EXHIBIT 10.24
PLEDGE AGREEMENT - COMPANY
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This PLEDGE AGREEMENT - COMPANY, dated as of March 12, 1998 (together
with all amendments, if any, from time to time hereto, this "Agreement"), by and
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between IMPAC GROUP, INC., a Delaware corporation (the "Pledgor"), and BANK of
AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, as agent (the "Agent") for the
Secured Creditors (as defined below). Unless otherwise defined in Section 1,
terms defined in the Credit Agreement (as defined below) are used herein as
therein defined.
R E C I T A L S:
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A. Pursuant to the Credit Agreement, dated as of even date herewith
among the Pledgor, AGI Incorporated ("AGI"), Klearfold, Inc. ("Klearfold"; and
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together with AGI, each a "L/C Borrower" and collectively, the "L/C Borrowers")
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the financial institutions from time to time party thereto (the "Lenders") and
the Agent (as from time to time restated, amended or modified, the "Credit
Agreement"), the Lenders have agreed to extend certain credit to the Pledgor and
the L/C Borrowers;
B. Pursuant to the Guaranty-Company, dated as of even date herewith
(as from time to time amended or modified, the "Guaranty"), the Pledgor has
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guaranteed to the Secured Creditors the payment when due of all obligations and
liabilities of the L/C Borrowers under or with respect to the Secured Debt
Agreements (as defined below) to which such L/C Borrower is a party;
C. The Pledgor may from time to time be an account party to one or
more Swap Contracts relating to the Revolving Loans (each such Swap Contract
with a Swap Creditor (as defined below), a "Secured Swap Contract") with Bank of
America National Trust & Savings Association ("B of A"), in its individual
capacity, any Lender or syndicate of financial institutions organized by B of A,
or an affiliate of B of A, or any Lender (even if B of A or any such Lender
ceases to be a Lender under the Credit Agreement for any reason) and any
institution that participates in, and in each case their subsequent assigns,
such Secured Swap Contract (collectively, the "Swap Creditors"); and
D. The Pledgor may from time to time incur Indebtedness pursuant to
Section 8.05(i) of the Credit Agreement as an account party to one or more
letters of credit (a "Section 8.05 L/C Obligation") (each such Section 8.05 L/C
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Obligation with a L/C Creditor (as defined below), a "Secured Letter of Credit")
issued by B of A or a Lender, in each case in its individual capacity (even if B
of A or such Lender ceases to be a Lender under the Credit Agreement for any
reason) and any institution that participates in, and in each case their
subsequent assigns, such Secured Letter of Credit (collectively, the "L/C
Creditors"); and
E. As a condition to entering into a Secured Debt Agreement and
extending credit under such Secured Debt Agreement, the Secured Creditors have
required that the Pledgor grant to the Agent, for the ratable benefit of itself
and the Secured Creditors, a security interest in the Pledged Collateral (as
defined below) on the terms and conditions set forth below.
W I T N E S S E T H:
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1. Definitions. The following shall have (unless otherwise provided
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elsewhere in this Agreement) the following respective meanings (such meanings
being equally applicable to both the singular and plural form of the terms
defined):
"Agent" has the meaning ascribed to it in the Preamble.
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"B of A" has the meaning ascribed to it in the Recitals.
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"Credit Agreement" has the meaning ascribed to it in the Recitals.
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"Event of Default" means any Event of Default under, and as defined
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in, the Credit Agreement, or any payment default, after any applicable grace
period, under any other Secured Debt Agreement.
"Excluded Shares" has the meaning ascribed to it in the definition
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"Pledged Shares".
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"L/C Creditor" has the meaning ascribed to it in the Recitals.
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"Lenders" has the meaning ascribed to it in the Recitals.
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"Pledged Collateral" has the meaning ascribed to it in Section 2.
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"Pledged Debt" means, collectively, (i) those promissory notes and
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instruments listed on Schedule I hereto, and (ii) each additional promissory
note and instrument delivered, or to be delivered, to the Agent pursuant to
Section 2 (iv).
"Pledged Entity" means each Subsidiary of the Pledgor the capital
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stock of which is required to be delivered pursuant to this Agreement.
