SUBSIDIARY PLEDGE AGREEMENT
THIS SUBSIDIARY PLEDGE AGREEMENT (this "Agreement") dated as of September
25, 1996 is between NIEMAND HOLDINGS, INC., a Delaware corporation (the
"Pledgor"), and XXXXXX TRUST AND SAVINGS BANK, as agent for the Banks referred
to below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of even date herewith (as
amended or otherwise modified from time, the "Credit Agreement") among Gibraltar
Packaging Group, Inc. (the "Company"), various financial institutions (such
financial institutions, together with their respective successors and assigns,
collectively the "Banks" and individually each a "Bank") and the Agent, the
Banks have agreed to make loans to, and issue (or purchase participations in)
letters of credit for the account of, the Company from time to time; and
WHEREAS, the Pledgor has executed and delivered a guaranty (the
"Guaranty") of the obligations of the Company under the Credit Agreement; and
WHEREAS, the obligations of the Pledgor under the Guaranty are to be
secured pursuant to this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Company under or in
connection with the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. When used herein, the following terms shall have the
following meanings (such definitions to be applicable to both the singular and
plural forms of such terms):
Collateral - see Section 2.
Default means the occurrence of any of the following events: (a)
any Unmatured Event of Default under Section 12.1.4 of the Credit
Agreement; (b) any Event of Default; or (c) any warranty of the Pledgor
herein is untrue or misleading in any material respect.
Event of Default has the meaning assigned to such term in the
Credit Agreement.
Issuer means the issuer of any of the shares of stock or other
securities representing all or any of the Collateral.
Liabilities means all obligations (monetary or otherwise) of the
Pledgor under the Guaranty, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due.
Loan Document has the meaning assigned to such term in the Credit
Agreement.
Loan has the meaning assigned to such term in the Credit
Agreement.
Unmatured Event of Default has the meaning assigned to such term
in the Credit Agreement.
2. Pledge. As security for the payment of all Liabilities, the Pledgor
hereby pledges to the Agent, and grants to the Agent, a security interest in,
all of the following:
A. All of the shares of stock and other securities described in
Schedule I hereto, all of the certificates and/or instruments representing such
shares of stock and other securities, and all cash, securities, dividends,
rights and other property at any time and from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of such
shares or other securities;
B. All additional shares of stock of any of the Issuers listed in
Schedule I hereto at any time and from time to time acquired by the Pledgor in
any manner, all of the certificates representing such additional shares, and all
cash, securities, dividends, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares;
C. All other property hereafter delivered to the Agent in substitution
for or in addition to any of the foregoing, all certificates and instruments
representing or evidencing such property, and all cash, securities, interest,
dividends, rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
thereof; and
D. All products and proceeds of all of the foregoing.
All of the foregoing are herein collectively called the "Collateral".
The Pledgor agrees to deliver to the Agent, promptly upon
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receipt and in due form for transfer (i.e., endorsed in blank or accompanied by
stock or bond powers executed in blank), any Collateral which may at any time or
from time to time be in or come into the possession or control of the Pledgor;
and prior to the delivery thereof to the Agent, such Collateral shall be held by
the Pledgor separate and apart from its other property and in express trust for
the Agent.
3. Warranties; Further Assurances. The Pledgor warrants to the Agent and
each Bank that: (a) the Pledgor is (or at the time of any future delivery,
pledge, assignment or transfer thereof will be) the legal and equitable owner of
the Collateral free and clear of all liens, security interests and encumbrances
of every description whatsoever other than the security interest created
hereunder; (b) the pledge and delivery of the Collateral pursuant to this
Agreement will create a valid perfected security interest in the Collateral in
favor of the Agent; (c) all shares of stock referred to in Schedule I hereto are
duly authorized, validly issued, fully paid and non-assessable; (d) as to each
Issuer whose name appears in Schedule I hereto, the Collateral represents on the
date hereof not less than the applicable percent (as shown in Schedule I hereto)
of the total shares of capital stock issued and outstanding of such Issuer; and
(e) the information contained in Schedule I hereto is true and accurate in all
respects.
