EXHIBIT 4.5
SECURITY AGREEMENT
SECURITY AGREEMENT (the "Agreement"), dated as of August 13, 1999,
made by REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC, a Delaware limited liability
company having an office at 0000 Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000-0000
("Republic Technologies International"), RTI CAPITAL CORP., a Delaware
corporation having an office at 0000 Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000-0000
("RTI Capital"; together with Republic Technologies International, the
"Issuers"), and each of the Guarantors listed on the signature pages hereto or
from time to time party hereto by execution of a joinder agreement
(collectively, the "Guarantors"), as pledgors, assignors and debtors (the
Issuers, together with the Guarantors, in such capacities and together with any
successors in such capacities, the "Pledgors", and each, a "Pledgor") in favor
of UNITED STATES TRUST COMPANY OF NEW YORK, a bank and trust company organized,
validly existing and in good standing under the New York Banking Law, having an
office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as trustee and
collateral agent pursuant to the Indenture (as hereinafter defined), as pledgee,
assignee and secured party (in such capacity and together with any successors
and assigns in such capacities, the "Collateral Agent").
RECITALS:
A. The Issuers, the Guarantors, and the Collateral Agent have, in
connection with the execution and delivery of this Agreement, entered into a
certain indenture (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Indenture"), dated as of August 13, 1999,
pursuant to which the Issuers are issuing their 13 3/4% senior secured notes due
2009 (the "Senior Secured Notes") in the aggregate principal amount of
$425,000,000. It is contemplated that the Issuers may, after the date hereof,
issue exchange notes pursuant to the Indenture (the "Exchange Notes"; together
with the Senior Secured Notes, the "Notes").
B. Each Pledgor is or will be the legal and/or beneficial owner of
the Pledged Collateral (as hereinafter defined) to be pledged by it hereunder.
C. This Agreement is given by each Pledgor in favor of the
Collateral Agent for its benefit and the benefit of the holders of the Notes
(collectively, the "Secured Parties") to secure the payment and performance of
the Secured Obligations (as hereinafter defined).
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgors and the Collateral Agent hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein but not
otherwise defined shall have the meanings assigned to such terms in the
Indenture. The following terms shall have the following meanings. Such
definitions shall be applicable equally to the singular and plural forms of the
terms defined.
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"Accounts" shall mean, collectively, all "accounts" as such term is
defined in the UCC, and in any event shall include, without limitation, (i) any
and all accounts, accounts receivable and chattel paper and (ii) all general
intangibles, documents and proceeds relating to any of the foregoing. As used in
this definition, "general intangibles", "documents" and "proceeds" shall have
the meanings assigned to such terms under the UCC.
"Acquisition Document Rights" shall mean, collectively, all of the
applicable Pledgor's rights, title and interest in, to and under the Acquisition
Documents including, without limitation, (i) all rights and remedies relating to
monetary damages, including indemnification rights and remedies, and claims for
damages or other relief pursuant to or in respect of the Acquisition Documents,
(ii) all rights and remedies relating to monetary damages, including
indemnification rights and remedies, and claims for monetary damages under or in
respect of the agreements, documents and instruments referred to in the
Acquisition Documents or related thereto and (iii) all proceeds, collections,
recoveries and rights of subrogation with respect to the foregoing.
"Acquisition Documents" shall mean, collectively, the following
agreements, each as amended, amended and restated, supplemented, extended,
renewed, replaced or otherwise modified from time to time: (i) that certain
contribution agreement dated as of December 22, 1993 and amended by amendment
no. 1 to contribution agreement, dated as of January __, 1994, amendment no. 2
to contribution agreement, dated as of January 7, 1994, amendment no. 3 to
contribution agreement, dated as of June 7, 1994, amendment no. 4 to
contribution agreement, dated as of June 29, 1994, and amendment no. 5 to
contribution agreement, dated as of September 21, 1994 (the "Contribution
Agreement") by and between Bethlehem Steel Corporation ("Bethlehem") and Bar
Technologies Inc. ("BarTech"), and all documents, agreements and other
instruments then or at any time thereafter executed and/or delivered in
connection therewith or related thereto, (ii) that certain amended and restated
agreement and plan of merger, dated as of October 18, 1995, by and among
BarTech, B&L Acquisition Corporation and Bliss & Xxxxxxxx Industries Inc., and
all documents, agreements and other instruments executed and/or delivered in
connection therewith or related thereto, and (iii) that certain master
restructuring agreement among RES Holding, BarTech, Republic Engineered Steels,
Inc., USX RTI Holdings, Inc., Kobe RTI Holdings, Inc. and USS/Kobe Steel
Company, and all documents, agreements and other instruments executed and/or
delivered in connection therewith or related thereto.
"CAST-ROLL Facility" means (i) all now owned or after acquired real
property and Equipment of Republic Technologies International used in connection
with the facility commonly known as the "CAST-ROLL Facility" and located at 0000
Xxxxxxxxxx Xxxx, X.X., Xxxxxx, Xxxx, and used primarily in connection with
Republic Technologies International's business and operations at such location,
(ii) all existing buildings, structures and other improvements located or
erected thereon, (iii) all fixtures attached thereto, (iv) all permits,
licenses, franchises, certificates, consents, approvals and authorizations
furnished in respect of the real property and improvements located thereon
including, without limitation, building permits, certificates of occupancy and
environmental certificates, (v) all leases, licenses and occupancy and
concession agreements in respect of the real property and improvements located
thereon and all rents, receipts, fees and other amounts payable thereunder, and
(vi) all general intangibles, documents and proceeds (as each such term is
defined in the UCC) relating to the foregoing.
