pledged Stock are listed on Schedule 1 hereto.
(g) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
3
(h) The Company is the record and beneficial owner of, and has
good and marketable title to, the Pledged Stock, free of any and all Liens
(other than the Liens in favor of the Chase Manhattan Bank, as collateral
agent, which shall be released on the Closing Date) or options in favor of, or
claims of, any other Person, except the security interest created by this
Pledge Agreement.
5. Covenants. The Company covenants and agrees with the
Trustee and the Noteholders that, from and after the date of this Pledge
Agreement until payment in full or Legal Defeasance of all principal of,
interest on, premium, if any, and Liquidated Damages, if any, with respect to
the Notes and any other Obligations for the payment of money then due and
owing to any Noteholder or the Trustee under the Indenture or any Collateral
Document:
(a) Contemporaneously with the issuance or grant by any Issuer
that is a Domestic Subsidiary to the Company of any stock certificates,
options or rights, Schedule 1 hereto shall be updated to include all such
stock certificates, options or rights; provided that the failure of the
Company or the Trustee to so update Schedule 1 hereto shall not impair the
security interest of the Trustee in such stock certificates, options or
rights, as the case may be.
(b) If the Company shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend of, a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection with
any reorganization), option or rights, whether in addition to, in substitution
of, as a conversion of, or in exchange for any shares of the Pledged Stock, or
otherwise in respect thereof, the Company shall accept the same as the agent
of the Trustee and the Noteholders, hold the same in trust for the Trustee and
the Noteholders and deliver the same forthwith to the Trustee for the benefit
of the Noteholders in the exact form received, duly endorsed by the Company to
the Trustee for the benefit of the Noteholders, if required, together with an
undated stock power covering such certificate duly executed in blank by the
Company and with signature guaranteed, to be held by the Trustee for the
benefit of the Noteholders, subject to the terms hereof, as additional
collateral security for the Obligations.
(c) The Company will not (1) vote to enable, or take any other
action to permit, any Issuer to issue any stock or other equity securities of
any nature or to issue any other securities convertible into or granting the
right to purchase or exchange for any stock or other equity securities of any
nature of any Issuer, except as permitted by the Indenture, (2) except as
permitted by Article 10 of the Indenture, sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral,
except transfers to RBX Parties subject to the pledge hereunder, or (3) except
as permitted by Section 4.11 of the Indenture, create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Collateral, or any interest therein, except for the security
interests created by this Pledge Agreement.
(d) The Company shall maintain the security interest created by
this Pledge Agreement as a perfected security interest and shall defend such
security interest against claims and demands of all Persons whomsoever. At any
time and from time to time, upon the written request of the Trustee, and at
the sole expense of the Company, the Company will promptly and duly, execute
and deliver such further instruments and documents and take such further
actions as the Trustee may reasonably request for the purposes of obtaining or
preserving the full benefits of this Pledge Agreement and of the rights and
powers herein granted. If any amount payable under or in connection with any
of the Collateral shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall be
immediately delivered to the Trustee, duly endorsed in a manner satisfactory
to the Trustee, to be held as Collateral pursuant to this Pledge Agreement.
4
(e) The Company shall pay, and save the Trustee and the
Noteholders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Pledge Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing (1) and the Trustee has given notice to
the Company directing the Company to deposit the same in the Collateral
Account, the Company shall be permitted to receive all cash dividends, to the
extent permitted in the Indenture, in respect of the Pledged Stock, and (2)
unless the Trustee shall have given notice to the Company of the Trustee's
intent to exercise its rights pursuant to Section 7(b)(2) below, the Company
shall be permitted to exercise all voting and corporate rights with respect to
the Pledged Stock.
7. Rights of the Noteholders and the Trustee. If an Event of
Default shall occur and be continuing, (1) the Trustee shall have the right,
upon giving the notice described in Section 6(1) above, to receive any and all
cash dividends paid in respect of the Pledged Stock and make application
thereof to the Obligations in such order as the Trustee may determine, and (2)
if the Trustee shall give notice to the Company of its intent to exercise such
rights, all shares of the Pledged Stock shall be registered in the name of the
Trustee or its nominee for the benefit of the Noteholders, and the Trustee or
its nominee may thereafter exercise (A) all voting, corporate and other rights
pertaining to such shares of the Pledged Stock at any meeting of stockholders
of any Issuer or otherwise and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
shares of the Pledged Stock as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any
and all of the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by the Company or the Trustee of any right,
privilege or option pertaining to such shares of the Pledged Stock, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Trustee may
determine), all without liability except to account for property actually
received by it and except for its gross negligence or willful misconduct, but
the Trustee shall have no duty to the Company to exercise any such right,
privilege or option and shall not be responsible for any failure to do so or
delay in so doing.
