EXHIBIT 4.18
SUBSIDIARIES' PLEDGE AGREEMENT
SUBSIDIARIES' PLEDGE AGREEMENT, dated as of December 11, 1997, made
by each corporation signatory identified on Schedule A hereto (each such
entity, a "Pledgor"), in favor of STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as trustee (in such capacity, the "Trustee") for
holders of the Notes (as hereinafter defined) (the "Noteholders"), pursuant to
the Indenture, dated as of December 11, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Indenture"), among RBX Corporation,
a Delaware corporation, as issuer (the "Company"), Xxxxxxxx Manufacturing
Company, Inc., Xxxxxx-Xxxxx Rubber Custom Mixing Corp., Midwest Rubber Custom
Mixing Corp., OleTex Inc., Rubatex Corporation, Universal Polymer & Rubber
Inc., Universal Rubber Company and Waltex Corporation, as guarantors (the
"Subsidiary Guarantors"), and the Trustee.
WITNESSETH
WHEREAS, the Company will issue 12% Senior Secured Notes due 2003 in
the aggregate principal amount of $100,000,000 (the "Notes") pursuant to the
Indenture;
WHEREAS, each Pledgor is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) issued by each of the Issuers
(as hereinafter defined);
WHEREAS, it is a requirement of the Indenture that each Pledgor
guarantees payment and performance of the Company's obligations under the
Indenture, the Notes and the other Collateral Documents (as defined);
WHEREAS, in satisfaction of such condition, each Pledgor has entered
into a Subsidiary Guarantee of even date herewith (as amended, supplemented or
otherwise modified from time to time, the "Subsidiary Guarantees") for the
benefit of the Trustee and the Noteholders; and
WHEREAS, it is a further requirement of the Indenture that each
Pledgor shall have executed and delivered this Subsidiaries' Pledge Agreement
to the Trustee for the benefit of the Trustee and the Noteholders to secure
payment and performance of each Pledgor's obligations under the Subsidiary
Guarantees.
NOW, THEREFORE, in consideration of the premises, each Pledgor
hereby agrees with the Trustee, for the benefit of the Trustee and the
Noteholders, as follows:
1. Defined Terms.
(1) Unless otherwise defined herein, terms defined in the
Indenture and used herein shall have the meanings given to them in the
Indenture.
(2) The following terms shall have the following meanings:
"Closing Date": the date of the Indenture.
"Code": the Uniform Commercial Code in effect from time to
time in the State of New York.
"Collateral": all right, title and interest of each Pledgor in
and to the Pledged Stock, the Collateral Account and all Proceeds thereof.
"Collateral Account": the account established by the Trustee
at its Corporate Trust Office pursuant to Section 11 of the Indenture to hold
money Proceeds, maintained under the sole dominion and control of the Trustee,
subject to withdrawal by the Trustee for the account of the Noteholders only
as provided in Section 11 of the Indenture.
"Contractual Obligation": as to any Person, any provision of
any material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Domestic Subsidiary": a subsidiary of the Company
substantially all of whose assets are located in the United States or that
conducts substantially all of its business in the United States.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Issuers": the collective reference to the companies
identified on Schedule 1 attached hereto as the issuers of the Pledged Stock;
individually, an "Issuer."
"Material Adverse Effect": a material adverse effect on (a)
the business, assets, operations, property or condition (financial or
otherwise) of the Company and the Subsidiary Guarantors, taken as a whole, (b)
the ability of the Company or any of the Subsidiary Guarantors, to perform
their respective obligations under the Indenture, the Notes, the Subsidiary
Guarantees, the Registration Rights Pledge Agreement and the Collateral
Documents, (c) the validity or the enforceability of the Indenture, the Notes,
the Subsidiary Guarantees, the Registration Rights Agreement and the
Collateral Documents or (d) the rights or remedies of the Trustee, for the
benefit of the Trustee and the Noteholders, hereunder or thereunder.
"Obligations": as defined as "Guarantee Obligations" in the
Indenture.
"Pledge Agreement": this Subsidiaries' Pledge Agreement, as
the same may be amended, modified or otherwise supplemented from time to time.
"Pledged Stock": all of the issued and outstanding shares of
capital stock of each Issuer that is a Domestic Subsidiary as set forth on
Schedule 1 hereto and any shares that may be issued in the future by such
Issuers.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Code and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon or
distributions with respect thereto.