"Collateral Account Funds" shall mean, collectively, all of the
funds from time to time on deposit in the Collateral Accounts held by Collateral
Agent on behalf of the Secured Parties; all investments of such funds
(including, without limitation, Cash Equivalents and Trust Moneys) and all
certificates and instruments from time to time representing or evidencing such
investments; all notes, certificates of deposit, checks and other instruments
from time to time hereafter delivered to or otherwise possessed by the
Collateral Agent for or on behalf of any applicable Pledgor in substitution for,
or in addition to, any or all of the Pledged Collateral; and all
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interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the items constituting Pledged Collateral.
"Collateral Accounts" shall mean the collateral accounts established
and maintained by the Collateral Agent on behalf of the Secured Parties in
accordance with the provisions of the Intercreditor Agreement.
"Documents" shall mean, collectively, all "documents", as such term
is defined in the UCC, relating to any of the Pledged Collateral or the New Bar
Mill and shall also include, without limitation, any and all lists, books,
records, ledgers, printouts, computer programs, computer disks or tape files,
computer runs and other computer prepared information, files (whether in printed
form or stored electronically), tapes and other papers or materials containing
information relating to any of the Pledged Collateral or the New Bar Mill.
"Equipment" shall mean, collectively, all "equipment", as such term
is defined in the UCC, of the applicable Pledgor, and shall specifically
include, without limitation, (i) all machinery, facilities, installations,
apparatus, equipment, office machinery, electronic data processing equipment,
computers and computer hardware and software (whether owned or licensed), all
indoor or outdoor furniture, tools, materials, automotive equipment, motor
vehicles, manufacturing, storage and handling equipment, overhead cranes,
cutting and bending machines and other equipment for the fabrication of steel
bars, rods and wire products, furnaces, electric arc furnaces, ladle arc
furnaces, bloom reheating furnaces, vacuum degassers, billet xxxxx, reheat
furnaces, rolling xxxxx, blooming xxxxx, cold finishing xxxxx, hot rolled bar
xxxxx, conveyors, coilers, cooling beds, continuous casters, molds, automated
process control equipment and all other equipment of any kind or nature and
owned by the applicable Pledgor or in which the applicable Pledgor may have any
interest (but only to the extent of such interest), (ii) all modifications,
renewals, improvements, alterations, repairs, substitutions, attachments,
additions, accessions and other property now or hereafter affixed thereto or
used in connection therewith and (iii) all replacements and all parts therefor.
In no event shall "Equipment" include any Excluded Collateral.
"Excluded Collateral" shall mean, collectively, (i) Inventory, (ii)
Accounts, (iii) the Pledged Interests, (iv) real property, fixtures, machinery
and equipment located in Cartersville, Bartow County, Georgia and all general
intangibles, documents and proceeds (as each such term is defined in the UCC) to
the extent relating thereto, (v) the CAST-ROLL Facility, (vi) all after-acquired
real property, fixtures, machinery and equipment other than the New Bar Mill and
the New Bar Mill Equipment and (vii) Intellectual Property.
"Intangibles" shall mean, collectively, all "general intangibles",
as such term is defined in the UCC, relating to any of the Pledged Collateral or
the New Bar Mill and, in any event, shall include, without limitation, any and
all Supply Contracts, contract rights, goodwill (other than goodwill relating to
intellectual property), descriptions, name plates, claims, choses-in-action,
causes of action, catalogs, confidential information, consulting agreements,
engineering contracts, and such other assets which relate to the goodwill (other
than goodwill relating to intellectual property) of the business of the
applicable Pledgor and rights to refund or indemnification to the extent the
foregoing relate to Pledged Collateral or the New Bar Mill, deposits and deposit
accounts, letters of credit, documents, instruments, chattel paper, bankers'
acceptances and guarantees, and income tax refunds to the extent relating to
Pledged Collateral or the New Bar Mill, claims for tax or other refunds against
any city, county or state or federal government, or any agency or authority or
other subdivision thereof relating to Pledged Collateral, corporate or other
business records relating to Pledged Collateral or the New Bar Mill and all
other general intangibles of every kind and description relating to Pledged
Collateral or the New Bar Mill.
"Intellectual Property" shall mean (i) all patents, copyrights,
trademarks or licenses of any Pledgor, (ii) all rights and privileges relating
thereto and (iii) all general intangibles, documents and proceeds
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relating to the foregoing. As used in this definition, "general intangibles",
"documents" and "proceeds" shall have the meaning assigned to such terms under
the UCC.
"Intercreditor Agreement" means that certain amended and restated
intercreditor and subordination agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time), dated as of August 13,
1999, by and among the Collateral Agent, United States Trust Company of New
York, as Trustee, the Pennsylvania Lenders (as defined therein), BankBoston,
N.A., as Agent (as defined therein), those parties which in the future become
Government Lenders and/or Notes Refinancing Lenders and/or New Bar Mill Lenders
(each as defined therein), the Pledgors, and each of the other parties from time
to time made party thereto.
"Inventory" shall mean, collectively, (i) all "inventory" (as such
term is defined in the UCC) of the applicable Pledgor wherever located and, in
any event shall include, without limitation, all raw materials, work in progress
and finished goods and (ii) all general intangibles, documents and proceeds
relating to any of the foregoing. As used in this definition, "general
intangibles", "documents" and "proceeds" shall have the meanings assigned to
such terms under the UCC.
"Miscellaneous Collateral" shall mean all existing property and
assets of the applicable Pledgor, whether tangible or intangible, fixed or
liquid, other than (i) Pledged Collateral (excluding Pledged Collateral of the
type described in clause (vii) of Section 2 of this Agreement) and (ii) Excluded
Collateral.
