EXHIBIT 10.4
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
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THIS AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT ("Pledge
Agreement"), dated August 27, 2001, is by RBX CORPORATION, a Delaware
corporation ("Pledgor"), with its chief executive office at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 to and in favor of CONGRESS FINANCIAL
CORPORATION, a Delaware corporation, in its capacity as collateral agent
pursuant to the Collateral Agency Agreement (as hereinafter defined) acting for
and on behalf of Congress and the Note Trustee, each as hereinafter defined (in
such capacity, together with any successor or replacement collateral agent,
"Pledgee"), having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
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WHEREAS, Pledgor is now the direct and beneficial owner of all of the
issued and outstanding shares of capital stock of RBX Industries, Inc., a
Delaware corporation ("Issuer") as described on Exhibit A annexed hereto and
made a part hereof (the "Pledged Securities); and
WHEREAS, Congress Financial Corporation ("Congress") and Issuer have
entered into or are about to enter into financing arrangements pursuant to which
Congress may make loans and advances and provide other financial accommodations
to Issuer as set forth in the Amended and Restated Loan Agreement, dated of even
date herewith, by and among Congress, Pledgor and Issuer (as the same now exists
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced, the "Loan Agreement") and other agreements, documents and
instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including, but not limited to, the
Guarantee (as defined below) and this Pledge Agreement (all of the foregoing,
together with the Loan Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Congress Agreements"); and
WHEREAS, Pledgor, the parent corporation of Issuer, has issued its 12%
Senior Secured Notes due 2006 (the "Senior Notes") pursuant to the Indenture,
dated of even date herewith, by and among State Street Bank and Trust Company,
in its capacity as trustee for the holders of the Senior Notes (in such
capacity, "Note Trustee"), Pledgor, as Issuer and Issuer, as guarantor (as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being referred to herein as the "Indenture"), and
other agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto (all of the
foregoing, together with the Indenture and the Senior Notes, as the same now
exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, being collectively referred to herein as the "Note
Agreements");
WHEREAS, Congress and the Note Trustee, on behalf of itself and the holders
of the Senior Notes (collectively, "Lenders") have authorized and appointed
Pledgee to act for and on behalf of each of them as collateral agent as set
forth in the Intercreditor and Collateral Agency Agreement, dated of even date
herewith, by and among Note Trustee on behalf of the holders of the Senior
Notes, Congress and Pledgee, as acknowledged and agreed to by Pledgor and Issuer
(as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, the "Collateral Agency Agreement"); and
WHEREAS, Pledgor has absolutely and unconditionally guaranteed the payment
and performance of all now existing and hereafter arising obligations,
liabilities and indebtedness of Issuer to Congress as set forth in the Amended
and Restated Guarantee, dated of even date herewith, by Pledgor in favor of
Congress (as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, collectively, the
"Guarantee"); and
WHEREAS, in order to induce Pledgee and Lenders to enter into the Congress
Agreements and the Note Agreements (collectively, the "Financing Agreements")
and to make loans and advances and provide other financial accommodations to
Issuer pursuant thereto, Pledgor has agreed to secure the payment and
performance of the Obligations (as hereinafter defined) to Pledgee and to
accomplish same by (i) executing and delivering to Pledgee this Pledge
Agreement, (ii) delivering to Pledgee the Pledged Securities which are
registered in the name of Pledgor, together with appropriate powers duly
executed in blank by Pledgor, and (iii) delivering to Pledgee any and all other
documents which Pledgee deems necessary to protect Pledgee's interests
hereunder;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
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As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations (as hereinafter defined),
Pledgor hereby assigns, pledges, hypothecates, transfers and sets over to
Pledgee and grants to Pledgee on behalf of Lenders a security interest in and
lien upon (a) the Pledged Securities, together with all cash dividends, stock
dividends, interests, profits, redemptions, warrants, subscription rights,
stock, securities options, substitutions, exchanges and other distributions now
or hereafter distributed by Issuer or which may hereafter be delivered to the
possession of Pledgor or Pledgee with respect thereto, (b) Pledgor's records
with respect to the foregoing, and (c) the proceeds of all of the foregoing (all
of the foregoing being collectively referred to herein as the "Collateral").
