Exhibit 10.8
PLEDGE AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of August 30, 2002, made by
Anchor Glass Container Holding LLC, a Delaware limited liability corporation
(the "Pledgor"), in favor of Ableco Finance LLC, a Delaware limited liability
company, in its capacity as agent (in such capacity, the "Agent") on behalf of
the Lenders referred to below.
W I T N E S S E T H:
WHEREAS, Anchor Glass Container Corporation, a Delaware corporation
(the "Borrower"), the financial institutions from time to time party thereto
(each a "Lender" and collectively, the "Lenders"), and the Agent are parties to
a Term Loan Agreement, dated as of August 30, 2002 (such agreement, as amended,
restated or otherwise modified from time to time, being hereinafter referred to
as the "Term Loan Agreement"), pursuant to which the Lenders have agreed to make
certain term loans (collectively, the "Loans") to the Borrowers;
WHEREAS, it is a condition precedent to the making of any Loan by the
Lenders pursuant to the Term Loan Agreement that the Pledgor shall have executed
and delivered to the Agent a pledge and security agreement providing for the
pledge to the Agent, for the benefit of the Lenders, and the grant to the Agent,
for the benefit of the Lenders, of a security interest in and Lien on the
outstanding shares of Capital Stock (as defined in the Term Loan Agreement)
owned by the Pledgor of each Person now or hereafter existing and in which the
Pledgor has any interest at any time;
WHEREAS, the Pledgor has determined that the execution, delivery and
performance of this Agreement directly benefits, and is in the best interest of
the Pledgor;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Lenders to make and maintain the Loans
pursuant to the Term Loan Agreement, the Pledgor hereby jointly and severally
agrees with the Agent, for the benefit of the Lenders, as follows:
SECTION 1. Definitions. Reference is hereby made to the Term Loan
Agreement for a statement of the terms thereof. All terms used in this Agreement
which are defined in the Term Loan Agreement or in Article 8 or Article 9 of the
Uniform Commercial Code (the "Code") in effect from time to time in the State of
New York and which are not otherwise defined herein shall have the same meanings
herein as set forth therein; provided, that terms used herein which are defined
in the Code as in effect in the State of New York on the date hereof shall
continue to have the same meaning notwithstanding any replacement or amendment
of such statute except as the Agent may otherwise determine.
SECTION 2. Pledge and Grant of Security Interest. As collateral
security for all of the Obligations (as defined in Section 3 hereof), the
Pledgor hereby pledges and assigns to the Agent, for the benefit of the Lenders,
a continuing security interest in and Lien on the Pledgor's right, title and
interest in and to the following (the "Pledged Collateral"):;
(a) the shares of stock, partnership interests, member
interests and other equity interests described in Schedule I hereto (the
"Pledged Shares"), whether or not
evidenced or represented by any stock certificate, certificated security or
other instrument, issued by the Persons described in such Schedule I (the
"Existing Issuers"), the certificates representing the Pledged Shares, all
options and other rights, contractual or otherwise, in respect thereof and all
dividends, distributions, cash, instruments, investment property and other
property (including but not limited to, any stock dividend and any distribution
in connection with a stock split) from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Shares;
(b) all Capital Stock of the Pledgor, and all other assets now
or hereafter received or receivable with respect to the foregoing;
(c) all security entitlements of the Pledgor in any and all of
the foregoing; and
(d) all proceeds (including proceeds of proceeds) of any and
all of the foregoing;
in each case, whether now owned or hereafter acquired by the Pledgor and
howsoever its interest therein may arise or appear (whether by ownership,
security interest, Lien, claim or otherwise).