"New Bar Mill" means the business and operations of the Pledgors at
the new large size bar mill and related quality verification line and shipping
center and heat treatment center to be acquired and/or constructed by the
Pledgors.
"New Bar Mill Equipment" means all now owned or after-acquired
Equipment located at and used primarily in connection with the New Bar Mill.
"Pledged Collateral" shall have the meaning assigned to such term
pursuant to Section 2 of this Agreement.
"Pledged Interests" shall have the meaning assigned to such term
under the Intercreditor Agreement.
"Prior Liens" shall mean, collectively, the Liens described in
Schedule A annexed hereto.
"Proceeds" shall have the meaning assigned to the term "proceeds"
under the UCC and, in any event, shall include, without limitation, any and all
(i) proceeds of any insurance (except payments made to a Person that is not a
party to this Agreement), indemnity, warranty, guarantee or claim payable to the
Collateral Agent or to any Pledgor from time to time with respect to any of the
Pledged Collateral, (ii) payments (in any form whatsoever) made or due and
payable to any Pledgor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Pledged Collateral by any governmental authority (or any person acting under
color of a governmental authority), (iii) products of the Pledged Collateral and
(iv) other amounts from time to time paid or payable under or in connection with
any of the Pledged Collateral.
"Secured Obligations" shall have the meaning assigned to such term
pursuant to Section 3 of this Agreement.
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"Supply Contracts" shall mean, collectively, any and all supply,
sale, service, performance and equipment or property lease contracts, agreements
and grants (whether written or oral or third party or intercompany), and any
other document (whether written or oral) between such Pledgor and third parties,
and all assignments, amendments, restatements, supplements, extensions,
renewals, replacements or modifications thereof, including, without limitation,
(i) that certain Round Supply Agreement, dated as of August __, 1999, among
Republic Technologies International, Newtube, USX Corporation ("USX") and U.S.
Steel Group, (ii) that certain Coke Supply Agreement, dated as of August __,
1999, between Republic Technologies International and U.S. Steel Group, (iii)
that certain Pellet Supply Agreement, dated as of August __, 1999, between
Republic Technologies International and U.S. Steel Group, (iv) that certain
Transition Services Agreement and certain related agreements between Republic
Technologies International and USX, (v) that certain Tubular Utilities agreement
and certain related agreements between Republic Technologies International and
Newtube and (vi) that certain Technology Transfer Agreement among Republic
Technologies International and Kobe Steel, Ltd. and one of its affiliates.
"UCC" shall mean the Uniform Commercial Code as in effect in any
applicable jurisdiction.
SECTION 2. Pledge. As collateral security for the payment and
performance when due of all the Secured Obligations, each Pledgor hereby
pledges, assigns, transfers and grants to the Collateral Agent for its benefit
and the benefit of the Secured Parties, a security interest in and to and pledge
of all of the right, title and interest of such Pledgor in, to and under the
following property, now existing or, in the case of only the property described
in (vii) below and any other Pledged Collateral relating to the New Bar Mill
hereafter arising or acquired from time to time (collectively, the "Pledged
Collateral"):
(i) all Equipment;
(ii) all Intangibles;
(iii) all Documents;
(iv) the Acquisition Document Rights;
(v) the Collateral Accounts and all Collateral Account
Funds;
(vi) all Miscellaneous Collateral;
(vii) New Bar Mill Equipment; and
(viii) all Proceeds of any of the foregoing.
Notwithstanding the foregoing, the Pledged Collateral shall not
include existing property or assets of Pledgor in accordance with clause (q) of
the definition of Permitted Liens; provided, however, that at such time as such
property or asset is no longer subject to such Lien or security interest, such
property or asset shall (without any act or delivery by any Person) constitute
Pledged Collateral hereunder.
SECTION 3. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. ss. 362(a)), of (i) all obligations of the Issuers now or hereafter
existing under or in respect of the Indenture and the Notes (including, without
limitation, the obligations of the Issuers to pay principal of, premium, if any,
and interest on the Notes when due and payable) and all other charges, fees,
expenses, commissions, reimbursements, premiums, indemnities and all other
amounts due or to become due under or in connection with the Indenture and the
Notes, (ii) all obligations of the Guarantors now or hereafter existing
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under or in respect of the Indenture and the Notes (including, without
limitation, the obligations of each Guarantor to pay principal of, premium, if
any, and interest on the Notes when due and payable) and all other charges,
fees, expenses, commissions, reimbursements, premiums, indemnities and all other
amounts due or to become due under or in connection with the Indentures and the
Notes and (iii) without duplication of the amounts described in clauses (i) and
(ii), all obligations, indebtedness and liabilities of the Pledgors now existing
or hereafter arising under or in respect of this Agreement or any other Security
Document, including, without limitation, with respect to all charges, fees,
expenses, commissions, reimbursements, premiums, indemnities and other payments
related to or in respect of the obligations contained in this Agreement or any
other Security Document (the obligations described in clauses (i), (ii) and
(iii) of this Section 3, collectively, the "Secured Obligations").