"RBX Parties": the Company, the Subsidiary Guarantors and any
new Subsidiary complying with Section 4.14 of the Indenture; individually, a
"RBX Party."
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination or an
arbitrator or a court of other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property (including the
properties subject to the Mortgages and Deeds of Trust) or to which such
Person or any of its material property is subject.
"Securities Act": the Securities Act of 1933, as amended.
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(3) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Pledge Agreement shall refer to this
Pledge Agreement as a whole and not to any particular provision of this Pledge
Agreement, and section and paragraph references are to this Pledge Agreement
unless otherwise specified.
(4) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge: Grant of Security Interest. As collateral security
for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations, each
Pledgor hereby delivers to the Trustee, for the benefit of the Trustee and the
Noteholders and their successors and assigns, all of such Pledgor's right,
title and interest in the Pledged Stock listed on Schedule 1 hereto, agrees to
deliver to the Trustee as provided in Section 5 hereof any shares issued in
the future by such Issuers, and hereby grants to the Trustee, for the benefit
of the Trustee and the Noteholders and their successors and assigns, a first
security interest in the Collateral.
3. Stock Powers. Concurrently with the delivery to the Trustee
of each certificate representing one or more shares of Pledged Stock to the
Trustee, each Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by each Pledgor with, if the Trustee so
requests, signature guaranteed.
4. Representations and Warranties. Each Pledgor represents and
warrants that:
(1) Each Pledgor has the corporate power and authority to
execute and deliver, to perform its obligations under, and to grant the
security interest in the Collateral pursuant to, this Pledge Agreement and has
taken all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the security interest in the Collateral pursuant
to, this Pledge Agreement.
(2) This Pledge Agreement constitutes a legal, valid and
binding obligation of each Pledgor, enforceable in accordance with its terms.
Upon delivery to the Trustee of the stock certificates evidencing the Pledged
Stock, the security interest created pursuant to this Pledge Agreement will
constitute a valid, perfected first priority security interest in the Pledged
Stock and the Proceeds thereof (except that with respect to Proceeds, such
security interest is perfected only to the extent provided by Section 9-306 of
the Code), and, assuming continuous possession thereof by the Trustee, is
enforceable to the extent provided by law against all creditors of each
Pledgor and any Persons purporting to purchase any Collateral from each
Pledgor, except in each case as enforceability may be affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(3) The execution, delivery and performance of this Pledge
Agreement will not violate any provision of any Requirement of Law (including
Regulations G, T, U or X of the Federal Reserve Board) or Contractual
Obligation of any Pledgor in any respect that, in the aggregate for all such
violations, could reasonably be expected to have a Material Adverse Effect
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and will not result in the creation or imposition of any Lien on any of the
properties or revenues of any Pledgor pursuant to any Requirement of Law or
Contractual Obligation of such Pledgor, except the security interest created
by this Pledge Agreement.
(4) No consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any stockholder or
creditor of any Pledgor), is required in connection with the execution,
delivery, performance, validity or enforceability of this Pledge Agreement
other than those which have been duly obtained or made and are in full force
and effect on the Closing Date and except for those the absence of which in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(5) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the knowledge of
any Pledgor, threatened by or against any Pledgor or against any of its
properties or revenues (1) with respect to this Pledge Agreement or any of the
transactions contemplated hereby or (2) which could reasonably be expected to
have a Material Adverse Effect.
(6) The shares of Pledged Stock constitute all the issued
and outstanding shares of all classes of the capital stock of each Issuer and
all such shares of Pledged Stock are listed on Schedule 1.
(7) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(8) Each Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock, free of any and all Liens
(other than the Liens in favor of the Chase Manhattan Bank, as collateral
agent, which shall be released on the Closing Date) or options in favor of, or
claims of, any other Person, except the security interest created by this
Pledge Agreement.
5. Covenants. Each Pledgor covenants and agrees with the Trustee
and the Noteholders that, from and after the date of this Pledge Agreement
until the payment in full or Legal Defeasance of all principal of, interest
on, premium, if any, and Liquidated Damages, if any, with respect to the Notes
and any other Obligations for the payment of money then due and owing to any
Noteholder or the Trustee under the Indenture or any Collateral Document:
(1) Contemporaneously with the issuance or grant by any
Issuer that is a Domestic Subsidiary to any Pledgor of any stock certificates,
options or rights, Schedule l hereto shall be updated to include all such
stock certificates, options or rights; provided that the failure of a Pledgor
or the Trustee to so update Schedule 1 hereto shall not impair the security
interest of the Trustee in such stock certificates, options or rights, as the
case may be.