SECTION 3. Security for Obligations. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter incurred
(the "Obligations"):
(a) the prompt payment by the Borrower, as and when due and
payable (by scheduled maturity, required prepayment, acceleration, demand or
otherwise), of all amounts from time to time owing by the Borrower to the Agent
or the Lenders in respect of the Term Loan Agreement and all other Loan
Documents, including, without limitation, (i) principal of and interest on the
Loans (including, without limitation, all interest that accrues after the
commencement of any Insolvency Proceeding of the Borrower whether or not the
payment of such interest is unenforceable or is not allowable due to the
existence of such Insolvency Proceeding), (ii) in the case of the Pledgor, all
amounts from time to time owing by the Pledgor in respect of its obligations,
including all obligations secured by this Agreement and (iii) all fees,
commissions, expense reimbursements, indemnifications and all other amounts due
or to become due under the Term Loan Agreement and any other Loan Document; and
(b) the due performance and observance by each of the Borrower
and the Pledgor of all of its obligations from time to time existing in respect
of the Term Loan Agreement and all other Loan Documents to which it is a party.
SECTION 4. Delivery of the Pledged Collateral.
(a) (i) All certificates currently representing the Pledged
Shares shall be delivered to the Agent on or prior to the execution and delivery
of this Agreement. All other certificates and instruments constituting Pledged
Collateral from time to time required to be pledged to the Agent pursuant to the
terms hereof (the "Additional Collateral") shall be delivered to the Agent
promptly upon receipt thereof by or on behalf of the Pledgor. All such
certificates and instruments shall be held by or on behalf of the Agent pursuant
hereto and shall be delivered
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in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment or undated stock powers executed
in blank, all in form and substance satisfactory to the Agent. If any Pledged
Collateral consists of uncertificated securities, unless the immediately
following sentence is applicable thereto, the Pledgor shall cause the Agent (or
its custodian, nominee or other designee) to become the registered holder
thereof, or cause each issuer of such securities to agree that it will comply
with instructions originated by the Agent with respect to such securities
without further consent by the Pledgor. If any Pledged Collateral consists of
security entitlements, the Pledgor shall transfer such security entitlements to
the Agent (or its custodian, nominee or other designee) or cause the applicable
securities intermediary to agree that it will comply with entitlement orders by
the Agent without further consent by the Pledgor.
(b) If the Pledgor shall receive, by virtue of the Pledgor's
being or having been an owner of any Pledged Collateral, any (i) stock
certificate (including, without limitation, any certificate representing a stock
dividend or distribution in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets, combination of
shares, stock split, spin-off or split-off), or other instrument, (ii) option or
right, whether as an addition to, substitution for, or in exchange for, any
Pledged Collateral, or otherwise, (iii) dividends payable in cash (except such
dividends permitted to be retained by the Pledgor pursuant to Section 7 hereof)
or in securities or other property or (iv) dividends or other distributions in
connection with a partial or total liquidation or dissolution or in connection
with a reduction of capital, capital surplus or paid-in surplus, the Pledgor
shall receive such stock certificate, instrument, option, right, payment or
distribution in trust for the benefit of the Agent, shall segregate it from the
Pledgor's other property and shall deliver it forthwith to the Agent, in the
exact form received, with any necessary endorsement and/or appropriate stock
powers duly executed in blank, to be held by the Agent as Pledged Collateral and
as further collateral security for the Obligations.
SECTION 5. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor (i) is a limited liability company duly
organized, validly existing and in good standing under the laws of the state or
jurisdiction of its organization, and (ii) has all requisite power and authority
to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance by the Pledgor of
this Agreement (i) has been duly authorized by all necessary action, (ii) does
not and will not contravene its certificate of formation, its limited liability
company or operating agreement, or any applicable law or any contractual
restriction binding on or affecting it or any of its properties, and (iii) does
not and will not result in or require the creation of any Lien upon or with
respect to any of its properties other than pursuant to this Agreement.
(c) The Existing Issuer set forth in Schedule I hereto is the
Pledgor's only Subsidiary existing on the date hereof. The Pledged Shares have
been duly authorized and validly issued and are fully paid and nonassessable and
the holders thereof are not entitled to any preemptive, first refusal or other
similar rights. Except as noted in Schedule I hereto, the
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Pledged Shares constitute 94% of the issued and outstanding shares of Capital
Stock of the Existing Issuer as of the date hereof. All other shares of stock
constituting Pledged Collateral will be duly authorized and validly issued,
fully paid and nonassessable.
(d) The Pledgor is and will be at all times the legal and
beneficial owner of its Pledged Collateral free and clear of all Liens, except
for the Lien created by this Agreement and Permitted Liens.