SECTION 4. No Release. Nothing set forth in this Agreement shall
relieve any Pledgor from the performance of any term, covenant, condition or
agreement on such Pledgor's part to be performed or observed under or in respect
of any of the Pledged Collateral or from any liability to any Person under or in
respect of any Pledged Collateral or shall impose any obligation on the
Collateral Agent or any other Secured Party to perform or observe any such term,
covenant, condition or agreement on such Pledgor's part to be so performed or
observed or shall impose any liability on the Collateral Agent or any other
Secured Party for any act or omission on the part of such Pledgor relating
thereto or for any breach of any representation or warranty on the part of such
Pledgor contained in this Agreement, or under or in respect of the Pledged
Collateral or made in connection herewith or therewith. The obligations of each
Pledgor contained in this Section 4 shall survive the termination of this
Agreement and the discharge of such Pledgor's other obligations under this
Agreement, the Indenture, the Notes and the other Security Documents.
SECTION 5. Supplements; Further Assurances. Each Pledgor agrees
that, at any time and from time to time, it shall execute and file and refile
such financing statements, continuation statements, amendments thereto and other
similar documents (including, without limitation, this Agreement) in such
offices required or permitted by law in order to perfect, protect and preserve
the rights and interests granted to the Collateral Agent hereunder (including,
without limitation, any such action with respect to the Pledged Collateral
relating to the New Bar Mill). Without limiting each Pledgor's obligation to
make such filings, each Pledgor hereby authorizes the Collateral Agent and
appoints the Collateral Agent as its attorney-in-fact to file such financing
statements, continuation statements, amendments thereto and other similar
documents without the signature of such Pledgor to the fullest extent permitted
by applicable law, and such Pledgor agrees to do such further acts and things,
and to execute and deliver to the Collateral Agent such additional assignments,
agreements, powers and instruments, as the Collateral Agent may require to carry
into effect the purposes of this Agreement or to assure and confirm unto the
Collateral Agent its rights, powers and remedies hereunder. All of the foregoing
shall be at the sole cost and expense of each Pledgor.
SECTION 6. Representations, Warranties and Covenants. Each Pledgor
represents, warrants and covenants as follows:
(a) Necessary Filings. The filings, registrations and recordings
described in Schedule B constitute the only filings, registrations and
recordings necessary or appropriate to create, preserve, protect and perfect the
security interest granted by such Pledgor to the Collateral Agent pursuant to
this Agreement in respect of the Pledged Collateral. All such filings,
registrations and recordings shall be delivered to the Collateral Agent on or
prior to the date hereof or as soon as thereafter as reasonably practicable.
Upon the proper filing of all such
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filings, registrations and recordings, the Lien granted to the Collateral Agent
for the benefit of the Secured Parties pursuant to this Agreement will
constitute a perfected Lien superior and prior to the rights of all other
Persons therein other than the holders of (i) Prior Liens and (ii) Liens of the
type described in clause (v) of Section 8 of this Agreement to the extent
permitted thereby to be superior to the Lien granted to the Collateral Agent
hereunder.
(b) No Liens. Each Pledgor is as of the date hereof, and, as to the
Pledged Collateral acquired by it from time to time after the date hereof, each
Pledgor will be, the owner of all the Pledged Collateral pledged by it hereunder
free from any Lien on a first priority basis or other right, title or interest
of any Person other than (i) Prior Liens, (ii) the Lien granted to the
Collateral Agent pursuant to this Agreement, (iii) as to each category or type
of Pledged Collateral, the Liens described in Section 4.2 of the Intercreditor
Agreement, which are subject and subordinate to the Lien granted to the
Collateral Agent pursuant to this Agreement, in such category or type of Pledged
Collateral and refinancings thereof to the extent permitted under the Indenture
and the Intercreditor Agreement (collectively, the "Subordinate Intercreditor
Liens") and (iv) the other Liens permitted pursuant to Section 8 of this
Agreement. Each Pledgor shall defend the Pledged Collateral against all claims
and demands of all Persons at any time claiming any interest therein adverse to
the Collateral Agent or any other Secured Party.
(c) Other Financing Statements. There is no filed financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) covering or purporting to cover any interest of any kind in
the Pledged Collateral other than the financing statements or similar statements
or instruments filed in respect of (i) Prior Liens, (ii) this Agreement, (iii)
Subordinate Intercreditor Liens and (iv) the other Liens permitted pursuant to
Section 8 of this Agreement. So long as the Secured Obligations remain unpaid,
no Pledgor shall execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) or statements relating to the Pledged Collateral,
except financing statements filed or to be filed in respect of (i) Prior Liens,
(ii) this Agreement, (iii) Subordinate Intercreditor Liens and (iv) the other
Liens permitted pursuant to Section 8 of this Agreement.
(d) Chief Executive Office; Change of Name. The chief executive
office of such Pledgor is located at the address indicated next to its name in
Schedule C annexed hereto. Such Pledgor shall not move its chief executive
office, except to such new location as such Pledgor may establish in accordance
with the last sentence of this subsection 6(d). Such Pledgor shall not establish
a new location for its chief executive office nor shall it change its name until
(i) 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 (ii) 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 Pledged Collateral intended to be granted hereby, including,
without limitation, obtaining waivers of landlord's or warehouseman's liens with
respect to such new location.
(e) Location of Equipment. All Equipment held on the date hereof by
such Pledgor is located at the locations shown in Schedule D annexed hereto. All
Equipment now held or, with respect to the New Bar Mill Equipment, subsequently
acquired, shall be kept at one or more of the locations shown in Schedule D
annexed hereto, or such new location as such Pledgor may establish if (i) it
shall have given to the Collateral Agent at least thirty (30) days' prior
written notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the Collateral
Agent may reasonably request, and (ii) with respect to such new location, 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 Pledged
Collateral intended to be granted hereby, including, without
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limitation, using commercially reasonable efforts to obtain waivers of
landlord's or warehouseman's liens with respect to such new location.