"Pledged Shares" means, collectively, (i) with respect to a Domestic
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Subsidiary, all of the issued and outstanding shares of capital stock at any
time owned by the Pledgor of such Domestic Subsidiary, (ii) with respect to a
first tier Foreign Subsidiary, all of the issued and outstanding shares of
capital stock at any time owned by the Pledgor of such Foreign Subsidiary;
provided that the Pledgor shall not be required to pledge hereunder (and the
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term "Pledged Shares" shall not include) more than 65% of the total combined
voting power of all classes of capital stock of such Foreign Subsidiary entitled
to vote (the "Excluded Shares") until such time as the Pledgor is required to
deliver such Excluded Shares to the Agent pursuant to Section 7.15 of the Credit
Agreement and (iii) each additional share of capital stock delivered, or to be
delivered, to the Agent pursuant to Section 2(ii).
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"Pledgor" has the meaning ascribed to it in the Preamble.
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"Secured Creditors" means, collectively, the Agent, each Lender, each
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L/C Creditor and each Swap Creditor.
"Secured Debt Agreements" means, collectively, the Credit Agreement
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and the other Loan Documents, each Secured Letter of Credit and each Secured
Swap Contract.
"Secured Letter of Credit" has the meaning ascribed to it in the
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Recitals.
"Secured Obligations" means, collectively, (i) all "Obligations" as
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defined in the Credit Agreement, (ii) all "Obligations" as defined in the
Guaranty, (iii) the payment when due of all obligations of the Pledgor to Swap
Creditors pursuant to any Secured Swap Contract and the due performance and
compliance with all the terms of the Secured Swap Contracts by the Pledgor and
(iv) the payment when due of all obligations of the Pledgor to L/C Creditors
pursuant to any Secured Letter of Credit and the due performance and compliance
with all the terms of the Secured Letter of Credit by the Pledgor
"Secured Swap Contract" has the meaning ascribed to it in the
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Recitals.
"Security Agreement" means the Security Agreement, dated as of even
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date herewith, between the Pledgor and the Agent, as the same may be amended or
modified from time to time.
"Swap Creditor" has the meaning ascribed to it in the Recitals.
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2. Pledge. The Pledgor hereby pledges to the Agent, for the benefit
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of itself and the Secured Creditors, and grants to the Agent, for the benefit of
itself and the Secured Creditors, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
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(i) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares of the Pledgor;
(ii) any additional shares of stock (other than Excluded Shares) of a
Pledged Entity from time to time acquired by the Pledgor in any manner
(which shares shall be deemed to be part of the Pledged Shares), and the
certificates representing such additional shares, and all dividends,
distributions, cash, instruments and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares;
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(iii) the Pledged Debt and the promissory notes or instruments
evidencing the Pledged Debt, and all interest, cash, instruments and other
property and assets from time to time received, receivable or otherwise
distributed in respect of the Pledged Debt; and
(iv) all additional Indebtedness for borrowed money arising after the
date hereof and owing to the Pledgor by any Subsidiary of the Pledgor and
evidenced by promissory notes or other instruments, together with such
promissory notes and instruments, and all interest, cash, instruments and
other property and assets from time to time received, receivable or
otherwise distributed in respect of that Pledged Debt.
3. Security for Secured Obligations. This Agreement secures, and
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the Pledged Collateral is security for, the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise, and performance of all
obligations and liabilities of any kind of the Pledgor under or in the Secured
Debt Agreements.
4. Delivery of Pledged Collateral. All certificates representing or
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evidencing the Pledged Shares and all promissory notes and instruments
evidencing Pledged Debt shall be delivered to and held by or on behalf of the
Agent, for the benefit of itself and the Secured Creditors, pursuant hereto and
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Agent, and all promissory
notes or other instruments evidencing the Pledged Debt shall be endorsed by the
Pledgor.