(e) The exercise by the Agent of any of its rights and remedies
in accordance with the terms of this Agreement will not contravene any law or
any contractual restriction binding on or affecting the Pledgor or any of the
properties of the Pledgor and will not result in or require the creation of any
Lien upon or with respect to any of the properties of the Pledgor other than
pursuant to this Agreement or the other Loan Documents.
(f) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required to be obtained
or made by the Pledgor for (i) the due execution, delivery and performance by
the Pledgor of this Agreement, (ii) the grant by the Pledgor, or the perfection,
of the Lien created hereby in the Pledged Collateral or (iii) the exercise by
the Agent of any of its rights and remedies hereunder, except as may be required
in connection with any sale of any Pledged Collateral by laws affecting the
offering and sale of securities generally.
(g) This Agreement creates a valid Lien in favor of the Agent
in the Pledged Collateral as security for the Obligations. The Agent's having
possession of the certificates representing the Pledged Shares and all other
certificates, instruments and cash constituting Pledged Collateral from time to
time results in the perfection of such Lien. Such Lien is, or in the case of
Pledged Collateral in which the Pledgor obtains rights after the date hereof,
will be, a perfected, first priority Lien, subject only to Permitted Liens. All
action necessary or desirable to perfect and protect such Lien has been duly
taken, except for the Agent's having possession of certificates, instruments and
cash constituting Pledged Collateral after the date hereof.
SECTION 6. Covenants as to the Pledged Collateral. So long as any
Obligation shall remain outstanding, the Pledgor will, unless the Agent shall
otherwise consent in writing:
(a) keep adequate records concerning the Pledged Collateral and
permit the Agent or any agents, designees or representatives thereof at any time
or from time to time to examine and make copies of and abstracts from such
records pursuant to the terms of the Term Loan Agreement;
(b) at the Pledgor's expense, promptly deliver to the Agent a
copy of each notice or other communication received by it in respect of the
Pledged Collateral;
(c) at the Pledgor's expense, defend the Agent's right, title
and security interest in and to the Pledged Collateral against the claims of any
Person;
(d) at the Pledgor's expense, at any time and from time to
time, promptly execute and deliver all further instruments and documents and
take all further action
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that may be necessary or desirable or that the Agent may reasonably request in
order to (i) perfect and protect, or maintain the perfection of, the security
interest and Lien created hereby, (ii) enable the Agent to exercise and enforce
its rights and remedies hereunder in respect of the Pledged Collateral or (iii)
otherwise effect the purposes of this Agreement, including, without limitation,
delivering to the Agent, after the occurrence and during the continuation of an
Event of Default, irrevocable proxies in respect of the Pledged Collateral;
(e) not sell, assign (by operation of law or otherwise),
exchange or otherwise dispose of any Pledged Collateral or any interest therein
except as expressly permitted by Section 6.02 of the Term Loan Agreement or
otherwise permitted by the Agent;
(f) not create or suffer to exist any Lien upon or with respect
to any Pledged Collateral, except for the Lien created hereby and any Permitted
Liens;
(g) not make or consent to any amendment or other modification
or waiver with respect to any Pledged Collateral or enter into any agreement or
permit to exist any restriction with respect to any Pledged Collateral other
than pursuant to the Loan Documents;
(h) not permit the issuance of (i) any additional shares of any
class of Capital Stock of the Existing Issuer, (ii) any securities convertible
voluntarily by the holder thereof or automatically upon the occurrence or
non-occurrence of any event or condition into, or exchangeable for, any such
shares of Capital Stock or (iii) any warrants, options, contracts or other
commitments entitling any Person to purchase or otherwise acquire any such
shares of Capital Stock; and
(i) not take or fail to take any action which would in any
manner impair the value or enforceability of the Agent's security interest in
and Lien on any Pledged Collateral.