8. Remedies. (a) If an Event of Default shall have occurred
and be continuing, at any time at the Trustee's election, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision
of the Indenture, the Notes, Subsidiary Guarantees, the Registration Rights
Agreement and any Collateral Document pursuant to Article 6 of the Indenture.
(b) If an Event of Default shall have occurred and be
continuing, the Trustee, on behalf of the Noteholders, may exercise, in
addition to all other rights and remedies granted in this Pledge Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, the Trustee, without demand
of performance or other demand, presentment, protest, advertisement or notice
of any kind (except any notice required by law referred to below) to or upon
the Company or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or
any part thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Trustee or any Noteholder or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Trustee or any Noteholder shall
have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such
5
private sale or sales, to purchase the whole or any part of the Collateral so
sold, free of any right or equity of redemption in the Company, which right or
equity is hereby waived or released. The Trustee shall apply any Proceeds from
time to time held by it and the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Trustee and the Noteholders hereunder,
including without limitation, reasonable attorneys' fees and disbursements of
counsel to the Trustee, to the payment in whole or in part of the Obligations,
in such order as the Trustee may elect, and only after such application and
after the payment by the Trustee of any other amount required by any provision
of law, including, without limitation, Section 9-504(1)(c) of the Code, need
the Trustee account for the surplus, if any, to the Company. To the extent
permitted by applicable law, the Company waives all claims, damages and
demands it may acquire against the Trustee or any Noteholder arising out of
the exercise by them of any rights hereunder. If any notice of a proposed sale
or other disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least 10 days before such sale or
other disposition in accordance with Section 13.02 of the Indenture. The
Company shall remain liable for any deficiency if the proceeds of any sale or
other disposition of Collateral are insufficient to pay the Obligations and
the fees and disbursements of any attorneys employed by the Trustee or any
Noteholder to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Trustee
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 8(b) hereof, and if in the opinion of the Trustee it is
necessary or advisable to have the Pledged Stock, or that portion thereof to
be sold, registered under the provisions of the Securities Act, the Company
will cause the Issuer to (1) execute and deliver, and cause the directors and
officers of the Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Trustee, necessary or advisable to register the Pledged Stock,
or that portion thereof to be sold, under the provisions of the Securities
Act, (2) use its best efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of one year
from the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (3) make all amendments thereto and/or to the
related prospectus which, in the opinion of the Trustee, are necessary or
advisable, all in conformity with the requirements of the Securities Act and
the rules and regulations of the SEC applicable thereto. The Company agrees to
cause the Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Trustee shall designate and 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.
(b) The Company recognizes that the Trustee may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Company acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public sale
and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Trustee shall be under no obligation to delay a sale of any of the Pledged
Stock for the period of time necessary to permit the Issuer to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if the Issuer would agree to do so.
(c) The Company further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Company further agrees that a breach of any of the
covenants contained in this Section 9 will cause irreparable injury to the
Trustee and the Noteholders, that the Trustee and the Noteholders have no
adequate
6
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 9 shall be specifically enforceable
against the Company, and the Company hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred and is then
continuing under the Indenture.
10. Irrevocable Authorization and Instruction to the Issuer.
The Company hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Trustee in writing that (a) states that an
Event of Default has occurred and is then continuing and (b) is otherwise in
accordance with the terms of this Pledge Agreement and (b) is otherwise in
accordance with the terms of this Pledge Agreement, without any other or
further instructions from the Company, and the Company agrees that each Issuer
shall be fully protected in so complying.