2. OBLIGATIONS SECURED
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The security interest, lien and other interests granted to Pledgee pursuant
to this Pledge Agreement shall secure the prompt performance and payment in full
of any and all obligations,
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liabilities and indebtedness of every kind, nature and description owing by
Pledgor to Pledgee or any Lender, including principal, interest, charges, fees,
costs and expenses, however evidenced, whether as principal, surety, endorser,
guarantor or otherwise, to the extent arising under the Guarantee, this Pledge
Agreement, the Existing Congress Agreement (as hereinafter defined), the Loan
Agreement, the Indenture, or the other Financing Agreements, whether now
existing or hereafter arising, whether arising before, during or after the
initial or any renewal term of the Loan Agreement or before, during or after the
confirmation of the plan of reorganization in the Chapter 11 Cases, or after the
commencement of any case with respect to Pledgor under the United States
Bankruptcy Code or any similar statute (including, without limitation, the
payment of interest and other amounts which would accrue and become due but for
the commencement of such case), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, and
liquidated or unliquidated (all of the foregoing being collectively referred to
herein as the "Obligations").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
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Pledgor hereby represents, warrants and covenants with and to Pledgee the
following (all of such representations, warranties and covenants being
continuing so long as any of the Obligations are outstanding):
(a) The Pledged Securities are duly authorized, validly issued, fully paid
and non-assessable capital stock of Issuer and constitute Pledgor's entire
interest in Issuer and are not registered, nor has Pledgor authorized the
registration thereof, in the name of any person or entity other than Pledgor or
Pledgee.
(b) The Collateral is directly, legally and beneficially owned by Pledgor,
free and clear of all claims, liens, pledges and encumbrances of any kind,
nature or description, except for the pledge and security interest in favor of
Pledgee and the pledges and security interests permitted under the other
Security Agreements (as defined in the Loan Agreement).
(c) The Collateral is not subject to any restrictions relative to the
transfer thereof and Pledgor has the right to transfer and hypothecate the
Collateral free and clear of any liens, encumbrances or restrictions.
(d) The Collateral is duly and validly pledged to Pledgee and no consent or
approval of any governmental or regulatory authority or of any securities
exchange or the like, nor any consent or approval of any other third party, was
or is necessary to the validity and enforceability of this Pledge Agreement
other than the United States Bankruptcy Court for the Western District of
Virginia, Roanoke Division pursuant to the Chapter 11 Cases, which consent and
approval has been granted pursuant to the Confirmation Order (as such term is
defined in the Loan Agreement).
(e) Pledgor authorizes Pledgee to: (i) store, deposit and safeguard the
Collateral, (ii) perform any and all other acts which Pledgee in good xxxxx
xxxxx reasonable and/or necessary for the protection and preservation of the
Collateral or its value or Pledgee's security interest therein,
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including, without limitation, transferring, registering or arranging for the
transfer or registration of the Collateral to or in Pledgee's own name and
receiving the income therefrom as additional security for the Obligations and
(iii) pay any charges or expenses which Pledgee deems necessary for the
foregoing purpose, but without any obligation to do so. Any obligation of
Pledgee for reasonable care for the Collateral in Pledgee's possession shall be
limited to the same degree of care which Pledgee uses for similar property
pledged to Pledgee by other persons.
(f) If Pledgor shall become entitled to receive or acquire, or shall
receive any stock certificate, or option or right with respect to the stock of
Issuer (including without limitation, any certificate representing a dividend or
a distribution or exchange of or in connection with reclassification of the
Pledged Securities) whether as an addition to, in substitution of, or in
exchange for any of the Collateral or otherwise, Pledgor agrees to accept same
as Pledgee's agent, to hold same in trust for Pledgee and to deliver same
forthwith to Pledgee or Pledgee's agent or bailee in the form received, with the
endorsement(s) of Pledgor where necessary and/or appropriate powers and/or
assignments duly executed to be held by Pledgee or Pledgee's agent or bailee
subject to the terms hereof, as further security for the Obligations.
(g) Pledgor shall not, without the prior consent of Pledgee, directly or
indirectly, sell, assign, transfer, or otherwise dispose of, or grant any option
with respect to the Collateral, nor shall Pledgor create, incur or permit any
further pledge, hypothecation, encumbrance, lien, mortgage or security interest
with respect to the Collateral.