5. Representations and Warranties. The Pledgor represents and
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warrants to the Agent and each Secured Creditor that:
(a) it is, and at the time of delivery of the Pledged Collateral to
the Collateral Agent pursuant to Section 4 hereof will be, the sole holder
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of record and the sole beneficial owner of the Pledged Collateral pledged
by it free and clear of any Lien thereon or affecting the title thereto,
except for any Lien created by this Agreement;
(b) all of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable;
(c) the Pledged Debt has been duly authorized, authenticated or
issued and delivered by, and is the legal, valid and binding obligation of,
the issuer thereof, and no such issuer is in default thereunder;
(d) none of the Pledged Shares, Excluded Shares or Pledged Debt has
been issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) all of the Pledged Shares are presently owned by the Pledgor, and
are
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presently represented by the stock certificates listed on Schedule I
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hereto, and, as of the date hereof, there are no existing options,
warrants, calls or commitments of any character whatsoever relating to the
Pledged Shares;
(f) no consent, approval, authorization or other order of any Person
and no consent, authorization, approval, or other action by, and no notice
to or filing with, any governmental authority is required for the exercise
by the Agent of the voting or other rights provided for in this Agreement
or the remedies in respect of the Pledged Collateral pursuant to this
Agreement, except as may be required in connection with such disposition by
laws affecting the Agent or the offering and sale of securities generally;
and
(g) the Pledged Shares of a Domestic Subsidiary constitute 100% of the
issued and outstanding shares of stock of such Domestic Subsidiary, and the
Pledged Shares of a Foreign Subsidiary constitute 65% (100% in the event
Excluded Shares are delivered to the Agent) of the issued and outstanding
shares of stock of such Foreign Subsidiary.
The representations and warranties set forth in this Section 5 shall
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survive the execution and delivery of this Agreement.
6. Covenants. From the date of this Agreement, and thereafter until
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this Agreement is terminated, the Pledgor:
(a) will defend the title to the Pledged Collateral and the Liens of
Agent or the Pledged Collateral against the claim of any Person and will
maintain and preserve such Liens; and
(b) will, upon obtaining any additional shares (other than Excluded
Shares) of stock of a Pledged Entity or promissory notes or instruments,
which shares, notes or instruments are not already Pledged Collateral,
promptly (and in any event within five (5) Business Days) deliver to the
Agent a Pledge Amendment, duly executed by the Pledgor, in substantially
the form of Schedule II hereto (a "Pledge Amendment") in respect of any
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such additional shares, notes or instruments pledging to the Agent, on
behalf of itself and the Secured Creditors, all of such additional shares,
notes and instruments. The Pledgor hereby authorizes the Agent to attach
each Pledge Amendment to this Agreement and agrees that all Pledged Shares
and Pledged Debt listed on any Pledge Amendment delivered to the Agent
shall for all purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. Until an Event of Default shall have occurred
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and be continuing and written notice shall be given to the Pledgor in accordance
with Section 8(a) hereof:
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(a) the Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part thereof
for all purposes not inconsistent with the provisions of this Agreement,
any Secured Debt Agreement and any other document
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executed in connection with any such agreement; provided, however, that no
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vote shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of the Agent or
any Secured Creditor in respect of the Pledged Collateral or which would
authorize or effect (except as and to the extent expressly permitted by the
Credit Agreement): (i) the dissolution or liquidation, in whole or in part,
of a Pledged Entity; (ii) the consolidation or merger of a Pledged Entity
with any other Person; (iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens in
favor of the Agent; (iv) any change in the authorized number of shares, the
stated capital or the authorized share capital of a Pledged Entity or the
issuance of any additional shares of its stock; or (v) the alteration of
the voting rights with respect to the stock of a Pledged Entity; and
(b)(i) the Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends, principal and interest paid
in respect of the Pledged Collateral to the extent not in violation of the
Secured Debt Agreements other than any and all; (A) dividends, principal
and 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; and
(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; and (C) cash paid, payable or otherwise distributed, in
respect of principal of, or in redemption of, or in exchange for, any
Pledged Collateral so long as no Default or Event of Default has occurred;
provided, however, that until actually paid all rights to such
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distributions shall remain subject to the Lien created by this Agreement;
and
(ii) all dividends and interest (other than such cash dividends and
interest as are permitted to be paid to the Pledgor in accordance with clause
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(i) above) and all other distributions in respect of any of the Pledged
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Collateral of the Pledgor, whenever paid or made, shall 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, for the benefit of itself and
the Secured Creditors, be segregated from the other property or funds of the
Pledgor, and be forthwith delivered to the Agent as Pledged Collateral in the
same form as so received (with any necessary indorsement).