So long as any Loans shall be outstanding or any of the Liabilities shall
be outstanding or any commitment shall exist on the part of the Agent or any
Bank with respect to the making of any Loans or the creation of any Liabilities,
the Pledgor (i) shall not, without the express prior written consent of the
Agent, sell, assign, exchange, pledge or otherwise transfer, encumber, or grant
any option, warrant or other right to purchase the stock of any Issuer which is
pledged hereunder, or otherwise diminish or impair any of its rights in, to or
under any of the Collateral; (ii) shall execute such Uniform Commercial Code
financing statements and other documents (and pay the costs of filing and
recording or re-filing and re-recording the same in all public offices deemed
necessary or appropriate by the Agent) and do such other acts and things, all as
the Agent may from time to time reasonably request, to establish and maintain a
valid, perfected security interest in the Collateral (free of all other liens,
claims and rights of third parties whatsoever) to secure the performance and
payment of the Liabilities; (iii) will execute and deliver to the Agent such
stock powers and similar documents relating to the Collateral, satisfactory in
form and substance to the Agent, as the Agent may reasonably request; and (iv)
will furnish the Agent or any Bank such information concerning the Collateral as
the Agent or such Bank may from time to time reasonably request, and will permit
the Agent or any Bank or any designee of the Agent or any Bank, from time to
time at reasonable times and on reasonable notice, to
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inspect, audit and make copies of and extracts from all records and all other
papers in the possession of the Pledgor which pertain to the Collateral, and
will, upon request of the Agent at any time when a Default has occurred and is
continuing, deliver to the Agent all of such records and papers.
4. Holding in Name of Agent, etc. The Agent may from time to time after the
occurrence and during the continuance of a Default, without notice to the
Pledgor, take all or any of the following actions: (a) transfer all or any part
of the Collateral into the name of the Agent or any nominee or sub-agent for the
Agent, with or without disclosing that such Collateral is subject to the lien
and security interest hereunder, (b) appoint one or more sub-agents or nominees
for the purpose of retaining physical possession of the Collateral, (c) notify
the parties obligated on any of the Collateral to make payment to the Agent of
any amounts due or to become due thereunder, (d) endorse any checks, drafts or
other writings in the name of the Pledgor to allow collection of the Collateral,
(e) enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or renew
for any period (whether or not longer than the original period) any obligations
of any nature of any party with respect thereto, and (f) take control of any
proceeds of the Collateral.
5. Voting Rights, Dividends, etc. (a) Notwithstanding certain provisions of
Section 4 hereof, so long as the Agent has not given the notice referred to in
paragraph (b) below:
A. The Pledgor shall be entitled to exercise any and all voting or
consensual rights and powers and stock purchase or subscription rights
(but any such exercise by the Pledgor of stock purchase or subscription
rights may be made only from funds of the Pledgor not comprising part
of the Collateral) relating or pertaining to the Collateral or any part
thereof for any purpose; provided, however, that the Pledgor agrees
that it will not exercise any such right or power in any manner which
would have a material adverse effect on the value of the Collateral or
any part thereof.
B. The Pledgor shall be entitled to receive and retain any and all
lawful dividends payable in respect of the Collateral which are paid in
cash by any Issuer if such dividends are permitted by the Credit
Agreement, but all dividends and distributions in respect of the
Collateral or any part thereof made in shares of stock or other
property or representing any return of capital, whether resulting from
a subdivision, combination or reclassification of Collateral or any
part thereof or received in exchange for Collateral or any part thereof
or as a result of any merger, consolidation,
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acquisition or other exchange of assets to which any Issuer may be a
party or otherwise or as a result of any exercise of any stock purchase
or subscription right, shall be and become part of the Collateral
hereunder and, if received by the Pledgor, shall be forthwith delivered
to the Agent in due form for transfer (i.e., endorsed in blank or
accompanied by stock or bond powers executed in blank) to be held for
the purposes of this Agreement.
C. The Agent shall execute and deliver, or cause to be executed
and delivered, to the Pledgor, all such proxies, powers of attorney,
dividend orders and other instruments as the Pledgor may request for
the purpose of enabling the Pledgor to exercise the rights and powers
which it is entitled to exercise pursuant to clause (A) above and to
receive the dividends which it is authorized to retain pursuant to
clause (B) above.
(b) Upon notice from the Agent during the existence of a Default, and so
long as the same shall be continuing, all rights and powers which the Pledgor is
entitled to exercise pursuant to Section 5(a)(A) hereof, and all rights of the
Pledgor to receive and retain dividends pursuant to Section 5(a)(B) hereof,
shall forthwith cease, and all such rights and powers shall thereupon become
vested in the Agent which shall have, during the continuance of such Default,
the sole and exclusive authority to exercise such rights and powers and to
receive such dividends. Any and all money and other property paid over to or
received by the Agent pursuant to this paragraph (b) shall be retained by the
Agent as additional Collateral hereunder and applied in accordance with the
provisions hereof.
