Exhibit 10.11
COMPANY PLEDGE AGREEMENT
AMENDMENT AND RESTATEMENT dated as of September 20, 1996 to PLEDGE
AGREEMENT, dated as of August 1, 1995 (as amended, modified or supplemented from
time to time, the "Agreement"), made by the undersigned (the "Pledgor"), in
favor of THE CHASE MANHATTAN BANK, as Collateral Agent (the "Pledgee"), for the
benefit of the Secured Creditors (as defined below). Except as otherwise
defined herein, terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H :
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WHEREAS, RELTEC HOLDINGS, INC. (the "Company") and RELTEC (UK)
LIMITED, various financial institutions from time to time party thereto (the
"Banks"), and The Chase Manhattan Bank, as Agent (the "Agent", and together with
the Banks, the "Bank Creditors"), have entered into an Amendment and
Restatement, dated as of September 20, 1996, amending and restating the Credit
Agreement dated as of July 31, 1995 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans and the
issuance of, and participation in, Letters of Credit as contemplated therein;
WHEREAS, the Company may from time to time be a party to one or more
Interest Rate Agreements (each such Interest Rate Agreement with an Interest
Rate Creditor (as defined below), a "Secured Interest Rate Agreement") with any
Bank (including without limitation The Chase Manhattan Bank in its individual
capacity) or a syndicate of financial institutions organized by any Bank or an
affiliate of any Bank (even if any such Bank ceases to be a Bank under the
Credit Agreement for any reason) (any institution that participates in such
Secured Interest Rate Agreement, and in each case, its assignees, collectively,
the "Interest Rate Creditors," and the Interest Rate Creditors together with the
Bank Creditors, collectively the "Secured Creditors");
WHEREAS, the Pledgor entered into a Pledge Agreement, dated as of
August 1, 1995 (as amended, modified or supplemented to the date hereof, the
"Original Pledge Agreement");
WHEREAS, the Pledgor desires to amend and restate the Original Pledge
Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Original Pledge
Agreement shall be and hereby is amended and restated in its entirety to read as
follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due of all obligations and
liabilities of the Pledgor, now existing or hereafter incurred under,
arising out of or in connection with any Credit Document and the due
performance and compliance by the Pledgor with the terms of each such
Credit Document (all such obligations and liabilities under this clause
(i), except to the extent consisting of obligations or indebtedness with
respect to Interest Rate Agreements, being herein collectively called the
"Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
of the Pledgor, now existing or hereafter incurred under, arising out of or
in connection with any Secured Interest Rate Agreement (all such
obligations and indebtedness under this clause (ii) being herein
collectively called the "Interest Rate Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral (as hereinafter defined); and
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities referred to in
clauses (i), (ii) and (iii) above, after an Event of Default (such term, as
used in this Agreement, shall mean any Event of Default under, and as
defined in, the Credit Agreement or any payment default under any Secured
Interest Rate Agreement after the expiration of any applicable grace
period) shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing or realizing on the Collateral, or of any exercise by the Pledgee
of its rights hereunder, together with reasonable attorneys' fees and court
costs;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (iv) of this Section 1 being herein collectively called the
"Obligations".
