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EXHIBIT 4.3
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Pledge Agreement")
is entered into as October 2, 1997 among IPC, INC., a Delaware corporation (the
"Borrower"), IVEX PACKAGING CORPORATION, a Delaware corporation ("Holdings"),
each of the Domestic Subsidiaries of the Borrower (the Borrower's Domestic
Subsidiaries, together with Holdings, individually a "Guarantor" and
collectively the "Guarantors"), BANKERS TRUST COMPANY, in its capacity as
documentation agent (in such capacity, the "Documentation Agent") and
NATIONSBANK, N.A., in its capacity as collateral agent (in such capacity, the
"Collateral Agent") for the lenders from time to time party to the Credit
Agreement described below (the "Lenders").
RECITALS
WHEREAS, the Borrower, the Guarantors, the lenders party thereto and
NationsBank, N.A., as agent entered into that certain Amended and Restated
Credit Agreement dated as of March 24, 1997 which provided a $205 million
credit facility to the Borrower (the "Prior Credit Agreement"). The credit
facility provided pursuant to the Prior Credit Agreement replaced and
refinanced the credit facilities provided to the Borrower by NationsBank, N.A.,
as agent and certain other lenders pursuant to a credit agreement dated as of
December 7, 1995.
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide and the Lenders have agreed to provide a new amended and restated
senior secured credit facility to replace and refinance the credit facility
provided pursuant to the Prior Credit Agreement. Specifically, the Borrower
and the Guarantors have requested that, among other things, the new amended and
restated senior secured credit facility (i) provide up to $475 million of
indebtedness to the Borrower and (ii) extend the final maturity of the credit
facilities provided under the Prior Credit Agreement.
WHEREAS, the Prior Credit Agreement has been amended and restated
pursuant to that certain Amended and Restated Credit Agreement, dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to
time, the "Credit Agreement"), among the Borrower, the Guarantors, the Lenders,
the Documentation Agent and the Collateral Agent, in its capacity as
administrative agent.
WHEREAS, the Lenders have required that the Borrower and the
Guarantors (the Guarantors together with the Borrower, individually a
"Pledgor", and collectively the "Pledgors") secure or resecure, as applicable,
their respective obligations under the Credit Agreement and the other Credit
Documents in accordance with the terms of this Pledge Agreement.
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NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings ascribed to such terms in the Credit Agreement.
For purposes of this Pledge Agreement, the term "Lender" shall include any
Affiliate of any Lender which has entered into a Hedging Agreement with the
Borrower.
2. Pledge and Grant of Security Interest. To secure the prompt
payment and performance in full when due, whether by lapse of time or
otherwise, of the Pledgor Obligations (as defined in Section 3 hereof), each
Pledgor hereby pledges and assigns to the Collateral Agent, for the benefit of
the Lenders, and grants to the Collateral Agent, for the benefit of the
Lenders, a continuing security interest (and, as applicable, acknowledges and
reaffirms any prior pledge, assignment and/or security interest granted in
favor of the Collateral Agent, for the benefit of the Lenders) in any and all
right, title and interest of such Pledgor in and to the following, whether now
owned or existing or owned, acquired, or arising hereafter (collectively, the
"Pledged Collateral"):
(a) Pledged Shares. (i) 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
capital stock owned by such Pledgor of each Domestic Subsidiary (as
set forth on Schedule 2(a) attached hereto) and (ii) 65% (or, if less,
the full amount owned by such Pledgor) of the issued and outstanding
shares of each class of capital stock or other ownership interests
entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) ("Voting Equity") and 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
each class of capital stock or other ownership interests not entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
("Non-Voting Equity") owned by such Pledgor of each First Tier Foreign
Subsidiary (as set forth on Schedule 2(a) attached hereto), in each
case together with the certificates (or other agreements or
instruments), if any, representing such shares, and all options and
other rights, contractual or otherwise, with respect thereto
(collectively, together with the shares of capital stock described in
Section 2(b) and 2(c) below, the "Pledged Shares"), including, but not
limited to, the following:
(y) all shares or securities representing a
dividend on any of the Pledged Shares, or representing a
distribution or return of capital upon or in respect of the
Pledged Shares, or resulting from a stock split, revision,
reclassification or other exchange therefor, and any
subscriptions, warrants, rights or options issued to the
holder of, or otherwise in respect of, the Pledged Shares; and
(z) without affecting the obligations of such
Pledgor under any provision prohibiting such action hereunder,
in the event of any consolidation or merger in which a Person
set forth on Schedule 2(a) is not the surviving corporation,
all shares of each class of the capital stock of the successor
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corporation formed by or resulting from such consolidation or
merger (or 65% of the shares if the successor corporation is a
First Tier Foreign Subsidiary).