(2) If a Pledgor shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
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increase or reduction of capital or any certificate issued in connection with
any reorganization), option or rights, whether in addition to, in substitution
of, as a conversion of, or in exchange for any shares of the Pledged Stock, or
otherwise in respect thereof, such Pledgor shall accept the same as the agent
of the Trustee and the Noteholders, hold the same in trust for the Trustee and
the Noteholders and deliver the same forthwith to the Trustee for the benefit
of the Noteholders in the exact form received, duly endorsed by such Pledgor
to the Trustee for the benefit of the Noteholders, if required, together with
an undated stock power covering such certificate duly executed in blank by
such Pledgor and with its signature guaranteed, to be held by the Trustee for
the benefit of the Noteholders, subject to the terms hereof, as additional
collateral security for the Obligations.
(3) Each Pledgor will not (1) vote to enable, or take any
other action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock, or other equity
securities of any nature of any Issuer, except as permitted by the Indenture,
(2) except as permitted by Article 10 of the Indenture, sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Collateral, except transfers to RBX Parties subject to the pledge
hereunder, or (3) except as permitted by Section 4.11 of the Indenture,
create, incur or permit to exist any Lien or option in favor of, or any claim
of any Person with respect to, any of the Collateral, or any interest therein,
except for the security interests created by this Pledge Agreement.
(4) Each Pledgor shall maintain the security interest
created by this Pledge Agreement as a perfected security interest and shall
defend such security interest against claims and demands of all Persons
whomsoever. At any time and from time to time, upon the written request of
the Trustee, and at the sole expense of each Pledgor, each Pledgor will
promptly and duly execute and deliver such further instruments and documents
and take such further actions as the Trustee may reasonably request for the
purposes of obtaining or preserving the full benefits of this Pledge Agreement
and of the rights and powers herein granted. If any amount payable under or
in connection with any of the Collateral shall be or become evidenced by any
promissory note, other instrument or Chattel Paper, such note, instrument or
chattel paper shall be immediately delivered to the Trustee, duly endorsed in
a manner satisfactory to the Trustee, to be held as Collateral pursuant to
this Pledge Agreement.
(5) Each Pledgor shall pay, and save the Trustee and the
Noteholders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Pledge Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing, (1) and the Trustee has given notice to
a Pledgor directing such Pledgor to deposit the same in the Collateral
Account, each Pledgor shall be permitted to receive all cash dividends, to the
extent permitted in the Indenture, in respect of the Pledged Stock, and (2)
unless the Trustee shall have given notice to each Pledgor of the Trustee's
intent to exercise its rights pursuant to Section 7(b)(2) below, each Pledgor
shall be permitted to exercise all voting and corporate rights with respect to
the Pledged Stock.
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7. Rights of the Noteholders and the Trustee. If an Event of
Default shall occur and be continuing, (1) the Trustee shall have the right,
upon giving the notice described in Section 6(1) above, to receive any and all
cash dividends paid in respect of the Pledged Stock and make application
thereof to the Obligations in such order as the Trustee may determine, and (2)
if the Trustee shall give notice to any Pledgor of its intent to exercise such
rights, all shares of the Pledged Stock shall be registered in the name of the
Trustee or its nominee for the benefit of the Noteholders, and the Trustee or
its nominee may thereafter exercise (A) all voting, corporate and other rights
pertaining to such shares of the Pledged Stock at any meeting of shareholders
of any Issuer or otherwise and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
shares of the Pledged Stock as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any
and all of the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by such Pledgor or the Trustee of any right,
privilege or option pertaining to such shares of the Pledged Stock, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depository, transfer agent, registrar or
other designated agency upon such terms and conditions as the Trustee may
determine), all without liability except to account for property actually
received by it and except for its gross negligence or willful misconduct, but
the Trustee shall have no duty to any Pledgor to exercise any such right,
privilege or option and shall not be responsible for any failure to do so or
delay in so doing.
8. Remedies. (a) If an Event of Default shall have occurred and
be continuing, at any time at the Trustee's election, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Indenture, the Notes, Subsidiary Guarantees, the Registration Rights Agreement
and any Collateral Document pursuant to Article 6 of the Indenture.