6. Remedies. Whenever a Default shall exist, the Agent may exercise from
time to time any rights and remedies available to it under the Uniform
Commercial Code as in effect in Illinois or otherwise available to it. Without
limiting the foregoing, whenever a Default shall exist the Agent (a) may, to the
fullest extent permitted by applicable law, without notice, advertisement,
hearing or process of law of any kind, (i) sell any or all of the Collateral,
free of all rights and claims of the Pledgor therein and thereto, at any public
or private sale or brokers' board and (ii) bid for and purchase any or all of
the Collateral at any such public sale and (b) shall have the right, for and in
the name, place and stead of the Pledgor, to execute endorsements, assignments,
stock powers and other instruments of conveyance or transfer with respect to all
or any of the Collateral. The Pledgor hereby expressly waives, to the fullest
extent permitted by applicable law, any and all notices, advertisements,
hearings or process of law in connection with the exercise by the Agent of any
of its rights and remedies during the continuance of a Default. If
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any notification of intended disposition of any of the Collateral is required by
law, such notification, if mailed, shall be deemed reasonably and properly given
if mailed at least ten (10) days before such disposition, postage prepaid,
addressed to the Pledgor, either at the address of the Pledgor shown below, or
at any other address of the Pledgor appearing on the records of the Agent. Any
proceeds of any of the Collateral may be applied by the Agent to the payment of
expenses in connection with the Collateral, including, without limitation,
reasonable attorneys' fees and legal expenses, and any balance of such proceeds
may be applied by the Agent toward the payment of such of the Liabilities, and
in such order of application, as the Agent may from time to time elect (and,
after payment in full of all Liabilities, any excess shall be delivered to the
Pledgor or as a court of competent jurisdiction shall direct).
The Agent is hereby authorized to comply with any limitation or restriction
in connection with any sale of Collateral as it may be advised by counsel is
necessary in order to (a) avoid any violation of applicable law (including,
without limitation, compliance with such procedures as may restrict the number
of prospective bidders and purchasers and/or further restrict such prospective
bidders or purchasers to Persons who will represent and agree that they are
purchasing for their own account for investment and not with a view to the
distribution or resale of such Collateral) or (b) obtain any required approval
of the sale or of the purchase by any governmental regulatory authority or
official, and the Pledgor agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner and that the Agent shall not be liable or accountable to the
Pledgor for any discount allowed by reason of the fact that such Collateral is
sold in compliance with any such limitation or restriction.
7. General. The Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if it takes such action for that
purpose as the Pledgor shall request in writing, but failure of the Agent to
comply with any such request shall not of itself be deemed a failure to exercise
reasonable care, and no failure of the Agent to preserve or protect any rights
with respect to the Collateral against prior parties, or to do any act with
respect to preservation of the Collateral not so requested by the Pledgor, shall
be deemed a failure to exercise reasonable care in the custody or preservation
of any Collateral.
No delay on the part of the Agent in exercising any right, power or remedy
shall operate as a waiver thereof, and no single or partial exercise of any such
right, power or remedy shall preclude any other or further exercise thereof, or
the exercise of any other right, power or remedy. No amendment, modification or
waiver of,
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or consent with respect to, any provision of this Agreement shall be effective
unless the same shall be in writing and signed and delivered by the Agent, and
then such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
All obligations of the Pledgor and all rights, powers and remedies of the
Agent and the Banks expressed herein are in addition to all other rights, powers
and remedies possessed by them, including, without limitation, those provided by
applicable law or in any other written instrument or agreement relating to any
of the Liabilities or any security therefor.
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State of
Illinois. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
This Agreement shall be binding upon the Pledgor and the Agent and their
respective successors and assigns, and shall inure to the benefit of the Pledgor
and the Agent and the successors and assigns of the Agent.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together constitute
but one and the same Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE PLEDGOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE PLEDGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS OF THE PLEDGOR SHOWN BELOW OR AT ANY OTHER ADDRESS OF
THE PLEDGOR APPEARING ON THE RECORDS OF THE AGENT, OR BY PERSONAL SERVICE WITHIN
OR WITHOUT THE STATE OF
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ILLINOIS. THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE PLEDGOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
EACH OF THE PLEDGOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING
FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
SIGNATURES BEGIN ON THE NEXT PAGE
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as
of the day and year first written above.
NIEMAND HOLDINGS, INC.
Address:
000 Xxxxxxxxx Xxxxxx By: /s/ X X Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Title: President
Attention: ____________________
XXXXXX TRUST AND SAVINGS BANK,
as Agent
Address:
000 Xxxx Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
--------------------
Xxxxxxx, Xxxxxxxx 00000 Vice President
Attention: _John X. Xxxxxx
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SCHEDULE I
TO
SUBSIDIARY PLEDGE AGREEMENT
STOCK
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Issuer No. Shares and Outstanding Outstanding
Niemand Industries, 2 3,000 100% 3,000
Inc.