8. Defaults and Remedies. (a) Upon the occurrence and continuance
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of an Event of Default, then on or at any time after such declaration (provided
that such declaration is not rescinded by the Secured Creditors) and upon
written notice to the Pledgor, the Agent (personally or through an agent) is
hereby authorized and empowered (subject to instructions agreeable to the
Secured Creditors) to transfer and register in its name or in the name of its
nominee the whole or any part of the Pledged Collateral, to exchange
certificates or instruments representing or evidencing Pledged Shares for
certificates or instruments of smaller or larger denominations, to exercise the
voting and all other rights as a stockholder with respect thereto, to collect
and receive all cash dividends, interest and principal and other distributions
made thereon, to sell in one or more sales after ten (10) days' written notice
of the time and place of any public sale or of the time after which a private
sale is to take place (which notice the Pledgor agrees is commercially
reasonable) the whole or any part of the Pledged Collateral and to otherwise act
with respect to the Pledged Collateral as
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though the Agent was the outright owner thereof, the Pledgor hereby irrevocably
constituting and appointing the Agent as the proxy and attorney-in-fact of the
Pledgor, with full power of substitution to do so, and which shall remain in
effect until the Obligations are indefeasibly paid in full; provided, however,
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the Agent shall not have any duty to exercise any such right or to preserve the
same and shall not be liable for any failure to do so or for any delay in doing
so. Any sale shall be made at a public or private sale at the Agent's place of
business, or at any place to be named in the notice of sale, either for cash or
upon credit or for future delivery at such price as the Agent may deem fair, and
the Agent or any Secured Creditor may be the purchaser of the whole or any part
of the Pledged Collateral so sold and hold the same thereafter in its own right
free from any claim of the Pledgor or any right of redemption. Each sale shall
be made to the highest bidder, but the Agent reserves the right to reject any
and all bids at such sale which, in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically provided for,
notices of sale, advertisements and the presence of property at sale are hereby
waived and any sale hereunder may be conducted by an auctioneer or any officer
or agent of the Agent.
(b) If, at the original time or times appointed for the sale of the
whole or any part of the Pledged Collateral, the highest bid, if there be but
one sale, shall be inadequate to discharge in full all the Secured Obligations,
or if the Pledged Collateral be offered for sale in lots, if at any of such
sales, the highest bid for the lot offered for sale would indicate to the Agent,
in its discretion, the unlikelihood of the proceeds of the sales of the whole of
the Pledged Collateral being sufficient to discharge all the Secured
Obligations, the Agent may, on one or more occasions and in its discretion,
postpone any of said sales by public announcement at the time of sale or the
time of previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby waived;
provided, however, that any sale or sales made after such postponement shall be
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after ten (10) days' written notice to the Pledgor.
(c) The proceeds of any sale, disposition or other realization upon
all or any part of the Pledged Collateral shall be distributed by the Agent in
accordance with Section 9 of the Security Agreement.
(d) If, at any time when the Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of Default,
that, in connection with any actual or contemplated exercise of its rights (when
permitted under this Section 8) to sell the whole or any part of the Pledged
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Collateral hereunder, it is necessary or advisable to effect a public
registration of all or part of the Pledged Collateral pursuant to the Securities
Act of 1933, as amended (or any similar statute then in effect) (the "Act"), the
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Pledgor shall, in an expeditious manner, cause the Pledged Entities to:
(i) prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement with respect to the Pledged
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Collateral and in good faith use commercially reasonable efforts to cause
such registration statement to become and remain effective;
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(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Collateral covered
by such registration statement whenever the Agent shall desire to sell or
otherwise dispose of the Pledged Collateral;
(iii) furnish to the Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as the Agent may reasonably request in order
to facilitate the public sale or other disposition of the Pledged
Collateral by the Agent;
(iv) use commercially reasonable efforts to register or qualify
the Pledged Collateral covered by such registration statement under such
other securities or blue sky laws of such jurisdictions within the United
States and Puerto Rico as the Agent shall reasonably request, and do such
other reasonable acts and things as may be required of it to enable the
Agent to consummate the public sale or other disposition in such
jurisdictions of the Pledged Collateral by the Agent;
(v) furnish, at the reasonable request of the Agent, on the
date that shares of the Pledged Collateral are delivered to the
underwriters for sale pursuant to such registration or, if the security is
not being sold through underwriters, on the date that the registration
statement with respect to such shares of Pledged Collateral becomes
effective, (A) an opinion, dated such date, of the independent counsel
representing such registrant for the purposes of such registration,
addressed to the underwriters, if any, and in the event the Pledged
Collateral is not being sold through underwriters, then to the Agent, in
customary form and covering matters of the type customarily covered in such
legal opinions; and (B) a comfort letter, dated such date, from the
independent certified public accountants of such registrant, addressed to
the underwriters, if any, and in the event the Pledged Collateral is not
being sold through underwriters, then to the Agent, in a customary form and
covering matters of the type customarily covered by such comfort letters
and as the underwriters or the Agent shall reasonably request. The opinion
of counsel referred to above shall additionally cover such other legal
matters with respect to the registration in respect of which such opinion
is being given as the Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall additionally
cover such other financial matters (including information as to the period
ending not more than five (5) Business Days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as the Agent may reasonably request; and
(vi) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable but
not later than 18 months after the effective date of the registration
statement, an earnings statement covering the period of at least 12 months
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beginning with the first full month after the effective date of such
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act.