(h) So long as no Event of Default (as hereinafter defined) has occurred
and is continuing, Pledgor shall have the right to vote and exercise all
corporate rights with respect to the Pledged Securities, except as expressly
prohibited herein, and to receive any cash dividends payable in respect of the
Pledged Securities.
(i) Pledgor shall not permit Issuer, directly or indirectly, to issue,
sell, grant, assign, transfer or otherwise dispose of, any additional shares of
capital stock of Issuer or any option or warrant with respect to, or other right
or security convertible into, any additional shares of capital stock of Issuer,
now or hereafter authorized, unless all such additional shares, options,
warrants, rights or other such securities are made and shall remain part of the
Collateral subject to the pledge and security interest granted herein.
(j) Pledgor shall pay all charges and assessments of any nature against the
Collateral or with respect thereto prior to said charges and/or assessments
being delinquent.
(k) Pledgor shall promptly reimburse Pledgee on demand, together with
interest at the highest rate then applicable to the indebtedness of Issuer to
Lenders set forth in the Loan Agreement or the Indenture, as the case may be,
for any charges, assessments or expenses paid or incurred by Pledgee in its
discretion for the protection, preservation and maintenance of the Collateral
and the enforcement of Pledgee's or Lenders' rights hereunder, including,
without limitation, attorneys' fees and legal expenses incurred by Pledgee or
any Lender in seeking to protect, collect or enforce its rights in the
Collateral or otherwise hereunder.
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(l) Pledgor shall furnish, or cause to be furnished, to Pledgee such
information concerning Issuer and the Collateral as Pledgee may from time to
time reasonably request in good faith, including, without limitation, current
financial statements.
(m) Pledgee may notify Issuer or the appropriate transfer agent of the
Pledged Securities to register the security interest and pledge granted herein
and honor the rights of Pledgee with respect thereto.
(n) Pledgor waives: (i) all rights to require Pledgee or Lenders to proceed
against any other person, entity or collateral or to exercise any remedy, (ii)
the defense of the statute of limitations in any action upon any of the
Obligations, (iii) any right of subrogation or interest in the Obligations or
Collateral until all Obligations have been paid in full, (iv) any rights to
notice of any kind or nature whatsoever, unless specifically required in this
Pledge Agreement or non-waivable under any applicable law, and (v) to the extent
permissible, its rights under Section 9-207 of the Uniform Commercial Code.
Pledgor agrees that the Collateral, other collateral, or any other guarantor or
endorser may be released, substituted or added with respect to the Obligations,
in whole or in part, without releasing or otherwise affecting the liability of
Pledgor, the pledge and security interests granted hereunder, or this Pledge
Agreement. Pledgee is entitled to all of the benefits of a secured party set
forth in Section 9-207 of the New York Uniform Commercial Code.
4. EVENTS OF DEFAULT
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The occurrence or existence of any Event of Default under the Loan
Agreement or the Indenture is referred to herein individually as an "Event of
Default", and collectively as "Events of Default".
5. RIGHTS AND REMEDIES
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At any time an Event of Default exists or has occurred and is continuing,
in addition to all other rights and remedies of Pledgee and Lenders, whether
provided under this Pledge Agreement, the Loan Agreement, the Indenture, the
other Financing Agreements, applicable law or otherwise, Pledgee shall have the
following rights and remedies which may be exercised without notice to, or
consent by, Pledgor except as such notice or consent is expressly provided for
hereunder:
(a) Pledgee, at its option, shall be empowered to exercise its continuing
right to instruct the Issuer (or the appropriate transfer agent of the Pledged
Securities) to register any or all of the Pledged Securities in the name of
Pledgee or in the name of Pledgee's nominee and Pledgee may complete, in any
manner Pledgee may deem expedient, any and all stock powers, assignments or
other documents heretofore or hereafter executed in blank by Pledgor and
delivered to Pledgee. After said instruction, and without further notice,
Pledgee shall have the exclusive right to exercise all voting and corporate
rights with respect to the Pledged Securities and other Collateral, and exercise
any and all rights of conversion, redemption, exchange, subscription or any
other rights, privileges, or options pertaining to any shares of the Pledged
Securities or other
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Collateral as if Pledgee were the absolute owner thereof, including,
without limitation, the right to exchange, in its discretion, any and all of the
Pledged Securities and other Collateral upon any merger, consolidation,
reorganization, recapitalization or other readjustment with respect thereto.