2. DEFINITION OF STOCK, NOTES, SECURITIES, ETC. As used herein, (i)
the term "Stock" shall mean (x) with respect to Domestic Subsidiaries, all of
the issued and outstanding shares of capital stock at any time owned by the
Pledgor of any Domestic Subsidiary other than an Unrestricted Subsidiary, and
(y) with respect to Foreign Subsidiaries, all of the issued and outstanding
shares of capital stock at any time owned by the Pledgor of any Foreign
Subsidiary, PROVIDED that the Pledgor shall not be required to pledge hereunder
(and the term "Stock" shall not include) more than 65% of the total combined
voting power
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of all classes of capital stock of any Foreign Subsidiary entitled to vote; (ii)
the term "Notes" shall mean all promissory notes from time to time issued to, or
held by, the Pledgor; and (iii) the term "Securities" shall mean all of the
Stock and Notes. The Pledgor represents and warrants that on the date hereof:
(a) each Subsidiary of the Pledgor, and the direct ownership thereof, is listed
on Annex A hereto; (b) the Stock held by the Pledgor consists of the number and
type of shares of the stock of the corporations as described in Annex B hereto;
(c) the Pledgor is the holder of record with respect to each Subsidiary and sole
beneficial owner of such Stock; (d) such Stock constitutes that percentage of
the issued and outstanding capital stock of the issuing corporation as is set
forth in Annex B hereto; (e) the Notes held by the Pledgor consist of the
promissory notes described in Annex C hereto; and (f) on the date hereof, the
Pledgor owns or possesses no other Securities.
3. PLEDGE OF SECURITIES, ETC.
3.1. PLEDGE. To secure the Obligations and for the purposes set
forth in Section 1, the Pledgor hereby: (i) grants to the Pledgee a security
interest in all of the Collateral (as hereinafter defined) owned by the Pledgor;
(ii) pledges and deposits as security with the Pledgee all Securities owned by
the Pledgor on the date hereof, if any, and delivers to the Pledgee certificates
or instruments therefor, duly endorsed in blank in the case of Notes and
accompanied by undated stock powers duly executed in blank by the Pledgor in the
case of Stock, or such other instruments of transfer as are acceptable to the
Pledgee; and (iii) assigns, transfers, hypothecates, mortgages, charges and sets
over to the Pledgee all of the Pledgor's right, title and interest in and to
such Securities (and in and to all certificates or instruments evidencing such
Securities), to be held by the Pledgee, upon the terms and conditions set forth
in this Agreement.
3.2. SUBSEQUENTLY ACQUIRED CERTIFIED STOCK. If the Pledgor shall
acquire (by purchase, stock dividend or otherwise) any additional Securities at
any time or from time to time after the date hereof which are represented by
certificates or instruments, the Pledgor will forthwith pledge and deposit the
certificates or instruments representing such Securities as security with the
Pledgee and deliver to the Pledgee the certificates or instruments therefor,
duly endorsed in blank in the case of Notes and accompanied by undated stock
powers duly executed in blank in the case of Stock, or such other instruments of
transfer as are acceptable to the Pledgee, and will promptly thereafter deliver
to the Pledgee a certificate executed by a principal executive officer of the
Pledgor describing such Securities and certifying that the same have been duly
pledged with the Pledgee hereunder. The Pledgor shall not be required at any
time to pledge hereunder any Stock which is more than 65% of the total combined
voting power of all classes of capital stock of any Foreign Corporation entitled
to vote.
3.3. UNCERTIFICATED SECURITIES. Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2, if any Securities (whether or not
now owned or hereafter acquired) are uncertificated securities, the Pledgor
shall promptly notify the Pledgee thereof, and shall promptly take all actions
required to perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 8-313 and 8-321 of the New York
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Uniform Commercial Code, if applicable). The Pledgor further agrees to take
such actions as the Pledgee deems necessary or desirable to effect the foregoing
and to permit the Pledgee to exercise any of its rights and remedies hereunder,
and agrees to provide an opinion of counsel reasonably satisfactory to the
Pledgee with respect to any such pledge of uncertificated Securities promptly
upon request of the Pledgee.
3.4. DEFINITION OF PLEDGED STOCK, PLEDGED NOTES, PLEDGED SECURITIES
AND COLLATERAL. All Stock at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Stock"; all Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "Pledged
Notes"; all Pledged Stock and Pledged Notes together are called the "Pledged
Securities", and the Pledged Securities, together with all proceeds thereof,
including any securities and moneys received and at the time held by the Pledgee
hereunder, are hereinafter called the "Collateral".