(f) Authorization; Enforceability. Such Pledgor has the requisite
organizational power, authority and legal right to pledge and grant a security
interest in all the Pledged Collateral pledged by it pursuant to this Agreement,
and this Agreement constitutes the legal, valid and binding obligation of such
Pledgor, enforceable against such Pledgor in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally or by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(g) No Consents. Except for (i) the filings, registrations and
recordings contemplated in subsection 6(a) and (ii) those consents,
authorizations, approvals or other actions, notices or filings which have been
previously taken, obtained or made, no consent of any party (including, without
limitation, equityholders or creditors of such Pledgor) and no consent,
authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required either
(A) for the pledge by such Pledgor of the Pledged Collateral pledged by it
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by such Pledgor, (B) except as may be provided in the Intercreditor
Agreement, for the exercise by the Collateral Agent of the rights provided for
in this Agreement or (C) except as may be provided in the Intercreditor
Agreement, for the exercise by the Collateral Agent of the remedies in respect
of the Pledged Collateral pursuant to this Agreement.
(h) Pledged Collateral. All information set forth herein (including,
without limitation, the information set forth in the Schedules annexed hereto)
relating to the Pledged Collateral is accurate and complete in all material
respects.
(i) Acquisition Documents. Such Pledgor shall perform and comply
with the terms and conditions of all Acquisition Documents. Such Pledgor shall
not without the consent of the Collateral Agent (i) cancel or terminate any of
the Acquisition Documents or consent to or accept any cancellation or
termination thereof, (ii) amend, supplement or otherwise modify any of the
Acquisition Documents in any material respect (in each case as in effect on the
date hereof), (iii) waive any default under or breach of any of the Acquisition
Documents or waive, fail to enforce, forgive or release any right, interest, or
entitlement of any kind, howsoever arising, under or in respect of such
Acquisition Documents or, vary or agree to the variation of any of the
provisions of any of such Acquisition Documents or of the performance of any
other Person under any of such Acquisition Documents, or (iv) petition, request
or take any other legal or administrative action which seeks, or may be
expected, to rescind, terminate or suspend, any of the Acquisition Documents or
amend or modify any thereof. Such Pledgor shall notify the Collateral Agent in
the event it receives any notice or communication with respect to the
Acquisition Documents including, without limitation, notices of default, and
shall forward promptly copies of any such notices or communications to the
Collateral Agent.
SECTION 7. Provisions Concerning All Pledged Collateral.
(a) Insurance. Each Pledgor shall at all times keep the Equipment
insured in favor of Collateral Agent, at the applicable Pledgors' own expense,
against fire, theft and all other risks to which the Pledged Collateral may be
subject, in such amounts and with such deductibles as from time to time would be
maintained by a reasonably prudent operator of businesses similar to the
business of the applicable Pledgor. Each policy or certificates with respect to
such insurance shall be endorsed to the Collateral Agent's reasonable
satisfaction for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as an additional named insured or
loss payee as its interest may appear) and such policy or certificate shall be
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delivered to the Collateral Agent. Each such policy shall state that it cannot
be cancelled without thirty (30) days' prior written notice to the Collateral
Agent. At least thirty (30) days prior to the expiration of any such policy of
insurance, the applicable Pledgor shall deliver to the Collateral Agent an
extension or renewal policy or an insurance certificate evidencing renewal or
extension of such policy. If the applicable Pledgor shall fail to insure such
Pledged Collateral to the Collateral Agent's reasonable satisfaction or if the
applicable Pledgor shall fail to so endorse and deposit, or to extend or renew,
all such insurance policies or certificates with respect thereto, the Collateral
Agent shall have the right (but shall be under no obligation), to advance funds
to procure or renew or extend such insurance and the applicable Pledgor agrees
to reimburse the Collateral Agent for any and all costs and expenses thereof,
with interest on all such funds from the date advanced at the rate per annum
(the "Default Rate") equal to the highest rate then payable under the Notes.
Within five (5) Business Days after making any such advance, the Collateral
Agent shall endeavor to give the applicable Pledgor written notice of the amount
and purpose of such advance; provided, however, that failure to give such notice
will not relieve the applicable Pledgor of its obligations to make such
reimbursement to the Collateral Agent. Any proceeds of insurance in respect of
the Pledged Collateral are hereby assigned to the Collateral Agent. Subject to
the provisions of the Intercreditor Agreement, in case of any loss or damage to
any of the Pledged Collateral, all proceeds of insurance maintained by the
applicable Pledgor shall be paid to the Collateral Agent as Trust Moneys
pursuant to Article Twelve of the Indenture and shall be subject to retention
and disbursement by the Collateral Agent in accordance with the terms of the
Indenture.
(b) Further Actions. Each Pledgor shall, at its sole cost and
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such lists, descriptions and designations of
the Pledged Collateral pledged by it, copies of warehouse receipts, receipts in
the nature of warehouse receipts, bills of lading, documents of title, vouchers,
invoices and schedules relating to such Pledged Collateral.
(c) Notation on Books and Records. Each Pledgor shall place on its
books and records with respect to the Pledged Collateral pledged by it a
notation stating that the Collateral Agent has a security interest therein.