SECTION 7. Voting Rights, Dividends, Etc. in Respect of the Pledged
Collateral.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) the Pledgor may exercise any and all voting and
other consensual rights pertaining to any Pledged Collateral for any purpose not
inconsistent with the terms of this Agreement, the Term Loan Agreement or the
other Loan Documents; provided, however, that (A) the Pledgor shall not exercise
or refrain from exercising any such right, as the case may be, if the Agent
gives it notice that, in the Agent's judgment, such action (or inaction) could
reasonably be expected to have a Material Adverse Effect and (B) the Pledgor
will give the Agent at least five (5) Business Days' notice of the manner in
which it intends to exercise, or the reasons for refraining from exercising, any
such right which could reasonably be expected to have a Material Adverse Effect;
(ii) the Pledgor may receive and retain any and all
dividends, interest payments or other distributions paid in respect of the
Pledged Collateral to the extent permitted by the Term Loan Agreement; provided,
however, that any and all (A) dividends and
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interest paid or payable other than in cash in respect of, and instruments and
other property received, receivable or otherwise distributed in respect of or in
exchange for, any Pledged Collateral, (B) dividends and other distributions paid
or payable in cash in respect of any Pledged Collateral in connection with a
partial or total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus, and (C) cash paid, payable or
otherwise distributed in redemption of, or in exchange for, any Pledged
Collateral, together with any dividend, interest payment or other distribution
which at the time of such dividend, interest payment or other distribution was
not permitted by the Term Loan Agreement, shall be, and shall forthwith be
delivered to the Agent to hold as, Pledged Collateral and shall, if received by
the Pledgor, be received in trust for the benefit of the Agent, shall be
segregated from the other property or funds of the Pledgor, and shall be
forthwith delivered to the Agent in the exact form received with any necessary
endorsement and/or appropriate stock powers duly executed in blank, to be held
by the Agent as Pledged Collateral and as further collateral security for the
Obligations; and
(iii) the Agent will execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the voting and other rights which it is entitled to exercise pursuant
to Section 7(a)(i) hereof and to receive the dividends, interest and/or other
distributions which it is authorized to receive and retain pursuant to Section
7(a)(ii) hereof.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) all rights of the Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to exercise
pursuant to Section 7(a)(i) hereof, and to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain pursuant
to Section 7(a)(ii) hereof, shall cease, and all such rights shall thereupon
become vested in the Agent, which shall thereupon have the sole right to
exercise such voting and other consensual rights and to receive and hold as
Pledged Collateral such dividends and interest payments;
(ii) without limiting the generality of the foregoing,
the Agent may at its option exercise any and all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any of the
Pledged Collateral as if it were the absolute owner thereof, including, without
limitation, the right to exchange, in its discretion, any and all of the Pledged
Collateral upon the merger, consolidation, reorganization, recapitalization or
other adjustment of the Existing Issuer, or upon the exercise by the Existing
Issuer of any right, privilege or option pertaining to any Pledged Collateral,
and, in connection therewith, to deposit and deliver any and all of the Pledged
Collateral with any committee, depository, transfer agent, registrar or other
designated agent upon such terms and conditions as it may determine; and
(iii) all dividends, distributions, interest and other
payments which are received by the Pledgor contrary to the provisions of Section
7(b)(i) hereof shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of the Pledgor, and shall be forthwith paid over to
the Agent as Pledged Collateral in the exact form received
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with any necessary endorsement and/or appropriate stock powers duly executed in
blank, to be held by the Agent as Pledged Collateral and as further collateral
security for the Obligations.
SECTION 8. Additional Provisions Concerning the Pledged Collateral.
(a) To the maximum extent permitted by applicable law, the
Pledgor (i) authorizes the Agent during the continuance of an Event of Default
to execute any such agreements, instruments or other documents in the Pledgor's
name and to file such agreements, instruments or other documents in the
Pledgor's name in any appropriate filing office, (ii) authorizes the Agent to
file any financing statements required hereunder or under any other Loan
Document, and any continuation statements or amendments with respect thereto, in
any appropriate filing office without the signature of the Pledgor and (iii)
ratifies the filing of any financing statement, and any continuation statement
or amendment with respect thereto, filed without the signature of the Pledgor
prior to the date hereof. A photocopy or other reproduction of this Agreement or
any financing statement covering the Pledge Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(b) The Pledgor hereby irrevocably appoints the Agent as the
Pledgor's attorney-in-fact and proxy, with full authority in the place and stead
of the Pledgor and in the name of the Pledgor or otherwise, from time to time in
the Agent's discretion, to take any action and to execute any instrument which
the Agent may deem necessary or advisable to accomplish the purposes of this
Agreement (subject to the rights of the Pledgor under Section 7(a) hereof),
including, without limitation, to receive, endorse and collect all instruments
made payable to the Pledgor representing any dividend, interest payment or other
distribution in respect of any Pledged Collateral and to give full discharge for
the same. This power is coupled with an interest and is irrevocable until all of
the Obligations are paid in full after the termination of all of the
Commitments.