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
have the right, at its own expense or if an Event of Default exists, at the
expense of the Pledgor, to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Securities, which may be held (in
the discretion of the Pledgee) in the name of the Pledgor, endorsed or assigned
in blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or
a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until an Event
of Default has occurred and be continuing and the Pledgee shall have notified
the Pledgor that the Pledgor may no longer exercise the rights referred to below
(except that no such notice shall be required in the case of an Event of Default
specified in Section 9.05 of the Credit Agreement with respect to the Pledgor (a
"Bankruptcy Event of Default")), the Pledgor shall be entitled to exercise any
and all voting and other consensual rights pertaining to the Pledged Securities
owned by it, and to give consents, waivers or ratifications in respect thereof,
PROVIDED that no vote shall be cast or any consent, waiver or ratification given
or any action taken which would violate or be inconsistent with any of the terms
of any Credit Document or any Secured Interest Rate Agreement (collectively, the
"Secured Debt Agreements"), or which would have the effect of impairing the
position or interests of the Pledgee or any Secured Creditor therein. All such
rights of the Pledgor to vote and to give consents, waivers and ratifications
shall cease in case an Event of Default shall occur and be continuing and,
except in the case of a Bankruptcy Event of Default with respect to the Pledgor,
the Pledgee shall have notified the Pledgor of such cessation, and Section 7
hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until an Event of
Default shall have occurred and be continuing, all cash dividends payable in
respect of the Pledged Securities shall be paid to the Pledgor, PROVIDED that,
all dividends payable in respect of the Pledged Stock which are determined by
the Pledgee, in its reasonable discretion, to represent in whole or in part, a
liquidating or other distribution in return of capital shall be paid to the
Pledgee and retained by it as part of the Collateral (unless such dividends are
applied to
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repay Obligations pursuant to Section 9). The Pledgee shall also be entitled to
receive directly in pledge, and to retain as part of the Collateral:
(i) all other or additional stock or other securities or property
(other than cash) paid or distributed by way of dividend or otherwise in
respect of the Pledged Stock;
(ii) all other or additional stock or other securities or property
(including cash (unless such dividends are applied to repay Obligations
pursuant to Section 9)) paid or distributed in respect of the Pledged Stock
by way of stock-split, spin-off, split-up, reclassification, combination of
shares or similar rearrangement; and
(iii) all other or additional stock or other securities or property
(including cash (unless such dividends are applied to repay the Obligations
pursuant to Section 9)) which may be paid in respect of the Collateral by
reason of any consolidation, merger, exchange of stock, conveyance of
assets, liquidation or similar corporate reorganization;
All dividends, distributions or other payments which are received by the Pledgor
contrary to the provisions of this Section 6 or Section 7 shall be received in
trust for the benefit of the Pledgee, shall be segregated from other property or
funds of the Pledgor and shall be forthwith paid over to the Pledgee as
Collateral in the same form as so received (with any necessary endorsement).