SECTION 8. Transfers and Other Liens. Except as permitted by the
Indenture (including, without limitation, Section 11.3(b) thereof), no Pledgor
shall sell, convey, assign or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral. No Pledgor shall create or permit to
exist any Lien upon or with respect to any of the Pledged Collateral other than
(i) Prior Liens, (ii) the Lien granted to the Collateral Agent pursuant to this
Agreement, (iii) Subordinate Intercreditor Liens, (iv) Liens of the type
described in clauses (iii), (iv) and (vii) of the definition of Permitted
Collateral Liens and refinancings thereof to the extent permitted under the
Indenture and the Intercreditor Agreement and (v) Liens of the type described in
clauses` (b), (c), (h), (i), (n) and (q) of the definition of Permitted Liens;
provided, however, that each of the Liens permitted by this clause (v) of this
Section 8 shall in all respects be subject and subordinate in priority to the
Lien of this Agreement except to the extent that the law or regulation creating
or authorizing such Lien provides that such Lien must be superior to the Lien of
this Agreement.
SECTION 9. Reasonable Care. The Collateral Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which the Collateral Agent, in its individual
capacity, accords its own property, it being understood that the Collateral
Agent shall not have responsibility for taking any necessary steps to preserve
rights against any Person with respect to any Pledged Collateral.
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SECTION 10. Remedies Upon Event of Default.
(a) Obtaining Possession of the Pledged Collateral. If an Event of
Default shall have occurred and be continuing, then and in every such case, the
Collateral Agent may, but shall not be obligated to, in addition to any other
action permitted by law (and not limited in any manner to the remedies contained
in the Notes and the Indenture) take one or more of the following actions, in
accordance with the terms of, and at the times, if any, specified in the
Indenture:
(i) personally, or by agents or attorneys, immediately take
possession of the Pledged Collateral or any part thereof, from any Pledgor
or any other Person who then has possession of any part thereof with or
without notice or process of law (to the fullest extent permitted by law),
and for that purpose may enter upon any Pledgor's premises where any of
the Pledged Collateral is located and remove such Pledged Collateral and
use in connection with such removal any and all services, supplies, aids
and other facilities of any such Pledgor as reasonably necessary to effect
such removal;
(ii) sell, assign or otherwise liquidate, or direct any
Pledgor to sell, assign or otherwise liquidate, any or all investments
made in whole or in part with the Pledged Collateral pledged by it or any
part thereof, and take possession of the proceeds of any such sale,
assignment or liquidation; and
(iii) take possession of the Pledged Collateral or any part
thereof, by directing any Pledgor in writing to deliver the same to the
Collateral Agent at any place or places designated by the Collateral
Agent, in which event the applicable Pledgor shall at its own expense: (x)
forthwith cause the Pledged Collateral pledged by it to be moved to the
place or places so designated by the Collateral Agent and there delivered
to the Collateral Agent; (y) store and keep any Pledged Collateral so
delivered to the Collateral Agent at such place or places pending further
action by the Collateral Agent and (z) while the Pledged Collateral shall
be so stored and kept, provide such guards and maintenance services as
shall be necessary to protect the same and to preserve and maintain them
in good condition. Each Pledgor's obligation to deliver the Pledged
Collateral is of the essence of this Agreement. Upon application to a
court of equity having jurisdiction, the Collateral Agent shall be
entitled to a decree requiring specific performance by the applicable
Pledgor of such obligation.
(b) Disposition of the Pledged Collateral. Upon the occurrence and
during the continuance of an Event of Default, the Collateral Agent may,
in accordance with the terms of, and at the times, if any, specified in
the Indenture, exercise in respect of the Pledged Collateral, in addition
to the other rights and remedies provided for herein or otherwise
available to it, without notice except as specified below or as otherwise
required by law, sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or
at any of the Collateral Agent's offices or elsewhere, for cash, on credit
or for future delivery, and at such price or prices and upon such other
terms as the Collateral Agent may deem commercially reasonable. The
Collateral Agent or any Secured Party may bid for and be the purchaser of
any or all of the Pledged Collateral at any such sale and shall be
entitled, for the purpose of bidding and making settlement or payment of
the purchase price for all or any portion of the Pledged Collateral sold
at such sale, to deliver any outstanding Note or claims for interest
thereon in lieu of cash, which Note or claims for interest thereon shall
be applied to the payment of such purchase price. In the event that the
amount payable in respect of the purchase price of the Pledged Collateral
purchased at any such sale shall be less than the amount due on such Note,
such Note shall be returned to the Secured Party after being appropriately
stamped to show partial payment. Each purchaser at any such sale shall
acquire the property sold absolutely free from any claim or right on the
part of the applicable Pledgor, and the applicable Pledgor hereby waives,
to the fullest extent permitted by law, all rights of redemption, stay or
appraisal hereafter enacted. The Collateral Agent shall not be obligated
to make any sale of Pledged Collateral regardless of notice of sale having
been given. The Collateral Agent may
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adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. Each Pledgor hereby waives, to
the fullest extent permitted by law, any claims against the Collateral Agent
arising by reason of the fact that the price at which any Pledged Collateral may
have been sold at such a private sale was less than the price which might have
been obtained at a public sale, even if the Collateral Agent accepts the first
offer received and does not offer such Pledged Collateral to more than one
offeree. Each Pledgor agrees that, to the extent notice of sale shall be
required by law, five (5) days' notice from the Collateral Agent of the time and
place of any public sale or of the time after which a private sale or other
intended disposition is to take place shall be commercially reasonable
notification of such matters. No notification need be given to any Pledgor if
such Pledgor has signed, after the occurrence of an Event of Default, a
statement renouncing or modifying any right to notification of sale or other
intended disposition.
(c) Remedies Under UCC. In addition to the rights and remedies
provided in this Agreement or otherwise available to it, the Collateral Agent
shall have all the rights and remedies of a secured party under the UCC.