(e) All reasonable expenses incurred in complying with Section 8(d)
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hereof, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), printing expenses, fees and disbursements of counsel
for the registrant, the reasonable fees and expenses of counsel for the Agent,
reasonable expenses of the independent certified public accountants (including
any special audits incident to or required by any such registration) and
reasonable expenses of complying with the securities or blue sky laws or any
jurisdictions, shall be paid by the Pledgor.
(f) If, at any time when the Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral hereunder, such
Pledged Collateral or the part thereof to be sold shall not, for any reason
whatsoever, be effectively registered under the Act, the Agent may, in its
discretion (subject only to applicable requirements of law), sell such Pledged
Collateral or part thereof by private sale in such manner and under such
circumstances as the Agent may deem necessary or advisable, but subject to the
other requirements of this Section 8, and shall not be required to effect such
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registration or to cause the same to be effected. Without limiting the
igenerality of the foregoing, in any such event, the Agent in its discretion (x)
may, in accordance with applicable securities laws, proceed to make such private
sale notwithstanding that a registration statement for the purpose of
registering such Pledged Collateral or part thereof could be or shall have been
filed under said Act (or similar statute), (y) may approach and negotiate with a
single possible purchaser to effect such sale, and (z) may restrict such sale to
a purchaser who is an accredited investor under the Act and who will represent
and agree that such purchaser is purchasing for its own account, for investment
and not with a view to the distribution or sale of such Pledged Collateral or
part thereof. In addition to a private sale as provided above in this Section 8,
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if any of the Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this Section 8, then the Agent shall not be required
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to effect such registration or cause the same to be effected but, in its
discretion (subject only to applicable requirements of law), may require that
any sale hereunder (including a sale at auction) be conducted subject to
restrictions: (i) as to the financial sophistication and ability of any Person
permitted to bid or purchase at any such sale; (ii) as to the content of legends
to be placed upon any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof; (iii) as to the
representations required to be made by each Person bidding or purchasing at such
sale relating to that Person's access to financial information about the Pledgor
and such Person's intentions as to the holding of the Pledged Collateral so sold
for investment for its own account and not with a view to the distribution
thereof; and (iv) as to such other matters as the Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding any
failure so to register) may be effected in compliance with the Bankruptcy Code
and other laws affecting the enforcement of creditors' rights and the Act and
all applicable state securities laws.
(g) The Pledgor recognizes that the Agent may be unable to effect a
public sale of any or all the Pledged Collateral and may be compelled to resort
to one or more private sales thereof in accordance with clause (f) above. The
Pledgor also acknowledges that any such private
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sale may result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances, agrees
that any such private sale shall be deemed to have been made in a commercially
reasonable manner. The Agent shall be under no obligation to delay a sale of any
of the Pledged Collateral for the period of time necessary to permit the
registrant to register such securities for public sale under the Act, or under
applicable state securities laws, even if the Pledgor would agree to do so.
(h) The Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an Event of
Default it will not at any time plead, claim or take the benefit of any
appraisal, valuation, stay, extension, moratorium or redemption law now or
hereafter in force in order to prevent or delay the enforcement of this
Agreement, or the absolute sale of the whole or any part of the Pledged
Collateral or the possession thereof by any purchaser at any sale hereunder, and
the Pledgor waives the benefit of all such laws to the extent it lawfully may do
so. The Pledgor agrees that it will not interfere with any right, power and
remedy of the Agent provided for in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, or the exercise or beginning of
the exercise by the Agent of any one or more of such rights, powers or remedies.