7. REMEDIES IN CASE OF EVENT OF DEFAULT. In case an Event of Default
shall have occurred and be continuing, the Pledgee shall be entitled to exercise
all of the rights, powers and remedies (whether vested in it by this Agreement
or by any other Secured Debt Agreement or by law) for the protection and
enforcement of its rights in respect of the Collateral, including, without
limitation, all the rights and remedies of a secured party upon default under
the Uniform Commercial Code of the State of New York, and the Pledgee shall be
entitled, without limitation, to exercise the following rights, which the
Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
payable to the Pledgor under Section 6;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other action to collect upon any
Pledged Note (including, without limitation, to make any demand for payment
thereon);
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(iv) subject to the notice requirements set forth in Section 5, to
vote all or any part of the Pledged Securities (whether or not transferred
into the name of the Pledgee) and give all consents, waivers and
ratifications in respect of the Collateral and otherwise act with respect
thereto as though it were the outright owner thereof (the Pledgor hereby
irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of the Pledgor, with full power of substitution to do so);
and
(v) at any time or from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by the Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine, PROVIDED that at least 10 days' notice
of the time and place of any such sale shall be given to the Pledgor. Each
purchaser at any such sale shall hold the property so sold absolutely free
from any claim or right on the part of the Pledgor, and the Pledgor hereby
waives and releases to the fullest extent permitted by law any right or
equity of redemption with respect to the Collateral, whether before or
after sale hereunder, and all rights, if any, of marshalling the Collateral
and any other security for the Obligations or otherwise. At any such sale,
unless prohibited by applicable law, the Pledgee on behalf of the Secured
Creditors may bid for and purchase all or any part of the Collateral so
sold free from any such right or equity of redemption. Neither the Pledgee
nor any Secured Creditor shall be liable for failure to collect or realize
upon any or all of the Collateral or for any delay in so doing nor shall
any of them be under any obligation to take any action whatsoever with
regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of the
Pledgee provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute shall be cumulative
and concurrent and shall be in addition to every other such right, power or
remedy. The exercise or beginning of the exercise by the Pledgee or any Secured
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Secured Debt Agreement or now or hereafter existing
at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Pledgee or any Secured Creditor of all
such other rights, powers or remedies, and no failure or delay on the part of
the Pledgee or any Secured Creditor to exercise any such right, power or remedy
shall operate as a waiver thereof.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other moneys received by the Pledgee
hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing to the Pledgee
of the type described in clauses (iii) and (iv) of Section 1 of this
Agreement;
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(ii) second, to the extent moneys remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Obligations shall be paid to the Secured Creditors as provided in Section
9(c) with each Secured Creditor receiving an amount equal to its
outstanding Obligations or, if the moneys are insufficient to pay in full
all such Obligations, its Pro Rata Share (as defined below) of the amount
remaining to be distributed; and
(iii) third, to the extent moneys remain after the application
pursuant to the preceding clauses (i) and (ii) and following the
termination of this Agreement pursuant to Section 18 hereof, to the Pledgor
or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement "Pro Rata Share" shall mean, when
calculating a Secured Creditor's portion of any distribution or amount, the
amount (expressed as a percentage) equal to a fraction the numerator of which is
the amount of such Secured Creditor's Obligations and the denominator of which
is the then outstanding amount of all Obligations.
(c) All payments required to be made to the (i) Bank Creditors
hereunder shall be made to the Agent under the Credit Agreement for the account
of the Bank Creditors and (ii) Interest Rate Creditors hereunder shall be made
to the paying agent under the applicable Secured Interest Rate Agreement or, in
the case of Secured Interest Rate Agreements without a paying agent, directly to
the applicable Interest Rate Creditor.
(d) For purposes of applying payments received in accordance with this
Section 9, the Pledgee shall be entitled to rely upon (i) the Agent under the
Credit Agreement in respect of Credit Document Obligations for a determination
(which the Agent and each Bank Creditor agree (or shall agree) to provide upon
request of the Pledgee) as to the outstanding Credit Document Obligations owed
to the Bank Creditors and (ii) upon any Interest Rate Creditor for a
determination (which each Interest Rate Creditor agrees to provide upon request
to the Pledgee) of the outstanding Interest Rate Obligations owed to such
Interest Rate Creditor. Unless it has actual knowledge (including by way of
written notice from a Secured Creditor) to the contrary, the Agent under the
Credit Agreement in furnishing information pursuant to the preceding sentence,
and the Pledgee in acting hereunder, shall be entitled to assume that (x) no
Credit Document Obligations other than principal, interest and regularly
accruing fees are owing to any Bank Creditor and (y) no Secured Interest Rate
Agreements or Interest Rate Obligations with respect thereto are in existence.
(e) It is understood and agreed that the Pledgor shall remain liable
to the extent of any deficiency between (x) the amount of the proceeds of the
Collateral hereunder and (y) the aggregate outstanding amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to
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judicial process or otherwise), the receipt of the Pledgee or the officer making
the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the
Pledgee or such officer or be answerable in any way for the misapplication or
nonapplication thereof.