(b) If an Event of Default shall occur and be continuing,
the Trustee, on behalf of the Noteholders, may exercise, in addition to all
other rights and remedies granted in this Pledge Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the Code. Without limiting
the generality of the foregoing, the Trustee, without demand of performance or
other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon each Pledgor
or any other Person (all and each of which demands, defenses, advertisements
and notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to purchase or
otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing) in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange,
broker's board or office of the Trustee or any Noteholder or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk. The Trustee or any Noteholder shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in any Pledgor,
which right or equity is hereby waived or released. The Trustee shall apply
any Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred in respect
thereof or incidental
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to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Trustee and the Noteholders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements of
counsel to the Trustee, to the payment in whole or in part of the Obligations,
in such order as the Trustee may elect, and only after such application and
after the payment by the Trustee of any other amount required by any provision
of law, including without limitation, Section 9-504(1)(c) of the Code, need
the Trustee account for the surplus, if any, to any Pledgor. To the extent
permitted by applicable law, any Pledgor waives all claims, damages and
demands it may acquire against the Trustee or any Noteholder arising out of
the exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such
sale or other disposition in accordance with Section 13.02 of the Indenture.
Each Pledgor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of Collateral are insufficient to pay the
Obligations and the fees and disbursements of any attorneys employed by the
Trustee or any Noteholder to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Trustee shall
determine to exercise its right to sell any or all of the Pledged Stock
pursuant to paragraph 8(b) hereof, and if in the opinion of the Trustee it is
necessary or advisable to have the Pledged Stock, or that portion thereof to
be sold, registered under the provisions of the Securities Act, each Pledgor
will cause the Issuer thereof to (1) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as
may be, in the opinion of the Trustee, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (2) use its best efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of
one year from the date of the first public offering of the Pledged Stock, or
that portion thereof to be sold, and (3) make all amendments thereto and/or to
the related prospectus which, in the opinion of the Trustee, are necessary or
advisable, all in conformity, with the requirements of the Securities Act and
the rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Pledgor agrees to cause the such Issuer to comply with the
provisions of the securities or "Blue Sky" laws of any and all jurisdictions
which the Trustee shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Pledgor recognizes that the Trustee may be unable
to effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Pledgor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public sale
and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Trustee shall be under no obligation to delay a sale of any of the Pledged
Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.
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(c) Each Pledgor further agrees to use its best efforts to
do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Stock pursuant to this
Section 9 valid and binding and in compliance with any and all other
applicable Requirements of Law. Each Pledgor further agrees that a breach of
any of the covenants contained in this Section 9 will cause irreparable injury
to the Trustee and the Noteholders, that the Trustee and the Noteholders have
no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section 9 shall be specifically
enforceable against each Pledgor, and each Pledgor hereby waives and agrees
not to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is
continuing under the Indenture.
10. Irrevocable Authorization and Instruction to Issuer. Each
Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Trustee in writing that (a) states that an
Event of Default has occurred and is continuing and (b) is otherwise in
accordance with the terms of this Pledge Agreement, without any other or
further instructions from each Pledgor, and each Pledgor agrees that each
Issuer shall be fully protected in so complying.
11. Trustee's Appointment as Attorney-in-Fact. (a) Upon the
occurrence and during the continuance of an Event of Default, each Pledgor
hereby irrevocably constitutes and appoints the Trustee and any officer or
agent of the Trustee, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of each Pledgor and in the name of each Pledgor or in the Trustee's own
name, from time to time in the Trustee's discretion, for the purpose of
carrying out the terms of this Pledge Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Pledge
Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said
attorneys-in-fact shall lawfully do or cause to be done pursuant to the power
of attorney granted in paragraph 11(a). All powers, authorizations and
agencies contained in this Pledge Agreement are coupled with an interest and
are irrevocable until payment in full of the Notes and the Obligations then
due and owing, the termination of this Pledge Agreement and the release of the
security interests created hereby.
12. Duty of Trustee. The Trustee's sole duty with respect to
the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Code or otherwise, shall be to deal
with it in the same manner and with the same care as the Trustee deals with
similar property for its own account. Neither the Trustee, any Noteholder nor
any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so, except where such failure or delay
results from their gross negligence or willful misconduct, or shall be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of each Pledgor or any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof. The powers conferred on
the Trustee and the Noteholders hereunder are solely to protect the Trustee's
and the Noteholders' interests in the Collateral and shall not impose any duty
upon the Trustee or any Noteholder to exercise any such powers. The Trustee
and the Noteholders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor
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any of their officers, directors, employees or agents shall be responsible to
each Pledgor for any act or failure to act hereunder, except for their own
gross negligence or willful misconduct.