11. Trustee's Appointment as Attorney-in-Fact. (a) Upon the
occurrence and during the continuance of any Event of Default the Company
hereby irrevocably constitutes and appoints the Trustee and any officer or
agent of the Trustee, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Company and in the name of the Company or in the Trustee's own
name, from time to time in the Trustee's discretion, for the purpose of
carrying out the terms of this Pledge Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Pledge
Agreement including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) The Company hereby ratifies all that said attorneys-in-fact
shall lawfully do or cause to be done pursuant to the power of attorney
granted in paragraph 11(a). All powers, authorizations and agencies contained
in this Pledge Agreement are coupled with an interest and are irrevocable
until payment in full of the Notes and the other Obligations then due and
owing, the termination of this Pledge Agreement and the release of the
security interests created hereby.
12. Duty of Trustee. The Trustee's sole duty with respect to
the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Code or otherwise, shall be to deal
with it in the same manner and with the same care as the Trustee deals with
similar property for its own account. Neither the Trustee, any Noteholder nor
any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so, except where such failure or delay
results from their gross negligence or willful misconduct, or shall be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of the Company or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on the
Trustee and the Noteholders hereunder are solely to protect the Trustee's and
the Noteholders' interests in the Collateral and shall not impose any duty
upon the Trustee or any Noteholder to exercise any such powers. The Trustee
and the Noteholders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any
of their officers, directors, employees or agents shall be responsible to the
Company for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
13. Execution of Financing Statements, Etc. Pursuant to the
Code, the Company will file financing statements with respect to the
Collateral in such form and in such filing offices as the Trustee reasonably
determines appropriate to perfect the security interests of the Trustee under
this Pledge Agreement and will execute, deliver and perform such other
documents and acts as may be necessary to perfect the security interests of
the Trustee under this Pledge Agreement. A carbon, photographic or other
reproduction of this Pledge Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
7
14. Authority of Trustee. The Company acknowledges that the rights
and responsibilities of the Trustee under this Pledge Agreement with respect
to any action taken the Trustee or the exercise or non-exercise by the Trustee
of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Pledge Agreement
shall, as between the Trustee and the Noteholders, be governed by the
Indenture, but, as between the Trustee and the Company, the Trustee shall be
conclusively presumed to be acting as agent for the Noteholders with full and
valid authority so to act or refrain from acting, and neither the Company nor
any Issuer shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Trustee or the Company to be effective shall be in writing (or by telex, fax
or similar electronic transfer confirmed in writing) and shall be deemed to
have been duly given or made (1) when delivered by hand or (2) if given by
mail, three days after deposited in the mails by certified mail, return
receipt requested, postage prepaid or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as
follows:
(a) if to the Trustee, at its address or transmission number for
notices provided in Section 13.02 of the Indenture; and
(b) if to the Company, at its address or transmission number for
notices provided in Section 13.02 of the Indenture.
The Trustee and the Company may change their addresses and
transmission numbers for notices by notice in the manner provided in this
Section.
16. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Pledge Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Company and the Trustee, provided that any provision of this
Pledge Agreement may be waived by the Trustee and the Noteholders in a letter
or agreement executed by the Trustee or by telex or facsimile transmission
from the Trustee.
(b) Neither the Trustee nor any Noteholder shall by any act
(except by a written instrument pursuant to paragraph 17(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Trustee or any Noteholder, any
right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Trustee or any Noteholder of any
right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which the Trustee or such Noteholder would otherwise
have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights
or remedies provided by law.
18. Release of Collateral and Termination. (a) Upon the
payment in full or Legal Defeasance of all principal of, interest on, premium,
if any, and Liquidated Damages, if any, with respect to
8
the Notes and any other Obligations for the payment of money then due and
owing to any Noteholder or the Trustee under the Indenture and the Collateral
Documents, the Collateral shall be released from the Liens created hereby, and
this Pledge Agreement and all obligations (other than those expressly stated
to survive such termination) of the Trustee and the Company hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Company. Upon
request of the Company following any such termination, the Trustee shall
deliver (at the sole cost and expense of the Company) to the Company any
Collateral held by the Trustee hereunder, and execute and deliver (at the sole
cost and expense of the Company) to the Company such documents as the Company
shall reasonably request to evidence, or give further effect to, such
termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Company in a transaction permitted by the
Indenture, then the Trustee shall execute and deliver to the Company (at the
sole cost and expense of the Company) all releases, termination statements or
other documents reasonably necessary for the release of the Liens created
hereby on such Collateral.