No failure or delay on the part of the Agent to exercise any such right, power
or remedy and no notice or demand which may be given to or made upon the Pledgor
by the Agent with respect to any such remedies shall operate as a waiver
thereof, or limit or impair the Agent's right to take any action or to exercise
any power or remedy hereunder, without notice or demand, or prejudice its rights
as against the Pledgor in any respect.
(i) The Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to the Agent and the
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Secured Creditors, that the Agent and the Secured Creditors shall have no
adequate remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this Section 8 shall be specifically
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enforceable against the Pledgor, and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and payable
in accordance with the agreements and instruments governing and evidencing such
obligations.
9. Waiver. No delay on the Agent's or any Secured Creditors' part
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in exercising any power of sale, Lien, option or other right hereunder, and no
notice or demand which may be given to or made upon the Pledgor by the Agent or
a Secured Creditor with respect to any power of sale, Lien, option or other
right hereunder, shall constitute a waiver thereof, or limit or impair the
Agent's or any Secured Creditors' right to take any action or to exercise any
power of sale, Lien, option, or any other right hereunder, without notice or
demand, or prejudice the Agent's or any Secured Creditors' rights as against the
Pledgor in any respect.
10. Assignment. The Agent and the Secured Creditors may assign,
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indorse or transfer any instrument evidencing all or any part of the Secured
Obligations as provided in, and in accordance with, the applicable Secured Debt
Agreement and the holder of such instrument shall be entitled to the benefits
of this Agreement.
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11. Termination. This Agreement shall continue in effect
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(notwithstanding the fact that from time to time there may be no Secured
Obligations or commitments therefor outstanding) until the payment in full of
the Secured Obligations and the termination of the Secured Debt Agreements in
accordance with its terms thereunder, at which time the security interests
granted hereby shall terminate and any and all rights to the Collateral shall
revert to the Pledgor. Upon such termination, the Agent shall promptly return to
the Pledgor, at the Pledgor's expense, such of the Collateral held by the Agent
as shall not have been sold or otherwise applied pursuant to the terms hereof.
The Agent will promptly execute and deliver to the Pledgor such other documents
as the Pledgor shall reasonably request to evidence such termination.
12. Lien Absolute. All rights of the Agent hereunder, and all
-------------
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any Secured Debt
Agreement, any other document executed in connection with either agreement
or any other agreement or instrument governing or evidencing any Secured
Obligations;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any Secured
Debt Agreement, or any other agreement or instrument governing or
evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor.
13. Release. The Pledgor consents and agrees that the Agent and the
-------
Secured Creditors may at any time, or from time to time, in its discretion (a)
renew, extend or change the time of payment, and/or the manner, place or terms
of payment of all or any part of the Secured Obligations and (b) exchange,
release and/or surrender all or any of the Pledged Collateral, or any part
thereof, by whomsoever deposited, which is now or may hereafter be held by the
Agent in connection with all or any of the Secured Obligations; all in such
manner and upon such terms as the Agent and the Secured Creditors may deem
proper, and without notice to or further assent from the Pledgor, it being
hereby agreed that the Pledgor shall be and remain bound upon this Agreement,
irrespective of the value or condition of any of the Pledged Collateral, and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount thereof set
forth in the relevant Secured Debt Agreement, or any other agreement governing
any Secured Obligations. The Pledgor hereby waives notice of acceptance of this
Agreement, and also presentment, demand, protest and notice of dishonor of any
and all of the Secured Obligations, and promptness in commencing suit against
any party hereto or liable hereon, and in giving any
11
notice to or of making any claim or demand hereunder upon the Pledgor. No act or
omission of any kind on the Agent's part shall in any event affect or impair
this Agreement.
14. Reinstatement. This Agreement shall remain in full force and
-------------
effect and continue to be effective should any petition be filed by or against
the Pledgor or any Pledged Entity for liquidation or reorganization, should the
Pledgor or any Pledged Entity become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of the Pledgor's or a Pledged Entity's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Secured Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Secured Obligations, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15. Miscellaneous. (a) The Agent may execute any of its duties
-------------
hereunder by or through agents or employees and shall be entitled to advice of
counsel concerning all matters pertaining to its duties hereunder.