11. INDEMNITY. The Pledgor agrees (i) to indemnify and hold harmless
the Pledgee and the Secured Creditors in such capacity from and against any and
all claims, demands, losses, judgments and liabilities (including liabilities
for penalties) of whatsoever kind or nature, and (ii) to reimburse the Pledgee
and the Secured Creditors for all reasonable costs and expenses, including
reasonable attorneys' fees growing out of or resulting from this Agreement or
the exercise by the Pledgee of any right or remedy granted to it hereunder or
under any other Secured Debt Agreement except, with respect to clauses (i) and
(ii) above, for those arising from the Pledgee's gross negligence or willful
misconduct. In no event shall the Pledgee be liable, in the absence of gross
negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for moneys actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of the Pledgor under this Section 11 are unenforceable for any
reason, the Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) The Pledgor agrees that
it will join with the Pledgee in executing and, at the Pledgor's own expense,
file and refile under the UCC such financing statements, continuation statements
and other documents in such offices as the Pledgee may deem necessary or
appropriate and wherever required or permitted by law in order to perfect and
preserve the Pledgee's security interest in the Collateral and hereby authorizes
the Pledgee to file financing statements and amendments thereto relative to all
or any part of the Collateral without the signature of the Pledgor where
permitted by law, and agrees to do such further acts and things and to execute
and deliver to the Pledgee such additional conveyances, assignments, agreements
and instruments as the Pledgee may reasonably require or deem advisable to carry
into effect the purposes of this Agreement or to further assure and confirm unto
the Pledgee its rights, powers and remedies hereunder.
(b) The Pledgor hereby appoints the Pledgee the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time after the occurrence
and during the continuance of an Event of Default, in the Pledgee's discretion
to take any action and to execute any instrument which the Pledgee may
reasonably deem necessary or advisable to accomplish the purpose of this
Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed that the obligations of the
Pledgee as holder of the Collateral
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and interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
Section 11 of the Credit Agreement.
14. TRANSFER BY THE PLEDGOR. Except for sales of Collateral permitted
pursuant to the Credit Agreement, the Pledgor will not sell or otherwise dispose
of, grant any option with respect to, or mortgage, pledge or otherwise encumber
any of the Collateral or any interest therein (except in accordance with the
terms of this Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. (a) The
Pledgor represents, warrants and covenants that:
(i) it is the legal, record and beneficial owner of, and has good
and marketable title to, all Securities pledged by it hereunder, subject to
no pledge, lien, mortgage, hypothecation, security interest, charge, option
or other encumbrance whatsoever, except the liens and security interests
created by this Agreement;
(ii) it has full power, authority and legal right to pledge all the
Securities pledged by it pursuant to this Agreement;
(iii) all the shares of Stock have been duly and validly issued and
are fully paid and nonassessable; and
(iv) each of the Notes, when executed by the obligor thereof, will
be the legal, valid and binding obligation of such obligor, enforceable in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is
sought in equity or at law).
(b) The Pledgor covenants and agrees that it will defend the Pledgee's
right, title and security interest in and to the Securities and the proceeds
thereof against the claims and demands of all persons whomsoever.
(c) The Pledgor further covenants and agrees that it will have like
title to and right to pledge any other property at any time hereafter pledged to
the Pledgee as Collateral hereunder and will likewise defend the right thereto
and security interest therein of the Pledgee and the Secured Creditors.
16. THE PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of the
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged,
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terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation:
(i) any renewal, extension, amendment or modification of or
addition or supplement to or deletion from any Credit Document or any other
instrument or agreement referred to therein, or any assignment or transfer
of any thereof;
(ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument or this
Agreement;
(iii) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee;
(iv) any limitation on any party's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof;
or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
the Pledgor or any Subsidiary of the Pledgor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not the Pledgor shall have notice or
knowledge of any of the foregoing.