(d) Waiver of Claims. Except as otherwise provided herein, each
Pledgor hereby waives, to the fullest extent permitted by applicable law, notice
or judicial hearing in connection with the Collateral Agent's taking possession
or the Collateral Agent's disposition of any of the Pledged Collateral,
including, without limitation, any and all prior notice and hearing for any
prejudgment remedy or remedies and any such right which the applicable Pledgor
would otherwise have under law, and the applicable Pledgor hereby further
waives, to the fullest extent permitted by applicable law: (i) all damages
occasioned by such taking of possession; (ii) all other requirements as to the
time, place and terms of sale or other requirements with respect to the
enforcement of the Collateral Agent's rights hereunder and (iii) all rights of
redemption, appraisal, valuation, stay, extension or moratorium now or hereafter
in force under any applicable law. Any sale of, or the grant of options to
purchase, or any other realization upon, any Pledged Collateral shall operate to
divest all right, title, interest, claim and demand, either at law or in equity,
of the applicable Pledgor therein and thereto, and shall be a perpetual bar both
at law and in equity against the applicable Pledgor and against any and all
Persons claiming or attempting to claim the Pledged Collateral so sold, optioned
or realized upon, or any part thereof, from, through or under the applicable
Pledgor.
(e) Certain Sales of Pledged Collateral. Each Pledgor recognizes
that, by reason of certain prohibitions contained in law, rules, regulations or
orders of any foreign governmental authority, the Collateral Agent may be
compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who meet the requirements of such
foreign governmental authority. Each Pledgor acknowledges that any such sales
may be at prices and on terms less favorable to the Collateral Agent than those
obtainable through a public sale without such restrictions, and, notwithstanding
such circumstances, agrees that any such restricted sale shall be deemed to have
been made in a commercially reasonable manner.
SECTION 11. Application of Proceeds. The proceeds received by the
Collateral Agent in respect of any sale of, collection from or other realization
upon all or any part of the Pledged Collateral pursuant to the exercise by the
Collateral Agent of its remedies as a secured creditor as provided in Section 10
hereof shall be applied, together with any other sums then held by the
Collateral Agent pursuant to this Agreement, promptly by the Collateral Agent in
the manner set forth in the Indenture and/or the Intercreditor Agreement.
SECTION 12. Expenses. Each Pledgor will upon demand pay to the
Collateral Agent the amount of any and all expenses, including the reasonable
fees and expenses of its counsel (including, without limitation, any local
counsel) and the allocated costs of the Collateral Agent's internal counsel and
the fees and expenses of any experts and agents which the Collateral Agent may
incur in connection with (i) the collection of
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the Secured Obligations, (ii) the enforcement and administration of this
Agreement, (iii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, (iv) the
exercise or enforcement of any of the rights of the Collateral Agent or any
Secured Party hereunder or (v) the failure by any Pledgor to perform or observe
any of the provisions hereof. All amounts payable by each Pledgor under this
Section 12 shall be due upon demand and shall be part of the Secured
Obligations. Each Pledgor's obligations under this Section 12 shall survive the
termination of this Agreement and the discharge of each such Pledgor's other
obligations hereunder.
SECTION 13. No Waiver; Cumulative Remedies.
(a) No failure on the part of the Collateral Agent to exercise, no
course of dealing with respect to, and no delay on the part of the Collateral
Agent in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law.
(b) In the event the Collateral Agent shall have instituted any
proceeding to enforce any right, power or remedy under this Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Collateral Agent, then and in every such case, each Pledgor, the
Collateral Agent and each holder of any of the Secured Obligations shall be
restored to their respective former positions and rights hereunder with respect
to the Pledged Collateral, and all rights, remedies and powers of the Collateral
Agent and the Secured Parties shall continue as if no such proceeding had been
instituted.
SECTION 14. Collateral Agent. The Collateral Agent has been
appointed as collateral agent pursuant to the Indenture and/or the Intercreditor
Agreement. The actions of the Collateral Agent hereunder are subject to the
provisions of the Indenture and/or the Intercreditor Agreement. The Collateral
Agent shall have the right hereunder to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or refrain from
taking action (including, without limitation, the release or substitution of
Pledged Collateral), in accordance with this Agreement, the Indenture and the
Intercreditor Agreement. The Collateral Agent may resign and a successor
Collateral Agent may be appointed in the manner provided in the Indenture and/or
the Intercreditor Agreement. Upon the acceptance of any appointment as the
Collateral Agent by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent under this Agreement, and
the retiring Collateral Agent shall thereupon be discharged from its duties and
obligations under this Agreement. After any retiring Collateral Agent's
resignation, the provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it under this Agreement while it was
the Collateral Agent.
SECTION 15. Collateral Agent May Perform; Collateral Agent Appointed
Attorney-in-Fact. If any Pledgor shall fail to do any act or thing that it has
covenanted to do hereunder or if any warranty on the part of any such Pledgor
contained herein shall be breached and if such failure or breach shall
constitute an Event of Default, the Collateral Agent or any Secured Party may
(but shall not be obligated to) do the same or cause it to be done or remedy any
such breach, and may expend funds for such purpose. Any and all amounts so
expended by the Collateral Agent or such Secured Party shall be paid by the
applicable Pledgor within five Business Days after demand therefor, with
interest at the Default Rate during the period from and including the date on
which such funds were so expended to the date of repayment. Each Pledgor's
obligations under this Section 15 shall survive the termination of this
Agreement and the discharge of each Pledgor's other obligations under this
Agreement. Each Pledgor hereby appoints the Collateral Agent its
attorney-in-fact with an interest, with full authority in the place and stead of
the applicable Pledgor and in the name of the applicable Pledgor, or
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otherwise, from time to time in the Collateral Agent's discretion, to take any
action and to execute any instrument consistent with the terms of this
Agreement, the Indenture and the Intercreditor Agreement which the Collateral
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement. The foregoing grant of authority is a power of attorney coupled with
an interest and such appointment shall be irrevocable for the term of this
Agreement. Each Pledgor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue and in accordance with the terms hereof.