(c) If the Pledgor fails to perform any agreement or obligation
contained herein, the Agent itself may perform, or cause performance of, such
agreement or obligation, and the expenses of the Agent incurred in connection
therewith shall be payable by the Pledgor pursuant to Section 10 hereof and
shall be secured by the Pledged Collateral.
(d) The powers conferred on the Agent hereunder are solely to
protect its interest in the Pledged Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any Pledged
Collateral in its possession and the accounting for monies actually received by
it hereunder, the Agent shall have no duty as to any Pledged Collateral or as to
the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Pledged Collateral and shall be relieved of
all responsibility for the Pledged Collateral upon surrendering it or tendering
surrender of it to the Pledgor. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collateral is accorded treatment substantially equal
to that which the Agent accords its own property, it being understood that the
Agent shall not have responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Pledged Collateral, whether or not the Agent has or is deemed to
have knowledge of such
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matters or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral.
(e) The Agent may in its discretion at any time after the
occurrence and during the continuation of an Event of Default (i) without notice
to the Pledgor, transfer or register in the name of the Agent or any of its
nominees any or all of the Pledged Collateral, subject only to the revocable
rights of the Pledgor under Section 7(a) hereof and (ii) exchange certificates
or instruments constituting Pledged Collateral for certificates or instruments
of smaller or larger denominations.
SECTION 9. Remedies Upon Default. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged
Collateral, in addition to any other rights and remedies provided for herein or
otherwise available to it, all of the rights and remedies of a secured party on
default under the Code then in effect in the State of New York; and without
limiting the generality of the foregoing and without notice except as specified
below, sell the Pledged Collateral or any part thereof in one or more parcels at
public or private sale, at any exchange or broker's board or elsewhere, at such
price or prices and on such other terms as the Agent may deem commercially
reasonable. The Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days' notice to the Pledgor of the time and
place of any public sale of Pledged Collateral owned by the Pledgor or the time
after which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of Pledged
Collateral regardless of whether or not notice of sale has been given. The Agent
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) In the event that the Agent determines to exercise its
right to sell all or any part of the Pledged Collateral pursuant to Section 9(a)
hereof, the Pledgor will, at the Pledgor's expense and upon request by the
Agent: (i) execute and deliver, and cause each issuer of such Pledged Collateral
and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and
things, as may be necessary or, in the opinion of the Agent, advisable to
register such Pledged Collateral under the provisions of the Securities Act of
1933, as amended (the "Securities Act"), and to cause the registration statement
relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the opinion of the
Agent, 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, (ii) cause each issuer of such Pledged Collateral
to qualify such Pledged Collateral under the state securities or "Blue Sky" laws
of each jurisdiction, and to obtain all necessary governmental approvals for the
sale of the Pledged Collateral, as requested by the Agent, (iii) cause the
Existing Issuer to make available to its securityholders, as soon as
practicable, an earnings statement which will satisfy the provisions of Section
11(a) of the Securities Act, and (iv) do or cause to be done all such other acts
and things as may be necessary to make such sale of such Pledged Collateral
valid and binding and in compliance with applicable law. The Pledgor
acknowledges the impossibility of ascertaining the
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amount of damages which would be suffered by the Agent by reason of the failure
by the Pledgor to perform any of the covenants contained in this Section 9(b)
and, consequently, agrees that, if the Pledgor fails to perform any of such
covenants, it shall pay, as liquidated damages and not as a penalty, an amount
equal to the value of the Pledged Collateral on the date the Agent demands
compliance with this Section 9(b); provided, however, that the payment of such
amount shall not release the Pledgor from any of its obligations under any of
the other Loan Documents.