(b) Additional Shares. 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
capital stock owned by such Pledgor of any Person which hereafter
becomes a Domestic Subsidiary and 65% (or, if less, the full amount
owned by such Pledgor) of the Voting Equity and 100% (or, if less, the
full amount owned by such Pledgor) of the Non-Voting Equity owned by
such Pledgor of any Person which hereafter becomes a First Tier
Foreign Subsidiary, including, without limitation, the certificates
(or other agreements or instruments), if any, representing such
shares.
(c) Other Equity Interests. Any and all other equity
interests of each Pledgor in any Domestic Subsidiary or any First Tier
Foreign Subsidiary; provided that with respect to any capital stock or
equity interest in any First Tier Foreign Subsidiary, not more than
65% of the capital stock or equity interest in any such First Tier
Foreign Subsidiary is pledged hereunder.
(d) Proceeds. All proceeds and products of the
foregoing, however and whenever acquired and in whatever form;
provided that none of the foregoing Collateral shall include any shares of
capital stock or equity interests which constitute Margin Stock.
Without limiting the generality of the foregoing, it is hereby specifically
understood and agreed that a Pledgor may from time to time hereafter deliver
additional shares of stock to the Collateral Agent as collateral security for
the Pledgor Obligations. Upon delivery to the Collateral Agent, such
additional shares of stock shall be deemed to be part of the Pledged Collateral
of such Pledgor and shall be subject to the terms of this Pledge Agreement
whether or not Schedule 2(a) is amended to refer to such additional shares.
3. Security for Pledgor Obligations. The security interest
created hereby in the Pledged Collateral of each Pledgor constitutes continuing
collateral security for all of the following, whether now existing or hereafter
incurred (the "Pledgor Obligations"):
(a) In the case of the Borrower, the prompt performance
and observance by the Borrower of all obligations of the Borrower
under the Credit Agreement, the Notes, this Pledge Agreement and the
other Credit Documents to which the Borrower is a party;
(b) In the case of the Guarantors, the prompt performance
and observance by such Guarantor of all obligations of such Guarantor
under the Credit Agreement, this Pledge Agreement and the other Credit
Documents to which such Guarantor is a party, including, without
limitation, its guaranty obligations arising under Section 4 of the
Credit Agreement; and
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(c) Subject to Section 25 hereof, all other indebtedness,
liabilities and obligations of any kind or nature owing from any
Pledgor to any Lender or the Collateral Agent in connection with (i)
this Pledge Agreement or any other Credit Document, whether now
existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or
acquired, together with any and all modifications, extensions,
renewals and/or substitutions of any of the foregoing, (ii) collecting
and enforcing the Credit Party Obligations and (iii) liabilities
arising under Hedging Agreements entered into with a Lender or an
Affiliate of a Lender pursuant to the Credit Agreement.
4. Delivery of the Pledged Collateral. Each Pledgor hereby
agrees that:
(a) Each Pledgor shall deliver to the Collateral Agent
(i) simultaneously with or prior to the execution and delivery of this
Pledge Agreement, all certificates representing the Pledged Shares of
such Pledgor and (ii) promptly upon the receipt thereof by or on
behalf of a Pledgor, all other certificates and instruments
constituting Pledged Collateral of a Pledgor. Prior to delivery to the
Collateral Agent, all such certificates and instruments constituting
Pledged Collateral of a Pledgor shall be held in trust by such Pledgor
for the benefit of the Collateral Agent pursuant hereto. All such
certificates shall be delivered in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, in the form provided in Schedule 4(a)
attached hereto.
(b) Additional Securities. If such Pledgor shall receive
by virtue of its being or having been the 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 splits, spin-off or split-off, promissory notes or
other instrument; (ii) option or right, whether as an addition to,
substitution for, or an exchange for, any Pledged Collateral or
otherwise; (iii) dividends payable in securities; or (iv)
distributions of securities in connection with a partial or total
liquidation, dissolution or reduction of capital, capital surplus or
paid-in surplus, then such Pledgor shall receive such stock
certificate, instrument, option, right or distribution in trust for
the benefit of the Collateral Agent, shall segregate it from such
Pledgor's other property and shall deliver it forthwith to the
Collateral Agent in the exact form received together with any
necessary endorsement and/or appropriate stock power duly executed in
blank in the form provided in Schedule 4(a), to be held by the
Collateral Agent as Pledged Collateral and as further collateral
security for the Pledgor Obligations.
(c) Financing Statements. Each Pledgor shall execute and
deliver to the Collateral Agent such UCC or other applicable financing
statements as may be reasonably requested by the Collateral Agent in
order to perfect and protect the security interest created hereby in
the Pledged Collateral of such Pledgor.
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5. Representations and Warranties. Each Pledgor hereby
represents and warrants to the Collateral Agent, for the benefit of the
Lenders:
(a) Authorization of Pledged Shares. The Pledged Shares
are duly authorized and validly issued, are fully paid and
nonassessable and are not subject to the preemptive rights of any
Person. All other shares of stock constituting Pledged Collateral
will be duly authorized and validly issued, fully paid and
nonassessable and not subject to the preemptive rights of any Person.
(b) Title. Each Pledgor owns the Pledged Collateral of
such Pledgor and will at all times be the legal and beneficial owner
of such Pledged Collateral free and clear of any Lien, except for the
security interest created by this Pledge Agreement and other Permitted
Liens. There exists no "adverse claim" within the meaning of Article
8 of the Uniform Commercial Code as in effect in the State of New York
(the "UCC") with respect to the Pledged Shares of such Pledgor.
(c) Exercising of Rights. The exercise by the Collateral
Agent of its rights and remedies hereunder will not violate any law or
governmental regulation or any material contractual restriction
binding on or affecting a Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or
action by, and no notice or filing with any Governmental Authority or
with the issuer of any Pledged Stock is required either (i) for the
pledge made by a Pledgor or for the granting of the security interest
by a Pledgor pursuant to this Pledge Agreement; or (ii) for the
exercise by the Collateral Agent or the Lenders of their rights and
remedies hereunder (except as may be required by laws affecting the
offering and sale of securities).
(e) Security Interest/Priority. This Pledge Agreement
creates a valid security interest in favor of the Collateral Agent,
for the benefit of the Lenders, in the Pledged Collateral. The taking
of possession by the Collateral Agent of the certificates, endorsed in
blank or endorsed to the Collateral Agent, representing the Pledged
Shares and all other certificates and instruments constituting Pledged
Collateral will perfect and establish the first priority of the
Collateral Agent's security interest in the Pledged Shares and, when
properly perfected by filing or registration, in all other Pledged
Collateral represented by such Pledged Shares and instruments securing
the Pledgor Obligations. Except as set forth in this Section 5(e), no
action is necessary to perfect or otherwise protect such security
interest.
(f) No Other Shares. As of the Closing Date, no Pledgor
owns any shares of stock other than as set forth on Schedule 2(a)
attached hereto.
6. Covenants. Each Pledgor hereby covenants, that so long as any
of the Pledgor Obligations remain outstanding (other than any obligations with
respect to the indemnities which shall survive termination of the Credit
Documents) and until all of the Commitments shall have been terminated, such
Pledgor shall:
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(a) Books and Records. Xxxx its books and records (and
shall cause the issuer of the Pledged Shares of such Pledgor to xxxx
its books and records) to reflect the security interest granted to the
Collateral Agent, for the benefit of the Lenders, pursuant to this
Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and
ownership of the Pledged Collateral of such Pledgor at its own expense
against the claims and demands of all other parties claiming an
interest therein, keep the Pledged Collateral free from all Liens,
except for those created hereunder and the security interest created
hereby and except for Permitted Liens, and not sell, exchange,
transfer, assign, lease or otherwise dispose of the Pledged Collateral
of such Pledgor or any interest therein, except as permitted under the
Credit Agreement and the other Credit Documents.
(c) Further Assurances. Promptly execute and deliver at
its expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Collateral
Agent may reasonably request in order to (i) perfect and protect the
security interest created hereby in the Pledged Collateral of such
Pledgor (including without limitation any and all action necessary to
satisfy the Collateral Agent that the Collateral Agent has obtained a
first priority perfected security interest in any capital stock); (ii)
enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder in respect of the Pledged Collateral of such
Pledgor; and (iii) otherwise effect the purposes of this Pledge
Agreement, including, without limitation and if requested by the
Collateral Agent, if an Event of Default shall have occurred and be
continuing, delivering to the Collateral Agent irrevocable proxies in
respect of the Pledged Collateral of such Pledgor.
(d) Amendments. Not make or consent to any amendment or
other modification or waiver with respect to any of the Pledged
Collateral of such Pledgor or enter into any agreement or allow to
exist any restriction with respect to any of the Pledged Collateral of
such Pledgor other than pursuant hereto or as may be permitted under
the Credit Agreement.
(e) Compliance with Securities Laws. File all reports
and other information now or hereafter required to be filed by such
Pledgor with the United States Securities and Exchange Commission and
any other state, federal or foreign agency in connection with the
ownership of the Pledged Collateral of such Pledgor.
7. Advances by Lenders. On failure of any Pledgor to perform any
of the covenants and agreements contained herein, the Collateral Agent may, at
its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Collateral Agent may reasonably deem advisable in
the performance thereof, including, without limitation, the payment of any
insurance premiums, the payment of any taxes, a payment to obtain a release of
a Lien or potential Lien, expenditures made in defending against any adverse
claim and all other expenditures which the Collateral Agent or the Lenders may
make for the protection of the
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security hereof or which may be compelled to make by operation of law. All
such sums and amounts so expended shall be repayable by the Pledgors on a joint
and several basis (subject to Section 25 hereof) promptly upon timely notice
thereof and demand therefor, shall constitute additional Pledgor Obligations
and shall bear interest from the date said amounts are expended at the default
rate provided in Section 3.1(b) of the Credit Agreement for Revolving Loans
that are Base Rate Loans. No such performance of any covenant or agreement by
the Collateral Agent or the Lenders on behalf of any Pledgor, and no such
advance or expenditure therefor, shall relieve the Pledgors of any default
under the terms of this Pledge Agreement, the other Credit Documents or any
Hedging Agreement. The Lenders may make any payment hereby authorized in
accordance with any xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent
such payment is being contested in good faith by a Pledgor in appropriate
proceedings and against which adequate reserves are being maintained in
accordance with GAAP.
8. Events of Default. The occurrence of an event which under the
Credit Agreement would constitute an Event of Default shall be an Event of
Default hereunder (an "Event of Default").
9. Remedies Upon Default. If any Event of Default shall have
occurred and be continuing:
(a) Rights and Remedies. The Collateral Agent may
exercise in respect of the Pledged Collateral of any Pledgor, in
addition to other rights and remedies provided for herein or otherwise
available to it, all rights and remedies of a secured party under the
UCC or any other applicable law.
(b) Sale of Pledged Collateral. Without limiting the
generality of this Section and without notice, the Collateral Agent
may, in its sole discretion, sell or otherwise dispose of or realize
upon 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
Collateral Agent may deem commercially reasonable, for cash, credit or
for future delivery or otherwise in accordance with applicable law.
To the extent permitted by law, any Lender may in such event, bid for
the purchase of such securities. Each Pledgor agrees that, to the
extent notice of sale shall be required by law and has not been waived
by such Pledgor, any requirement of reasonable notice shall be met if
notice, specifying the place of any public sale or the time after
which any private sale is to be made, is personally served on or
mailed, postage prepaid, to Holdings, on behalf of such Pledgor, in
accordance with the notice provisions of Section 11.1 of the Credit
Agreement at least 10 days before the time of such sale. The
Collateral Agent shall not be obligated to make any sale of Pledged
Collateral of such Pledgor regardless of notice of sale having been
given. The Collateral Agent may adjourn any public or private sale
from time to time by announcement at the time and
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place fixed therefore, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(c) Private Sale. The Pledgors recognize that the
Collateral Agent may deem it impracticable to effect a public sale of
all or any part of the Pledged Shares or any of the securities
constituting Pledged Collateral and that the Collateral 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. Each 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 sale
shall be deemed to have been made in a commercially reasonable manner
and that the Collateral Agent shall have no obligation to delay 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 of 1933. Each 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 offer may be advertised
without prior registration under the Securities Act of 1933), or (ii)
made privately in the manner described above shall be deemed to
involve a "public sale" under the UCC, notwithstanding that such sale
may not constitute a "public offering" under the Securities Act of
1933, and the Collateral Agent may, in such event, bid for the
purchase of such securities.
(d) Retention of Pledged Collateral. The Collateral
Agent may, after complying with Section 9-505(2) of the UCC or
otherwise complying with the requirements of applicable law of the
relevant jurisdiction, retain all or any portion of the Pledged
Collateral in satisfaction of the Pledgor Obligations. Unless and
until the Collateral Agent shall have provided such notices, however,
the Collateral Agent shall not be deemed to have retained any Pledged
Collateral in satisfaction of any Pledgor Obligations for any reason.
(e) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Collateral Agent or the Lenders are legally entitled, the
Pledgors shall be jointly and severally liable (subject to Section 25
hereof) for the deficiency, together with interest thereon at the
default rate provided in Section 3.1(b) of the Credit Agreement for
Revolving Loans that are Base Rate Loans, together with the costs of
collection and the reasonable fees of any attorneys employed by the
Collateral Agent to collect such deficiency. Any surplus remaining
after the full payment and satisfaction of the Pledgor Obligations
shall be returned to the Pledgors or to whomsoever a court of
competent jurisdiction shall determine to be entitled thereto.
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10. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, each Pledgor hereby designates and appoints
the Collateral Agent, on behalf of the Lenders, and each of its
designees or agents as attorney-in-fact of such Pledgor, irrevocably
and with power of substitution, with authority to take any or all of
the following actions upon the occurrence and during the continuance
of an Event of Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the Pledged
Collateral of such Pledgor, all as the Collateral Agent may
reasonably determine;
(ii) to commence and prosecute any actions at any
court for the purposes of collecting any of the Pledged
Collateral of such Pledgor and enforcing any other right in
respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Collateral Agent may deem reasonably
appropriate;
(iv) to pay or discharge taxes, liens, security
interests, or other encumbrances levied or placed on or
threatened against the Pledged Collateral of such Pledgor;
(v) to direct any parties liable for any payment
under any of the Pledged Collateral of such Pledgor to make
payment of any and all monies due and to become due thereunder
directly to the Collateral Agent or as the Collateral Agent
shall direct;
(vi) to receive payment of and receipt for any and
all monies, claims, and other amounts due and to become due at
any time in respect of or arising out of any Pledged
Collateral of such Pledgor;
(vii) to sign and endorse any drafts, assignments,
proxies, stock powers, verifications, notices and other
documents relating to the Pledged Collateral of such Pledgor;
(viii) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection
therewith, to give such discharges or releases as the
Collateral Agent may deem reasonably appropriate;
(ix) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, pledge agreements, affidavits, notices
and other agreements, instruments and documents that the
Collateral Agent reasonably may determine necessary in order
to perfect and maintain the
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security interests and liens granted in this Pledge Agreement
and in order to fully consummate all of the transactions
contemplated therein; provided that the Collateral Agent will
provide notice to the appropriate Obligors of any of the
foregoing within 10 days of the execution, delivery and
filing, if any, thereof and will promptly thereafter provide
copies of any of the foregoing executed and delivered by the
Collateral Agent, including, if received by the Collateral
Agent, acknowledgment copies of any financing statements so
filed;
(x) to exchange any of the Pledged Collateral or
other property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof
and, in connection therewith, deposit any of the Pledged
Collateral of such Pledgor with any committee, depository,
transfer agent, registrar or other designated agency upon such
terms as the Collateral Agent may determine;
(xi) to vote for a shareholder resolution, or to
sign an instrument in writing, sanctioning the transfer of any
or all of the Pledged Shares of such Pledgor into the name of
the Collateral Agent or one or more of the Lenders or into the
name of any transferee to whom the Pledged Shares of such
Pledgor or any part thereof may be sold pursuant to Section 9
hereof; and
(xii) to do and perform all such other acts and
things as the Collateral Agent may reasonably deem to be
necessary, proper or convenient in connection with the Pledged
Collateral of such Pledgor to effect the purposes of this
Pledge Agreement.
This power of attorney is a power coupled with an interest and shall
be irrevocable (i) for so long as any of the Pledgor Obligations
remain outstanding, (other than any obligations with respect to the
indemnities which shall survive the termination of the Credit
Documents) and (ii) until all of the Commitments shall have been
terminated. The Collateral Agent shall be under no duty to exercise
or withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Collateral Agent in
this Pledge Agreement, and shall not be liable for any failure to do
so or any delay in doing so. The Collateral Agent shall not be liable
for any act or omission or for any error of judgment or any mistake of
fact or law in its individual capacity or its capacity as
attorney-in-fact except acts or omissions resulting from its gross
negligence or willful misconduct. This power of attorney is conferred
on the Collateral Agent solely to protect, preserve and realize upon
its security interest in Pledged Collateral.
(b) Performance by the Collateral Agent of Pledgor's
Obligations. If any Pledgor fails to perform any agreement or
obligation contained herein, after the occurrence and during the
continuance of an Event of Default, the Collateral Agent itself may
perform, or cause performance of, such agreement or obligation, and
the reasonable expenses of the Collateral Agent incurred in connection
therewith shall be payable by the Pledgors on a joint and several
basis pursuant to Section 25 hereof.
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(c) Assignment by the Collateral Agent. The Collateral
Agent may, in accordance with the terms of the Credit Agreement, be
replaced and the successor Collateral Agent shall be entitled to all
of the rights and remedies of the Collateral Agent under this Pledge
Agreement in relation thereto.
(d) The Collateral Agent's Duty of Care. Other than the
exercise of reasonable care to assure the safe custody of the Pledged
Collateral while being held by the Collateral Agent hereunder, the
Collateral Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that Pledgors shall
be responsible for preservation of all rights in the Pledged
Collateral of such Pledgor, and the Collateral Agent shall be relieved
of all responsibility for Pledged Collateral upon surrendering it or
tendering the surrender of it to the Pledgors. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if such
Pledged Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords its own property, which shall be no
less than the treatment employed by a reasonable and prudent agent in
the industry, it being understood that the Collateral 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 Collateral
Agent has or is deemed to have knowledge of such matters; or (ii)
taking any necessary steps to preserve rights against any parties with
respect to any Pledged Collateral.
(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing, to the extent permitted by law,
each Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral of such
Pledgor or any part thereof for any purpose not inconsistent
with the terms of this Pledge Agreement or the Credit
Agreement; and
(ii) Upon the occurrence and during the
continuance of an Event of Default, all rights of a Pledgor to
exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to paragraph (i) of
this Section 10(e) shall cease and all such rights shall
thereupon become vested in the Collateral Agent which shall
thereupon have the sole right to exercise such voting and
other consensual rights.
(f) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing and subject to Section 4(b) hereof,
each Pledgor may receive and retain any and all dividends
(other than stock dividends and other dividends constituting
Pledged Collateral which are addressed hereinabove) or
interest paid
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in respect of the Pledged Collateral to the extent they are
allowed under the Credit Agreement.
(ii) Upon the occurrence and during the continuance
of an Event of Default:
(A) all rights of a Pledgor to receive
the dividends and interest payments which it would
otherwise be authorized to receive and retain
pursuant to paragraph (i) of this Section 10(f) shall
cease and all such rights shall thereupon be vested
in the Collateral Agent which shall thereupon have
the sole right to receive and hold as Pledged
Collateral such dividends and interest payments; and
(B) all dividends and interest payments
which are received by a Pledgor contrary to the
provisions of paragraph (A) of this Section shall be
received in trust for the benefit of the Collateral
Agent, shall be segregated from other property or
funds of such Pledgor, and shall be forthwith paid
over to the Collateral Agent as Pledged Collateral in
the exact form received, to be held by the Collateral
Agent as Pledged Collateral and as further collateral
security for the Pledgor Obligations.
(g) Release of Pledged Collateral. The Collateral Agent
may release any of the Pledged Collateral from this Pledge Agreement
or may substitute any of the Pledged Collateral for other Pledged
Collateral without altering, varying or diminishing in any way the
force, effect, lien, pledge or security interest of this Pledge
Agreement as to any Pledged Collateral not expressly released or
substituted, and this Pledge Agreement shall continue as a first
priority lien, security interest, pledge and charge on all Pledged
Collateral not expressly released or substituted so long as any of the
Pledgor Obligations remain outstanding.
11. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Pledgor
Obligations and any proceeds of any Pledged Collateral, when received by the
Collateral Agent or any of the Lenders in cash or its equivalent, will be
applied in reduction of the Pledgor Obligations in the order set forth in
Section 9.3 of the Credit Agreement, and each Pledgor irrevocably waives the
right to direct the application of such payments and proceeds and acknowledges
and agrees that the Collateral Agent shall have the continuing and exclusive
right to apply and reapply any and all such payments and proceeds in the
Collateral Agent's sole discretion, notwithstanding any entry to the contrary
upon any of its books and records.
12. Costs of Counsel. At all times hereafter, the Pledgors agree
to promptly pay upon demand any and all reasonable documented costs and
expenses of the Collateral Agent or the Lenders, (a) as required under Section
11.5 of the Credit Agreement and (b) as necessary to protect the Pledged
Collateral or to exercise any rights or remedies under this Pledge Agreement or
with respect to any Pledged Collateral. All of the foregoing costs and
expenses shall
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constitute Pledgor Obligations hereunder as set forth under Section 11.5 of the
Credit Agreement.
13. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect so long as
any amounts payable under any Credit Document or any Letter of Credit
shall remain outstanding, and until all of the Commitments thereunder
shall have terminated (other than any obligations with respect to the
indemnities set forth in the Credit Documents which shall survive the
termination of the Credit Documents). Upon such payment and
termination, this Pledge Agreement shall be automatically terminated
and, the Lenders shall, upon the request and at the expense of the
Pledgors, forthwith release all of its liens and security interests
hereunder. Notwithstanding the foregoing all releases and indemnities
provided hereunder shall survive termination of this Pledge Agreement.
(b) This Pledge Agreement shall continue to be effective
or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Pledgor Obligations is
rescinded or must otherwise be restored or returned by the Collateral
Agent or any Lender as a preference, fraudulent conveyance or
otherwise under any bankruptcy, insolvency or similar law, all as
though such payment had not been made; provided that in the event
payment of all or any part of the Pledgor Obligations is rescinded or
must be restored or returned, all reasonable costs and expenses
(including without limitation any reasonable legal fees and
disbursements) incurred by the Collateral Agent or any Lender in
defending and enforcing such reinstatement shall be deemed to be
included as a part of the Pledgor Obligations.
14. Amendments; Waivers; Modifications. This Pledge Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except as set forth in Section 11.6 of the Credit Agreement.
15. Successors in Interest. This Pledge Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Pledgor, its successors and assigns and shall inure, together with the rights
and remedies of the Collateral Agent and the Lenders hereunder, to the benefit
of the Collateral Agent and the Lenders and their successors and permitted
assigns; provided, however, that none of the Pledgors may assign its rights or
delegate its duties hereunder without the prior written consent of each Lender
or the Required Lenders (unless otherwise permitted by the Credit Agreement) as
required by the Credit Agreement. To the fullest extent permitted by law, each
Pledgor hereby releases the Collateral Agent and each Lender, and its
successors and assigns, from any liability for any act or omission relating to
this Pledge Agreement or the Collateral, except for any liability arising from
the gross negligence or willful misconduct of the Collateral Agent, or such
Lender, or its officers, employees or agents.
16. Notices. All notices required or permitted to be given under
this Pledge Agreement shall be in conformance with Section 11.1 of the Credit
Agreement.
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17. Counterparts. This Pledge Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning
or construction of any provision of this Pledge Agreement.
19. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Pledge Agreement may
be brought in the courts of the State of North Carolina, or of the
United States for the Western District of North Carolina, and, by
execution and delivery of this Pledge Agreement, each Pledgor hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. Each
Pledgor further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 11.1 of
the Credit Agreement, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of the Collateral
Agent to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Pledgor
in any other jurisdiction.
(b) Each Pledgor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection
with this Pledge Agreement brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
20. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES TO THIS PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS PLEDGE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21. Severability. If any provision of any of the Pledge Agreement
is determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
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22. Entirety. This Pledge Agreement, the other Credit Documents
and the Hedging Agreements represent the entire agreement of the parties hereto
and thereto and supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or correspondence relating to
the Credit Documents and the Hedging Agreements or the transactions
contemplated herein and therein.
23. Survival. All representations and warranties of the Pledgors
hereunder shall survive the execution and delivery of this Pledge Agreement,
the other Credit Documents and the Hedging Agreements, the delivery of the
Notes and the making of the Loans and the issuance of the Letters of Credit
under the Credit Agreement.
24. Other Security. To the extent that any of the Pledgor
Obligations are now or hereafter secured by property other than the Pledged
Collateral (including, without limitation, real and personal property owned by
a Pledgor), or by a guarantee, endorsement or property of any other Person,
then to the extent the Collateral Agent and the Lenders shall have the right to
proceed against such other property, guarantee or endorsement, upon the
occurrence and continuance of any Event of Default, to the extent the
applicable security agreement, guarantee or endorsement or other applicable
document so provides, and the Collateral Agent and the Lenders have the right,
in their sole discretion, to determine which rights, security, liens, security
interests or remedies, the Collateral Agent and the Lenders shall at any time
pursue, relinquish, subordinate, modify or take with respect thereto, without
in any way modifying or affecting any of them or any of the Collateral Agent's
and the Lenders' rights or the Pledgor Obligations under this Pledge Agreement,
under any other Credit Document or under any Hedging Agreement.
25. Joint and Several Obligations of Pledgors.
(a) Subject to clause (c), each of the Pledgors is
accepting joint and several liability hereunder in consideration of
the financial accommodation to be provided by the Lenders under the
Credit Agreement, for the mutual benefit, directly and indirectly, of
each of the Pledgors and in consideration of the undertakings of each
of the Pledgors to accept joint and several liability for the
obligations of each of them.
(b) Subject to clause (c), each of the Pledgors jointly
and severally hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several
liability with the other Pledgors with respect to the payment and
performance of all of the Pledgor Obligations arising under this
Pledge Agreement, the other Credit Documents and the Hedging
Agreements, it being the intention of the parties hereto that all the
Pledgor Obligations shall be the joint and several obligations of each
of the Pledgors without preferences or distinction among them.
(c) Notwithstanding any provision to the contrary
contained herein or in any other of the Credit Documents,
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(i) to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code),
and
(ii) the obligations of Holdings hereunder and
under the Credit Documents, in the aggregate, shall be limited
to an amount equal to $146,298,000.00, unless at least ninety
percent (90%) of the Holdings Debentures have been
repurchased, in which case no such limitation shall apply.
26. Rights of Required Lenders. All rights of the Collateral
Agent hereunder, if not exercised by the Collateral Agent, must be exercised by
the Collateral Agent upon the request of the Required Lenders.
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Each of the Pledgors has caused a counterpart of this Pledge Agreement
to be duly executed and delivered as of the date first above written.
BORROWER: IPC, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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GUARANTORS: IVEX PACKAGING CORPORATION,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
IVEX PAPER MILL CORPORATION,
a Delaware corporation
IPMC HOLDING CORPORATION,
a Delaware corporation
IPMC, INC.,
a Delaware corporation
VALLEY EXPRESS LINES, INC.,
a Delaware corporation
KAMA OF ILLINOIS CORPORATION,
a Delaware corporation
PACKAGING PRODUCTS, INC.,
a Delaware corporation
CFI INDUSTRIES, INC.,
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.,
a Delaware corporation
CFI RECYCLING, INC.,
a Delaware corporation
TRIO PRODUCTS, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title: of each of
----------------------------
the above named Guarantors
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Accepted and agreed to as of the date first above written.
NATIONSBANK, N.A., as Collateral Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