Upon the exercise of any such rights, privileges or options by Pledgee, Pledgee
shall have the right to deposit and deliver any and all of the Pledged
Securities and other Collateral to any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as Pledgee
may determine, all without liability, except to account for property actually
received by Pledgee. However, Pledgee shall have no duty to exercise any of the
aforesaid rights, privileges or options (all of which are exercisable in the
sole discretion of Pledgee) and shall not be responsible for any failure to do
so or delay in doing so.
(b) In addition to all the rights and remedies of a secured party under the
Uniform Commercial Code or other applicable law, Pledgee shall have the right,
at any time and without demand of performance or other demand, advertisement or
notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly waived to the
extent permitted by applicable law), to proceed forthwith to collect, redeem,
recover, receive, appropriate, realize, sell, or otherwise dispose of and
deliver said Collateral or any part thereof in one or more lots at public or
private sale or sales at any exchange, broker's board or at any of Pledgee's
offices or elsewhere at such prices and on such terms as Pledgee may deem best.
The foregoing disposition(s) may be for cash or on credit or for future delivery
without assumption of any credit risk, with Pledgee having the right to purchase
all or any part of said Collateral so sold at any such sale or sales, public or
private, free of any right or equity of redemption in Pledgor, which right or
equity is hereby expressly waived or released by Pledgor. The proceeds of any
such collection, redemption, recovery, receipt, appropriation, realization, sale
or other disposition, after deducting all costs and expenses of every kind
incurred relative thereto or incidental to the care, safekeeping or otherwise of
any and all Collateral or in any way relating to the rights of Pledgee
hereunder, including attorneys' fees and legal expenses, shall be applied first
to the satisfaction of the Obligations (in such order as Pledgee may elect and
whether or not due) and then to the payment of any other amounts required by
applicable law, including Section 9-615(a)(3) of the Uniform Commercial Code,
with Pledgor to be and remain liable for any deficiency. Pledgor shall be liable
to Pledgee and Lenders for the payment on demand of all such costs and expenses,
together with interest at the highest rate then applicable to the indebtedness
of Issue to Lender set forth in the Loan Agreement or the Indenture, as the case
may be, and any attorneys' fees and legal expenses. Pledgor agrees that five (5)
days prior written notice by Pledgee designating the place and time of any
public sale or of the time after which any private sale or other intended
disposition of any or all of the Collateral is to be made, is reasonable
notification of such matters.
(c) Pledgor recognizes that Pledgee may be unable to effect a public sale
of all or part of the Collateral by reason of certain prohibitions contained in
the Securities Act of 1933, as amended, as now or hereafter in effect or in
applicable Blue Sky or other state securities law, as now or hereafter in
effect, but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Collateral for their own account for investment and not with a
view to the distribution or resale
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thereof. If at the time of any sale of the Collateral or any part thereof, the
same shall not, for any reason whatsoever, be effectively registered (if
required) under the Securities Act of 1933 (or other applicable state securities
law), as then in effect, Pledgee in its sole and absolute discretion is
authorized to sell such Collateral or such part thereof by private sale in such
manner and under such circumstances as Pledgee or its counsel may deem necessary
or advisable in order that such sale may legally be effected without
registration. Pledgor agrees that private sales so made may be at prices and
other terms less favorable to the seller than if such Collateral were sold at
public sale, and that Pledgee has no obligation to delay the sale of any such
Collateral for the period of time necessary to permit Issuer, even if Issuer
would agrees, to register such Collateral for public sale under such applicable
securities laws. Pledgor agrees that any private sales made under the foregoing
circumstances shall be deemed to have been in a commercially reasonable manner.
(d) All of the Pledgee's and Lenders' rights and remedies, including, but
not limited to, the foregoing and those otherwise arising under this Pledge
Agreement, the Loan Agreement, the Indenture and the other Financing Agreements,
the instruments comprising the Collateral, applicable law or otherwise, shall be
cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as Pledgee may deem expedient. No failure or delay
on the part of Pledgee in exercising any of its options, powers or rights or
partial or single exercise thereof, shall constitute a waiver of such option,
power or right.