(c) Notwithstanding the provisions of Section 9(b) hereof, the
Pledgor recognizes that the Agent may deem it impracticable to effect a public
sale of all or any part of the Pledged Shares or any other securities
constituting Pledged Collateral and that the Agent may, therefore, determine to
make one or more private sales of any such securities to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire such
securities for their own account, for investment and not with a view to the
distribution or resale thereof. The Pledgor acknowledges that any such private
sale may be at prices and on terms less favorable to the seller than the prices
and other terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sales shall be deemed to
have been made in a commercially reasonable manner and that the Agent shall have
no obligation to delay the sale of any such securities for the period of time
necessary to permit the issuer of such securities to register such securities
for public sale under the Securities Act. The Pledgor further acknowledges and
agrees that any offer to sell such securities which has been (i) publicly
advertised on a bona fide basis in a newspaper or other publication of general
circulation in the financial community of New York, New York (to the extent that
such an offer may be so advertised without prior registration under the
Securities Act) or (ii) made privately in the manner described above to not less
than fifteen bona fide offerees shall be deemed to involve a "public
disposition" for the purposes of Section 9-610(c) of the Code (or any successor
or similar, applicable statutory provision) as then in effect in the State of
New York, notwithstanding that such sale may not constitute a "public offering"
under the Securities Act, and that the Agent may, in such event, bid for the
purchase of such securities.
(d) Any cash held by the Agent as Pledged Collateral and all
cash proceeds received by the Agent in respect of any sale of, collection from,
or other realization upon, all or any part of the Pledged Collateral may, in the
discretion of the Agent, be held by the Agent as collateral for, and/or then or
at any time thereafter applied (after payment of any amounts payable to the
Agent pursuant to Section 10 hereof) in whole or in part by the Agent against,
all or any part of the Obligations in such order as the Agent shall elect
consistent with the provisions of the Term Loan Agreement. Any surplus of such
cash or cash proceeds held by the Agent and remaining after payment in full of
all of the Obligations after all Commitments have been terminated shall be paid
over to the Pledgor or to such Person as may be lawfully entitled to receive
such surplus.
(e) In the event that the proceeds of any such sale, collection
or realization are insufficient to pay all amounts to which the Agent is legally
entitled, the Pledgor shall be liable for the deficiency, together with interest
thereon at the highest rate specified in the Term Loan Agreement for interest on
overdue principal thereof or such other rate as shall be fixed by applicable
law, together with the costs of collection and the reasonable fees, costs and
expenses of any attorneys employed by the Agent to collect such deficiency.
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SECTION 10. Indemnity and Expenses.
(a) The Pledgor agrees to indemnify and hold harmless the Agent
(and all of its respective officers, directors, employees, attorneys,
consultants and agents) from and against any and all claims, damages, losses,
liabilities obligations, penalties, costs and expenses (including, without
limitation, reasonable legal fees and disbursements of counsel) to the extent
that they arise out of or otherwise result from this Agreement (including,
without limitation, enforcement of this Agreement), except, as to any such
indemnified Person, claims, losses or liabilities resulting solely and directly
from such Person's gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction.
(b) The Pledgor agrees to pay to the Agent upon demand the
amount of any and all costs and expenses, including the reasonable fees and
disbursements of the Agent's counsel and of any experts and agents, which the
Agent may incur in connection with (i) the preparation, negotiation, execution,
delivery, recordation, administration, amendment, waiver or other modification
or termination of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
the Agent hereunder, or (iv) the failure by the Pledgor to perform or observe
any of the provisions hereof.
SECTION 11. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing and shall be mailed (by certified mail,
postage prepaid and return receipt requested), telecopied or delivered, if to
the Pledgor, to it at the address provided on the signature page hereof; if to
the Agent, to it at the address specified in the Term Loan Agreement; or as to
either such Person at such other address as shall be designated by such Person
in a written notice to such other Person complying as to delivery with the terms
of this Section 11. All such notices and other communications shall be effective
(i) if mailed, when received or three (3) days after deposited in the mails,
whichever occurs first, (ii) if telecopied, when transmitted and confirmation
received, or (iii) if delivered, upon delivery.