13. Execution of Financing Statements, Etc. Pursuant to the
Code, each Pledgor will file financing statements with respect to the
Collateral in such form and in such filing offices appropriate to perfect the
security interests of the Trustee under this Pledge Agreement and will
execute, deliver and perform such other documents and acts as may be necessary
to perfect the security interests of the Trustee under this Pledge Agreement.
A carbon, photographic or other reproduction of this Pledge Agreement shall be
sufficient as a financing statement for filing in any jurisdiction.
14. Authority of Trustee. Each Pledgor acknowledges that the
rights and responsibilities of the Trustee under this Pledge Agreement with
respect to any action taken by the Trustee or the exercise or non-exercise by
the Trustee of any option, voting right, request, judgment or other right or
remedy provided for herein or resulting or arising out of this Pledge
Agreement shall, as between the Trustee and the Noteholders, be governed by
the Indenture, but, as between the Trustee and each Pledgor, the Trustee shall
be conclusively presumed to be acting as agent for the Noteholders with full
and valid authority so to act or refrain from acting, and neither any Pledgor
nor any Issuer shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
15. Notices. All notices, requests and demands to or upon the
Trustee or any Pledgor to be effective shall be in writing (or by telex, fax
or similar electronic transfer confirmed in writing) and shall be deemed to
have been duly given or made (1) when delivered by hand or (2) if given by
mail, three days after deposited in the mails by certified mail, return
receipt requested, postage prepaid or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as
follows:
(1) if to the Trustee, at its address or transmission
number for notices provided in Section 13.02 of the Indenture; and
(2) if to a Pledgor, at the address or transmission number
for notices to the Company as provided in Section 13.02 of the Indenture.
The Trustee and each Pledgor may change their addresses and
transmission numbers for notices by notice in the manner provided in this
Section.
16. Severability. Any provision of this Pledge Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Pledge Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each Pledgor and the Trustee, provided that any
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provision of this Pledge Agreement may be waived by the Trustee and the
Noteholders in a letter or agreement executed by the Trustee or by telex or
facsimile transmission from the Trustee.
(b) Neither the Trustee nor any Noteholder shall by any
act (except by a written instrument pursuant to paragraph 17(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or
in any breach-of any of the terms and conditions hereof. No failure to
exercise, nor any delay in exercising, on the part of the Trustee or any
Noteholder, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Trustee or any
Noteholder of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy, which the Trustee or such
Noteholder would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised single or concurrently and are not exclusive of any other
rights or remedies provided by law.
18. Release of Collateral and Termination. (a) Upon the payment
in full or Legal Defeasance of all principal of, interest on, premium, if any,
and Liquidated Damages, if any, with respect to the Notes and all Obligations
for the payment of money then due and owing to any Noteholder or the Trustee
under the Indenture and the Collateral Documents, the Collateral shall be
released from the Liens created hereby, and this Pledge Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Trustee and each Pledgor hereunder shall terminate, all without deliver of
any instrument or performance of any act by any party, and all rights to the
Collateral shall revert to each Pledgor. Upon request of a Pledgor following
any such termination, the Trustee shall deliver (at the sole cost and expense
of such Pledgor) to such Pledgor any Collateral held by the Trustee hereunder,
and execute and deliver (at the sole cost and expense of each Pledgor) to such
Pledgor such documents as such Pledgor shall reasonably request to evidence,
or give further effect to, such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by a Pledgor in a transaction permitted by the
Indenture, then the Trustee shall execute and deliver to such Pledgor (at the
sole cost and expense of such Pledgor) all releases, termination statements or
other documents reasonably necessary for the release of the Liens created
hereby on such Collateral.
19. Section Headings. The section headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
20. Successors and Assigns. This Pledge Agreement shall be
binding upon the successors and assigns of each Pledgor and shall inure to the
benefit of the Trustee and the Noteholders and their successors and assigns.
10
Each Pledgor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of Collateral are insufficient to pay the
Obligations and the fees and disbursements of any attorneys employed by the
Trustee or any Noteholder to collect such deficiency.
21. Submission To Jurisdiction; Waivers.
(1) Each Pledgor hereby irrevocably and unconditionally:
(1) submits for itself and its property in any
legal action or proceeding relating to this Pledge Agreement and the
other Collateral Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(2) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(3) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of
mail), postage prepaid, to each Pledgor at its address set forth in
Section 13.02 of the Indenture or at such other address of which the
Trustee shall have been notified pursuant thereto;
(4) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by
law or shall limit the right to xxx in any other jurisdiction; and
(2) Each of the Pledgors, the Trustee and the Noteholders
hereby unconditionally and irrevocably waive, to the maximum extent not
prohibited by law, any right they may have to claim or recover in any legal
action or proceeding referred to in this Section 21 any special, exemplary,
punitive or consequential damages.
22. Acknowledgments. Each Pledgor hereby acknowledges that:
(1) it has been advised by counsel in the negotiation,
execution and delivery of this Pledge Agreement and the other Collateral
Documents to which it is a party;
(2) neither the Trustee nor any Noteholder has any
fiduciary relationship with or duty to it or any other RBX Party arising out
of or in connection with this Pledge Agreement or any of the other Collateral
Documents, and the relationship between the Trustee and Noteholders, on one
hand, and the RBX Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
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(3) no joint venture is created hereby or by the other
Collateral Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Noteholders, the Trustee or the RBX Parties.
23. WAIVER OF JURY TRIAL. EACH PLEDGOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS PLEDGE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THEREOF.
25. Contradictory Provisions. In the event any one or more of
the provisions of this Pledge Agreement shall be found in a final judgment of
any New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, to
contradict or otherwise limit any provision in the Indenture, the provision in
the Indenture shall control.
26. Indemnity. (a) Each Pledgor agrees to pay, and to save the
Trustee and the Noteholders harmless from, any and all liabilities, costs and
expenses (including, without limitation, legal fees and expenses) (1) with
respect to, or resulting from any delay in paying, any and all excise, sales
or other taxes that may be payable or determined to be payable with respect to
any of the Collateral, (2) with respect to, or resulting from, any delay in
complying with any Requirement of Law applicable to any of the Collateral and
(3) in connection with any of the transactions contemplated by this Pledge
Agreement. In any suit, proceeding or action brought by the Trustee or any
Noteholder for any amounts owed, each Pledgor will save, indemnify and keep
the Trustee and such Noteholder harmless from and against all expense, loss or
damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction or liability whatsoever of the account debtor or obligor thereunder,
arising out of a material breach by such Pledgor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing to or in favor of such account debtor or its successors from the
Company. The Trustee may have separate counsel and the Pledgors shall pay the
reasonable fees and expenses of such counsel. The Pledgors need not pay for
any settlement made without its consent, which consent shall not be
unreasonably withheld.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
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IN WITNESS WHEREOF, the undersigned have caused this Pledge
Agreement to be duly executed and delivered as of the date first above
written.
XXXXXXXX MANUFACTURING COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXXX-XXXXX RUBBER CUSTOM MIXING CORP.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
MIDWEST RUBBER CUSTOM MIXING CORP.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
OLETEX INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
RUBATEX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
S-1
UNIVERSAL POLYMER & RUBBER INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
UNIVERSAL RUBBER COMPANY
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
WALTEX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
S-2
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Subsidiaries' Pledge Agreement, dated December __, 1997, made by for the
benefit of State Street Bank and Trust Company, as Trustee (the "Pledge
Agreement"). The undersigned agrees for the benefit of the Trustee and the
Noteholders as follows:
1. The undersigned will be bound by the terms of the
Subsidiaries' Pledge Agreement and will comply with such terms insofar as such
terms are applicable to the undersigned.
2. The undersigned will notify the Trustee promptly in writing
of the occurrence of any of the events described in paragraph 5(a) of the
Subsidiaries' Pledge Agreement.
3.. The terms of paragraph 9(c) of the Subsidiaries' Pledge
Agreement shall apply to it mutatis mutandis with respect to all actions that
may be required of it under or pursuant to or arising out of Section 9 of the
Subsidiaries' Pledge Agreement.
[NAME OF ISSUER]
By:
--------------------------------
Name:
Title:
S-3
Schedule 1
----------
to Pledge Agreement
-------------------
DESCRIPTION OF PLEDGED STOCK
None.
Schedule A
to Pledge Agreement
-------------------
PLEDGORS
--------
Xxxxxxxx Manufacturing Company, Inc.
Xxxxxx-Xxxxx Rubber Custom Mixing Corp.
Midwest Rubber Custom Mixing Corp.
OleTex Inc.
Rubatex Corporation
Universal Polymer & Rubber Inc.
Universal Rubber Company
Waltex Corporation