SECTION 16. Notices. Unless otherwise provided herein any notice or
other communication herein required or permitted to be given shall be given in
the manner and at the address set forth in the Indenture, or as to any party at
such other address as shall be designated by such party in a written notice to
the other party complying as to delivery with the terms of this Section 16. All
such notices and other communications shall be deemed to have been given when
delivered in person, or received by telecopy or telex; or one (1) Business Day
after delivery to the office of such overnight courier service; or five (5)
Business Days after deposit in the United States mail, registered or certified,
with postage prepaid and properly addressed; provided, however, that notices to
the Collateral Agent shall not be effective until received by the Collateral
Agent.
SECTION 17. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon the Pledgors, their respective successors and assigns and
(ii) inure, together with the rights and remedies of the Collateral Agent
hereunder, to the benefit of the Collateral Agent and the other Secured Parties
and each of their respective successors, transferees and assigns. No other
Persons (including, without limitation, any other creditor of the Pledgors)
shall have any interest herein or any right or benefit with respect hereto.
Without limiting the generality of the foregoing clause (ii), any Secured Party
may assign or otherwise transfer any Note held by it secured by this Agreement
to any other Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such Secured Party, herein or
otherwise, subject however, to the provisions of the Indenture. To the extent an
affiliate of the Issuers from time to time after the initial date of this
Agreement is required under the Indenture to pledge any assets to the Collateral
Agent for the benefit of the Secured Parties, such affiliate may become a party
hereto upon execution and delivery to the Collateral Agent of a joinder
agreement substantially in the form attached hereto as Exhibit 1, and upon such
execution and delivery shall be deemed to be a "Pledgor" for all purposes
hereunder.
SECTION 18. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
SECTION 19. CONSENT TO JURISDICTION AND ANY SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PLEDGOR
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. EACH PLEDGOR DESIGNATES AND APPOINTS CT CORPORATION SYSTEM,
WITH AN ADDRESS AT 000 XXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000 AND SUCH OTHER
PERSONS AS MAY HEREAFTER BE SELECTED BY THE APPLICABLE PLEDGOR IRREVOCABLY
AGREEING IN WRITING TO SO SERVE, AS ITS AGENT
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TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY
SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE APPLICABLE PLEDGOR TO
BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO
SERVED SHALL BE MAILED BY REGISTERED MAIL TO THE APPLICABLE PLEDGOR AT ITS
ADDRESS PROVIDED FOR IN SECTION 16 HEREOF EXCEPT THAT UNLESS OTHERWISE PROVIDED
BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY
OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY THE APPLICABLE PLEDGOR REFUSES
TO RECEIVE AND FORWARD SUCH SERVICE, THE APPLICABLE PLEDGOR HEREBY AGREES THAT
SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE COLLATERAL AGENT TO BRING PROCEEDINGS AGAINST ANY PLEDGOR
IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 20. Severability of Provisions. Any provision of this
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 or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 21. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same Agreement.
SECTION 22. Headings. The Section headings used in this Agreement
are for convenience of reference only and shall not affect the construction of
this Agreement.
SECTION 23. Limitation on Interest Payable. It is the intention of
the parties to conform strictly to the usury laws, whether state or federal,
that are applicable to the transaction of which this Agreement is a part. All
agreements between each Pledgor and the Collateral Agent, whether now existing
or hereafter arising and whether oral or written, are hereby expressly limited
so that in no contingency or event whatsoever shall the amount paid or agreed to
be paid by the Pledgors for the use, forbearance or detention of the money to be
loaned or advanced under the Indenture or any related document, or for the
payment or performance of any covenant or obligation contained herein or in the
Indenture, exceeds the maximum amount permissible under applicable federal or
state usury laws. If under any circumstances whatsoever fulfillment of any such
provision, at the time performance of such provision shall be due, shall involve
exceeding the limit of validity prescribed by law, then the obligation to be
fulfilled shall be reduced to the limit of such validity. If under any
circumstances any Pledgor shall have paid an amount deemed interest by
applicable law, which would exceed the highest lawful rate, such amount that
would be excessive interest under applicable usury laws shall be applied to the
reduction of the principal amount owing in respect of the Secured Obligations
and not to the payment of interest, or if such excessive interest exceeds the
unpaid balance of principal and any other amounts due hereunder, the excess
shall be refunded to the applicable Pledgor. All sums paid or agreed to be paid
for the use, forbearance or detention of the principal under any extension of
credit or advancement of funds by United States Trust Company of New York, as
trustee or collateral agent, shall, to the extent permitted by applicable law,
and to the extent necessary to preclude exceeding the limit of validity
prescribed by law, be amortized, prorated, allocated and spread from the date of
this Agreement until payment in full of the Secured Obligations so that the
actual rate of interest on account of such principal amounts is uniform
throughout the term hereof.
IN WITNESS WHEREOF, the Pledgors have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC,
as Pledgor
By:________________________________________
Name:
Title:
RTI CAPITAL CORP.,
By:_________________________________________
Name:
Title:
NIMISHILLEN & TUSCARAWAS, LLC,
as Pledgor
By:_________________________________________
Name:
Title:
BLISS & XXXXXXXX, LLC,
as Pledgor
By:_________________________________________
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Collateral Agent
By:_________________________________________
Name:
Title:
