EXHIBIT N-1
FORM OF
COMPANY PLEDGE AGREEMENT
THIS COMPANY PLEDGE AGREEMENT (this "Agreement") dated as of September 25,
1996 is between GIBRALTAR PACKAGING GROUP, INC., a Delaware corporation (the
"Company"), 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 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, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreement that the Company
execute and deliver to the Agent a pledge agreement in the form of 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 Company
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
Company, howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or
to become due, which arise out of or in connection with the Credit
Agreement, the Notes, this Agreement, or any other Loan Document.
Loan Document 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 Company
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 Company 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 Company agrees to deliver to the Agent, promptly upon receipt and in
due form for transfer (i.e., endorsed in blank or
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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 Company; and prior to the delivery thereof to the Agent, such Collateral
shall be held by the Company separate and apart from its other property and in
express trust for the Agent.
3. Warranties; Further Assurances. The Company warrants to the Agent and
each Bank that: (a) the Company 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 of the Liabilities shall be outstanding or any commitment
shall exist on the part of the Agent or any Bank with respect to the creation of
any Liabilities, the Company (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 inspect, audit and make copies of and extracts from all records and
all other papers in the possession of the Company which pertain to
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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
Company, 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 Company 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 Company 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 Company of stock purchase or subscription
rights may be made only from funds of the Company not comprising part
of the Collateral) relating or pertaining to the Collateral or any part
thereof for any purpose; provided, however, that the Company 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 Company 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, acquisition or other
exchange of assets to which any Issuer may be a party or otherwise or
as a result of any exercise of
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any stock purchase or subscription right, shall be and become part of
the Collateral hereunder and, if received by the Company, 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 Company, all such proxies, powers of attorney,
dividend orders and other instruments as the Company may request for
the purpose of enabling the Company 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 Company is
entitled to exercise pursuant to Section 5(a)(A) hereof, and all rights of the
Company 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 Company 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 Company, to execute endorsements, assignments,
stock powers and other instruments of conveyance or transfer with respect to all
or any of the Collateral. The Company 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 any
notification of intended disposition of any of the Collateral is required by
law, such notification, if mailed, shall be deemed
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reasonably and properly given if mailed at least ten (10) days before such
disposition, postage prepaid, addressed to the Company, either at the address of
the Company shown below, or at any other address of the Company 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 Company 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 Company 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
Company 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 Company 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 Company, 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, or consent with respect to, any provision of this Agreement shall be
effective unless the same shall be in writing and signed and
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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 Company 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 Company and the Agent and their
respective successors and assigns, and shall inure to the benefit of the Company
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 COMPANY 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 COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS OF THE COMPANY SPECIFIED IN, OR PURSUANT TO, THE CREDIT
AGREEMENT, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE
COMPANY 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
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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 COMPANY 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 COMPANY HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
EACH OF THE COMPANY, 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.
GIBRALTAR PACKAGING GROUP, INC.
Address:
000 Xxxxxxxxx Xxxxxx By: /s/ W. E. Rose
Westport, Connecticut 06880 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: ____________________
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SCHEDULE I
TO
COMPANY PLEDGE AGREEMENT
STOCK
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Issuer No. Shares and Outstanding Outstanding
Ridgepak Corporation 13 100 100% 100
Standard Packaging and 158 154,553 100% 154,553
Printing Corp.
Niemand Holdings, Inc. 002 1,000 100% 1,000
GB Labels, Inc. 4 1,000 100% 1,000