6. JURY TRIAL WAIVER; OTHER WAIVERS
AND CONSENTS; GOVERNING LAW
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(a) The validity, interpretation and enforcement of this Pledge Agreement
and the other Financing Agreements and any dispute arising out of the
relationship between the parties hereto, whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of New York
(without giving effect to principles of conflicts of law).
(b) Pledgor irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York in New York County
and the United States District Court for the Southern District of New York and
waives any objection based on venue or forum non conveniens with respect to any
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action instituted therein arising under this Pledge Agreement or any of the
other Financing Agreements or in any way connected with or related or incidental
to the dealings of the parties hereto in respect of this Pledge Agreement or any
of the other Financing Agreements or the transactions related hereto or thereto,
in each case whether now existing or hereafter arising, and whether in contract,
tort, equity or otherwise, and agrees that any dispute with respect to any such
matters shall be heard only in the courts described above (except that Pledgee
shall have the right to bring any action or proceeding against Pledgor or its
property in the courts of any other jurisdiction which Pledgee deems necessary
or appropriate in order to realize on the Collateral or to otherwise enforce its
rights against Pledgor or its property).
(c) Pledgor hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by certified mail
(return receipt requested) directed to its address set forth herein and service
so made shall be deemed to be completed five (5) days
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after the same shall have been so deposited in the U.S. mails, or, at Pledgee's
option, by service upon Pledgor in any other manner provided under the rules of
any such courts. Within thirty (30) days after such service, Pledgor shall
appear in answer to such process, failing which Pledgor shall be deemed in
default and judgment may be entered by Pledgee against Pledgor for the amount of
the claim and other relief requested.
(d) PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS PLEDGE AGREEMENT OR ANY OF THE
OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF PLEDGOR AND PLEDGEE OR ANY LENDER IN RESPECT OF
THIS PLEDGE AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. PLEDGOR
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT PLEDGOR OR
PLEDGEE MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS PLEDGE AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
(e) Pledgee and Lenders shall not have any liability to Pledgor (whether in
tort, contract, equity or otherwise) for losses suffered by Pledgor in
connection with, arising out of, or in any way related to the transactions or
relationships contemplated by this Pledge Agreement, or any act, omission or
event occurring in connection herewith, unless it is determined by a final and
non-appealable judgment or court order binding on Pledgee or such Lender, that
the losses were the result of acts or omissions constituting gross negligence or
willful misconduct. In any such litigation, Pledgee shall be entitled to the
benefit of the rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of this Pledge
Agreement.
7. ACKNOWLEDGMENT AND RESTATEMENT
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(a) Pledgor has granted to Congress a security interest in, lien upon and
pledge of, the Collateral as set forth in the Pledge and Security Agreement,
dated April 20, 2001, between Pledgor and Congress (the "Existing Congress
Agreement") with respect to the stock of each of Rubatex Corporation
("Rubatex"), Xxxxxxxx Manufacturing Company, Inc. ("Xxxxxxxx"), OleTex Inc.
("OleTex"), Midwest Rubber Custom Mixing Corp. ("Midwest"), Xxxxxx-Xxxxx Rubber
Custom Mixing Corp. ("Xxxxxx"), Waltex Corporation ("Waltex"), UPR Disposition,
Inc. ("UPR") and Universal Rubber Company ("Universal", and together with
Rubatex, Xxxxxxxx, OleTex, Midwest, Xxxxxx, Waltex, UPR and Universal, each an
"Existing Issuer" and, collectively, "Existing Issuers"). Existing Issuers
(other than Rubatex) have each merged with and into Issuer with Issuer as the
surviving corporation pursuant to the Agreement of
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Merger, dated on or about the date hereof, by and among Issuer and the Existing
Issuers (the "Merger"). In connection with the Merger, Rubatex has changed it
corporate name to RBX Industries, Inc. (the entity defined herein as "Issuer").