17. REGISTRATION, ETC. (a) If an Event of Default shall have occurred
and be continuing and the Pledgor shall have received from the Pledgee a written
request or requests that the Pledgor cause any registration, qualification or
compliance under any Federal or state securities law or laws to be effected with
respect to all or any part of the Pledged Stock, the Pledgor as soon as
practicable and at its expense will use its reasonable efforts to cause such
registration to be effected (and be kept effective) and will use its reasonable
efforts to cause such qualification and compliance to be effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Pledged Stock, including, without limitation, registration
under the Securities Act of 1933 as then in effect (or any similar statute then
in effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, PROVIDED that the Pledgee shall furnish to the Pledgor such
information regarding the Pledgee as the Pledgor may request in writing and as
shall be required in connection with any such registration, qualification or
compliance. The Pledgor will cause the Pledgee to be kept reasonably advised in
writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee and all others participating in the distribution of the Pledged Stock
against all claims, losses, damages and liabilities caused by any untrue
statement (or alleged untrue statement) of a material fact contained therein (or
in any related registration statement, notification or the like) or by any
omission (or alleged
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omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to the Pledgor by or on behalf of the Pledgee
expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Pledged Stock pursuant to Section 7, such
Pledged Stock or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Securities Act of 1933, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Pledged Stock or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable in order that such
sale may legally be effected without such registration, PROVIDED that at least
10 days' notice of the time and place of any such sale shall be given to the
Pledgor. Without limiting the generality of the foregoing, in any such event
the Pledgee, in its sole and absolute discretion: (i) may proceed to make such
private sale notwithstanding that a registration statement for the purpose of
registering such Pledged Stock or part thereof shall have been filed under such
Securities Act; (ii) may approach and negotiate with a single possible purchaser
to effect such sale; and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Pledged
Stock or part thereof. In the event of any such sale, the Pledgee shall incur
no responsibility or liability for selling all or any part of the Pledged Stock
at a price which the Pledgee, in its sole and absolute discretion, may in good
xxxxx xxxx reasonable under the circumstances.
18. TERMINATION, RELEASE. (a) After the Termination Date (as defined
below), this Agreement shall terminate (provided that all indemnities set forth
herein including, without limitation, in Section 11 hereof shall survive any
such termination) and the Pledgee, at the request and expense of the Pledgor,
will promptly execute and deliver to the Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and will duly assign, transfer and deliver to the Pledgor (without recourse and
without any representation or warranty) such of the Collateral as may be in the
possession of the Pledgee and as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement. As used in this Agreement,
"Termination Date" shall mean the date upon which the Total Commitment and all
Secured Interest Rate Agreements have been terminated, no Letter of Credit or
Note (as defined in the Credit Agreement) is outstanding and all Obligations
have been paid in full.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 8.02 of the Credit Agreement or is otherwise
released at the direction of the Required Banks (or as otherwise required by
Section 13.12 of the Credit Agreement), and the proceeds of such sale or sales
or from such release are applied in accordance with the terms of the Credit
Agreement to the extent required to be so applied, the Pledgee, at the request
and expense of the Pledgor, will duly assign, transfer and deliver to the
Pledgor (without recourse
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and without any representation or warranty) such of the Collateral as is then
being (or has been) so sold or released and as may be in possession of the
Pledgee and has not theretofore been released pursuant to this Agreement.
(c) At any time that the Pledgor desires that Collateral be released
as provided in the foregoing Section 18(a) or (b), it shall deliver to the
Pledgee a certificate signed by its chief financial officer or another
authorized senior officer stating that the release of the respective Collateral
is permitted pursuant to Section 18(a) or (b). The Pledgee shall have no
liability whatsoever to any Secured Creditor as a result of any release of
Collateral by it as permitted by this Section 18.