19. Section Headings. The section headings used in this
Pledge Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
20. Successors and Assigns. This Pledge Agreement shall be
binding upon the successors and assigns of the Company and shall inure to the
benefit of the Trustee and the Noteholders and their successors and assigns.
Each Pledgor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of Collateral are insufficient to pay the
Obligations and the fee and disbursements of any attorneys employed by the
Trustee or any Noteholder to collect such deficiency.
21. Submission To Jurisdiction; Waivers.
(a) The Company hereby irrevocably and unconditionally:
(1) submits for itself and its property in any legal
action or proceeding relating to this Pledge Agreement and the other
Collateral Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(2) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same:
(3) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in Section 13.02 of
the Indenture or at such other address of which the Trustee shall have
been notified pursuant thereto;
(4) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
Each of the Company, the Trustee and the Noteholders hereby
unconditionally and irrevocably waive, to the maximum extent not prohibited by
law, any right they may have to claim or recover
9
in any legal action or proceeding referred to in this Section 21 any special,
exemplary, punitive or consequential damages.
22. Acknowledgments. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Pledge Agreement and the other Collateral Documents to
which it is a party;
(b) neither the Trustee nor any Noteholder has any fiduciary
relationship with or duty to it or any other RBX Party arising out of or in
connection with this Pledge Agreement or any of the other Collateral
Documents, and the relationship between the Trustee and Noteholders, on one
hand, and the RBX Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Collateral Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Noteholders, the Trustee or RBX Parties.
23. WAIVER OF JURY TRIAL. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS PLEDGE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF.
26. Contradictory Provisions. In the event any one or more of
the provisions of this Pledge Agreement shall be found in a final judgment 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, to
contradict or otherwise limit any provision in the Indenture, the provision in
the Indenture shall control.
27. Indemnity
(a) The Company agrees to pay, and to save the Trustee and the
Noteholders harmless from, any and all liabilities, costs and expenses
(including, without limitation, legal fees and expenses) (1) with respect to,
or resulting from any delay in paying, any and all excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral, (2) with respect to, or resulting from, any delay in complying
with any Requirement of Law applicable to any of the Collateral and (3) in
connection with any of the transactions contemplated by this Pledge
Agreement. In any suit, proceeding or action brought by the Trustee or any
Noteholder for any sum owing thereunder, the Company will save, indemnify and
keep the Trustee and such Noteholder harmless from and against all expense,
loss or damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction or liability whatsoever of the account debtor or
obligor thereunder, arising out of a material breach by the Company of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or its
successors from the Company. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with
10
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
11
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
RBX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
S-1
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned hereby acknowledges receipt of a copy of the
Company Pledge Agreement, dated as of December 11, 1997 (the "Pledge
Agreement") made by RBX Corporation for the benefit of State Street Bank and
Trust Company, as Trustee. The undersigned agrees for the benefit of the
Trustee and the Noteholders as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms are applicable
to it.
2. The undersigned will notify the Trustee promptly in writing
of the occurrence of any of the events described in paragraph 5(b) of the
Pledge Agreement.
3. The terms of paragraph 9(c) of the Pledge Agreement shall
apply to it, mutatis mutandis, with respect to all actions that may be
required of it under or pursuant to or arising out of Section 9 of the Pledge
Agreement.
XXXXXXXX MANUFACTURING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXXX-XXXXX RUBBER CUSTOM MIXING CORP.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
MIDWEST RUBBER CUSTOM MIXING CORP.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
S-2
OLETEX INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
RUBATEX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
UNIVERSAL POLYMER & RUBBER INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
UNIVERSAL RUBBER COMPANY
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WALTEX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
S-3
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
No. of
Issuer Class of Stock Stock Certificate No. Shares
------ -------------- --------------------- ------
Xxxxxxxx Manufacturing Company, Inc. Common 2 1,000
Xxxxxx-Xxxxx Rubber Custom Mixing Corp. Common 2 1,000
OleTex Inc. Common 2 1,000
Midwest Rubber Custom Mixing Corp. Common 2 1,000
Rubatex Corporation Common 2 1,000
Universal Polymer & Rubber Inc. Common 3 1,000
Universal Rubber Company Common 2 1,000
Waltex Corporation Common 2 1,000
S-4