As a result of the Merger and the name change described above, the issued and
outstanding shares of capital stock of each Existing Issuer have been replaced
with the issued and outstanding shares of capital stock of Issuer and such stock
of Issuer shall be, in all respects, considered Collateral pursuant to the
Existing Congress Agreement and shall be, in all respects, subject to the terms
and provisions of the Existing Congress Agreement.
(b) Pledgor hereby expressly assumes, adopts and ratifies the Existing
Congress Agreement and acknowledges, confirms and agrees that: (i) Pledgor is
and shall continue to be unconditionally liable in all respects for all of the
Obligations pursuant to the Existing Congress Agreement, without offset, defense
or counterclaim of any kind, nature or description whatsoever, (ii) the security
interest, lien and pledge of the Collateral in favor of Congress and the
perfection and priority thereof shall continue upon the Collateral as acquired
by Pledgor pursuant to the Merger in all respects in full force and effect,
(iii) Pledgee has and shall continue to have security interests in, liens upon
and pledges of all of the Collateral heretofore granted to Congress pursuant to
the Existing Congress Agreement to secure the Obligations, as well as any
Collateral granted hereunder or under the other Financing Agreements granted to
or held by Congress or Pledgee, (iv) the agreements and obligations of Pledgor
contained in the Existing Congress Agreement constitute the legal, valid and
binding obligations of Pledgor enforceable against Pledgor in accordance with
its respective terms, (v) Pledgee is entitled to all of the rights and remedies
provided for in the Existing Congress Agreement and (vi) the security interest,
lien and pledge of the Collateral in favor of Pledgee is and shall be deemed to
be continuously granted and perfected from the earliest date of the granting and
perfection of such liens and security interests, whether hereunder, under the
other Financing Agreements or the Existing Congress Agreement.
(c) Except as otherwise stated in Section 7(b) hereof and this Section
7(c), as of the date hereof, the terms, conditions, covenants, agreements,
representations and warranties set forth in the Existing Congress Agreement are
hereby replaced and superseded in their entirety by the terms, conditions,
covenants, agreements, representations and warranties set forth in this Pledge
Agreement and the other Financing Agreements, except that nothing contained
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herein or in the other Financing Agreements shall impair or adversely affect the
continuation of the liability of Pledgor for the Obligations heretofore incurred
during the Chapter 11 Cases and the security interests, liens and other
interests in the Collateral heretofore granted, pledged and/or assigned
(including during the Chapter 11 Cases) to Lenders or Pledgee. The amendment and
restatement contained herein shall not, in any manner, be construed to
constitute payment of, or impair, limit, cancel or extinguish, or constitute a
novation in respect of, the indebtedness and other obligations and liabilities
of Pledgor evidenced by or arising under the Existing Congress Agreement, and
the liens and security interests securing such indebtedness and other
obligations and liabilities, which shall not in any manner be impaired, limited,
terminated, waived or released.
(d) Pledgor, for itself and its successors and assigns, does hereby remise,
release, discharge and hold Lenders and Pledgee, and any of their respective
officers, directors, agents
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and employees and their respective predecessors, successors and assigns harmless
from all claims, demands, debts, sums of money, accounts, damages, judgments,
financial obligations, actions, causes of action, suits at law or in equity, of
any kind or nature whatsoever, whether or not now existing or known, which
Pledgor or its respective successors or assigns has had or may now or hereafter
claim to have against Congress or Pledgee or any of their respective officers,
directors, agents and employees and their respective predecessors, successors
and assigns in any way arising from or connected with the Existing Congress
Agreement or the arrangements set forth therein or transactions thereunder up to
and including the date hereof.
8. MISCELLANEOUS
(a) Pledgor agrees that at any time and from time to time upon the written
request of Pledgee, Pledgor shall execute and deliver such further documents,
including, but not limited to, irrevocable proxies or stock powers, in form
satisfactory to counsel for Pledgee, and will take or cause to be taken such
further acts as Pledgee may request in order to effect the purposes of this
Pledge Agreement and perfect or continue the perfection of the security interest
in the Collateral granted to Pledgee hereunder.
(b) Beyond the exercise of reasonable care to assure the safe custody of
the Collateral (whether such custody is exercised by Pledgee, or Pledgee's
nominee, agent or bailee) Pledgee or Pledgee's nominee agent or bailee shall
have no duty or liability to protect or preserve any rights pertaining thereto
and shall be relieved of all responsibility for the Collateral upon surrendering
it to Pledgor or foreclosure with respect thereto.