19. NOTICES, ETC. All notices and other communications hereunder
shall be in writing and shall be delivered or mailed by first class mail,
postage prepaid, addressed:
(a) if to the Pledgor, at its address set forth opposite its signature
below;
(b) if to the Pledgee, at:
The Chase Manhattan Bank
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000;
(c) if to any Bank (other than the Pledgee), at such address as such
Bank shall have specified in the Credit Agreement;
(d) if to any Interest Rate Creditor, at such address as such Interest
Rate Creditor shall have specified in writing to the Pledgors and the
Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Pledgor and the Pledgee (with the written
consent of the Required Banks (or as otherwise required by Section 13.12 of the
Credit Agreement)); PROVIDED, HOWEVER, that no such change, waiver, modification
or variance shall be made to Section 9 hereof or this Section 20 without the
consent of each Secured Creditor adversely affected thereby, PROVIDED FURTHER,
that any change, waiver, modification or variance adversely affecting the rights
and benefits of a single Class of Secured Creditors (and not all Secured
Creditors in a like or similar manner) shall require the written consent of the
Requisite
-12-
Creditors of such Class of Secured Creditors. For the purpose of this
Agreement, the term "Class" shall mean each class of Secured Creditors, I.E.,
whether (x) the Bank Creditors as holders of the Credit Document Obligations
or (y) the Interest Rate Creditors as holders of the Interest Rate
Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to each of the
Credit Document Obligations, the Required Banks and (y) with respect to the
Interest Rate Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Secured Interest Rate
Agreements.
21. MISCELLANEOUS. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force and effect,
subject to release and/or termination as set forth in Section 18, (b) be binding
upon the Pledgor, its successors and assigns, PROVIDED HOWEVER that the Pledgor
shall not assign any of its rights or obligations hereunder without the prior
written consent of the Pledgee (with the prior written consent of the Required
Banks or as otherwise required by Section 13.12 of the Credit Agreement), and
(c) inure, together with the rights and remedies of the Pledgee hereunder, to
the benefit of the Pledgee, the Secured Creditors and their respective
successors, transferees and assigns. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. The headings
of the several sections and subsections in this Agreement are for purposes of
reference only and shall not limit or define the meaning hereof. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument. In the
event that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other
provisions of this Agreement which shall remain binding on all parties hereto.
22. WAIVER OF JURY TRIAL. The Pledgor and the Pledgee hereby
irrevocably waive all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement or the transactions
contemplated hereby.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Company and the
Agent.
* * *
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address:
0000 Xxxxxxxxxxx Xxxxx RELTEC HOLDINGS, INC.,
Suite 250 as Pledgor
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000 By:
Facsimile No.: (000) 000-0000 --------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK,
as Pledgee
By:
--------------------------------
Title:
ANNEX A
to
COMPANY
PLEDGE AGREEMENT
----------------
LIST OF SUBSIDIARIES
--------------------
Jurisdiction
Subsidiaries of Organization
------------ ---------------
RELTEC Corporation Delaware
RELTEC Foreign Holdings, Inc. Delaware
ANNEX B
to
COMPANY
PLEDGE AGREEMENT
----------------
LIST OF STOCK
-------------
Percentage Number
Name of Issuing Type of Number of Shares Owned by of Shares
Corporation Shares Owned by Pledgor Pledgor Pledged
----------- ------ ---------------- ------- -------
RELTEC Common stock 1000 100% 1000
Corporation par value
$1 per share
RELTEC Foreign Common stock 100 100% 100
Holdings, Inc. par value
$1 per share
ANNEX C
to
COMPANY
PLEDGE AGREEMENT
----------------
LIST OF NOTES
-------------
Issuer Amount Maturity Date
------ ------ -------------
RELTEC (UK) Limited $120,250,649.75 12/31/1997
RELTEC Foreign Holdings, Inc. $0 12/31/1997
RELTEC Corporation The amount shall equal N/A
the unpaid principal
amount of all loans and
advances made by Pledgor
to such Issuer as recorded
in the books and records
of Pledgor