SECTION 12. Security Interest Absolute. All rights of the Agent and the
Lenders, all Liens and all obligations of the Pledgor hereunder shall be
absolute and unconditional irrespective of: (i) any lack of validity or
enforceability of the Term Loan Agreement or any other agreement or instrument
relating thereto, (ii) any change in the time, manner or place of payment of, or
in any other term in respect of, all or any of the Obligations, or any other
amendment or waiver of or consent to any departure from the Term Loan Agreement
or any other Loan Document, (iii) any exchange or release of, or non-perfection
of any Lien on any Collateral, or any release or amendment or waiver of, or
consent to departure from, any guaranty for all or any of the Obligations, or
(iv) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the Pledgor in respect of the Obligations. All
authorizations and agencies contained herein with respect to any of the Pledged
Collateral are irrevocable and powers coupled with an interest.
SECTION 13. Miscellaneous.
(a) No amendment of any provision of this Agreement shall be
effective unless it is in writing and signed by the Agent, and no waiver of any
provision of this
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Agreement, and no consent to any departure by the Pledgor therefrom, shall be
effective unless it is in writing and signed by the Agent, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No failure on the part of the Agent or the Lenders to
exercise, and no delay in exercising, any right hereunder or under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The rights and remedies of the Agent and the
Lenders provided herein and in the Loan Documents are cumulative and are in
addition to, and not exclusive of, any other rights or remedies provided by law.
The rights of the Agent and the Lenders under the applicable Loan Document
against any party thereto are not conditional or contingent on any attempt by
the Agent or the Lenders to exercise any of their rights under any other
document against such party or against any other Person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest
in and Lien on the Pledged Collateral and shall (i) remain in full force and
effect until the payment in full or release of the Obligations after the
termination of all of the Commitment and the Loan and (ii) be binding on the
Pledgor and, by its acceptance hereof, the Agent, and its respective successors
and assigns, and shall inure, together with all rights and remedies of the Agent
and the Lenders hereunder, to the benefit of the Agent and the Lenders and their
respective successors, transferees and assigns. Without limiting the generality
of clause (ii) of the immediately preceding sentence, the Agent and the Lenders
may assign or otherwise transfer their respective rights and obligations under
this Agreement and any other Loan Document to any other Person, and such other
Person shall thereupon become vested with all of the benefits in respect thereof
granted to the Agent and the Lenders herein or otherwise. Upon any such
assignment or transfer, all references in this Agreement to the Agent or any
such Lender shall mean the assignee of the Agent or such Lender. None of the
rights or obligations of the Pledgor hereunder may be assigned or otherwise
transferred without the prior written consent of the Agent, and any such
assignment or transfer shall be null and void.
(e) Upon the satisfaction in full of the Obligations after the
termination of the Commitment and the Loan (i) this Agreement and the security
interest and Lien created hereby shall terminate and all rights to the Pledged
Collateral shall revert to the Pledgor and (ii) the Agent will, upon the
Pledgor's request and at the Pledgor's expense, (A) return to the Pledgor such
of the Pledged Collateral as shall not have been sold or otherwise disposed of
or applied pursuant to the terms hereof and (B) execute and deliver to the
Pledgor, without recourse, representation or warranty, such documents as the
Pledgor shall reasonably request to evidence such termination.
(f) This Agreement shall be governed by and construed in
accordance with the law of the State of New York, except as required by
mandatory provisions of law and except to the extent that the validity and
perfection or the perfection and the effect of perfection
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or non-perfection of the security interest and Lien created hereby, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
law of a jurisdiction other than the State of New York.
(g) This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed an original, but all such counterparts shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the Pledgor has caused this Agreement to
be executed and delivered by its duly authorized officer as of the date first
above written.
PLEDGOR:
ANCHOR GLASS CONTAINER HOLDING LLC
By: CERBERUS PARTNERS, L.P.,
its Managing Member
By: Cerberus Associates, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Authorized Signatory