(c) All notices, requests and demands to or upon the respective parties
hereto shall be in writing and shall be deemed to have been duly given or made:
if delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
registered or certified mail, return receipt requested, five (5) days after
mailing. All notices, requests and demands upon the parties are to be given to
the following addresses or facsimile numbers (or to such other address or
facsimile number as any party may designate by notice in accordance with this
Section):
If to Pledgor: RBX Corporation
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
Fax No.: 000-000-0000
If to Pledgee: Congress Financial Corporation, as Collateral Agent
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Portfolio Manager
Fax No.: 000-000-0000
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(d) All references to the term "Chapter 11 Cases" wherever used herein
shall mean the Chapter 11 Cases of Pledgor and certain of its affiliates under
the Bankruptcy Code referred to as In re RBX Corporation, et al., Case No.
------------------------------
0-00-00000 (WRS), Jointly Administered, which were pending in the United States
Bankruptcy Court for the Western District of Virginia, Roanoke Division. All
references to the term "Bankruptcy Code" wherever used herein shall mean the
United States Bankruptcy Code, being Title 11 of the United States Code, as the
same now exists or may from time to time hereafter be amended, modified,
recodified or supplemented, together with all official rules, regulations and
interpretations thereunder or related thereto. All references to the plural
herein shall also mean the singular and to the singular shall also mean the
plural. All references to Pledgee, Pledgor, any Lender and Issuer pursuant to
the definitions set forth in the recitals hereto, or to any other person herein,
shall include their respective successors and assigns. The words "hereof,"
"herein," "hereunder," "this Pledge Agreement" and words of similar import when
used in this Pledge Agreement shall refer to this Pledge Agreement as a whole
and not any particular provision of this Pledge Agreement and as this Pledge
Agreement now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced. An Event of Default shall exist or
continue or be continuing until such Event of Default is waived in accordance
with Section 7(g) hereof or is cured in a manner satisfactory to Pledgee. All
references to the term "Person" or "Persons" herein shall mean any individual,
sole proprietorship, partnership, corporation (including, without limitation,
any corporation which elects subchapter S status under the Internal Revenue Code
of 1986, as amended), limited liability corporation, limited liability
participation, limited liability company, business trust, unincorporated
association, joint stock company, trust, joint venture or other entity or any
government or any agency, instrumentality or political subdivision thereof.
(e) This Pledge Agreement, the other Financing Agreements and any other
document referred to herein or therein shall be binding upon Pledgor and its
successors and assigns and inure to the benefit of Pledgee and Lenders and their
respective successors and assigns and be enforceable by Pledgee and its
successors and assigns.
(f) If any provision of this Pledge Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Pledge Agreement as a whole, but this Pledge Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
(g) Neither this Pledge Agreement nor any provision hereof shall be
amended, modified, waived or discharged orally or by course of conduct, but only
by a written agreement signed by an authorized officer of Pledgee. Pledgee and
Lenders shall not, by any act, delay, omission or otherwise be deemed to have
expressly or impliedly waived any of their rights, powers and/or remedies unless
such waiver shall be in writing and signed by an authorized officer of Pledgee
(and Lenders with respect to any waiver of an Event of Default). Any such waiver
shall be enforceable only to the extent specifically set forth therein. A waiver
by Pledgee or any Lender of any right, power and/or remedy on any one occasion
shall not be construed as a bar to or
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waiver of any such right, power and/or remedy which Pledgee or such Lender would
otherwise have on any future occasion, whether similar in kind or otherwise.
(h) In the event of any specific inconsistency between the terms of this
Pledge Agreement and the Confirmation Order, the terms, covenants,
representations, warranties or other provisions of the Confirmation Order shall
govern with respect to such specific inconsistency.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Pledgor has executed this Pledge Agreement as of the
day and year first above written.
RBX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------
Title: CRO and President
-----------------
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EXHIBIT A
TO
PLEDGE AND SECURITY AGREEMENT
Issuer Certificate No. Shares
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RBX Industries, Inc. 1 1000
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