(b) The Pledgor agrees to promptly reimburse the Agent for actual out-
of-pocket expenses, including, without limitation, reasonable counsel fees,
incurred by the Agent in connection with the administration and enforcement of
this Agreement. The Pledgor's obligation to reimburse the Agent pursuant to the
preceding sentence shall be a Secured Obligation payable on demand.
(c) None of the Agent, any Secured Creditor nor any of their
respective officers, directors, employees, agents or counsel shall be liable for
any action lawfully taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or willful
misconduct.
(d) The Pledgor hereby irrevocably appoints the Agent as the Pledgor's
attorney-in-fact, 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 reasonably exercised, to take any action and to execute any
instrument that the Agent deems reasonably necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation, to receive,
endorse and collect all instruments made payable to the Pledgor representing any
dividend, or other proceeds or distribution in respect of the Pledged Collateral
or any part thereof and to give full discharge for the same, when and to the
extent permitted by this Agreement.
(e) The terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Pledgor, the Agent and the Secured Creditors and
their respective successors and assigns, except that the Pledgor shall not have
the right to assign its rights or obligations under this Agreement or any
interest herein, without the prior written consent of the Agent and the Secured
Creditors.
12
16. Severability. If for any reason any provision or provisions
------------
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or effect those portions of
this Agreement which are valid.
17. Notices. (a) Any notice required or permitted to be given under
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this Agreement shall be given (i) in the case of the Pledgor, the Agent, and
each Lender, in accordance the Credit Agreement, (ii) in the case of a L/C
Creditor, in accordance with the relevant Secured Letter of Credit and (iii) in
the case of a Swap Creditor, in accordance with the relevant Secured Swap
Contract.
(b) The Pledgor or any Secured Creditor may change the address for
service of notice upon it by a notice in writing to the other.
18. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
19. Section Titles. The Section titles contained in this Agreement
--------------
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
20. Counterparts. This Agreement may be executed in any number of
------------
counterparts, which shall, collectively and separately, constitute one
agreement.
21. Limitation on Duty of the Agent with Respect to Collateral. BOA
----------------------------------------------------------
has been appointed as Agent for the Secured Creditors hereunder, and the Agent
has agreed to act (and any successor Agent shall act) as such hereunder only on
the express conditions contained in Article X of the Credit Agreement. Any
successor Agent appointed pursuant to Article X of the Credit Agreement shall be
entitled to all the rights, interests and benefits of the Agent hereunder.
Beyond the safe custody thereof, the Agent shall not have any duty with respect
to any Pledged Collateral in its possession or control (or in the possession or
control of any agent or bailee) or with respect to any income thereon or the
preservation of rights against prior parties or any other rights pertaining
thereto. 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 it
accords its own property. The Agent shall not be liable or responsible for any
loss or damage to any of the Pledged Collateral, or for any diminution in the
value thereof, by reason of the act or omission of any agent or bailee selected
by the Agent in good faith.
22. WAIVER OF JURY TRIAL. ALL PARTIES HERETO HEREBY WAIVE TRIAL BY
--------------------
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR
13
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
[Signature Page Follows]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
IMPAC GROUP, INC.,
as Pledgor
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: President
---------------------------
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION,
as Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
---------------------------
S-1
[TO PLEDGE AGREEMENT-COMPANY]
SCHEDULE I
PLEDGED SHARES
------------------------------------------------------------------------------
Class Stock Certificate Number Percentage of
Stock Issuer of Stock Number(s) of Shares Outstanding Shares
-------------- -------- -------------------- --------- ------------------
------------------------------------------------------------------------------
Klearfold, Inc. Common 100 100%
Stock
AGI Incorporated Common 100%
Stock
PLEDGED DEBT
Initial Principal
Issuer Amount Issue Date Maturity Date Interest Rate
------ ------ ---------- ------------- -------------
SCHEDULE II
FORM OF PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is delivered
pursuant to Section 6(b) of the Pledge Agreement referred to below. The
------------
undersigned hereby certifies that the representations and warranties in Section
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5 of the Pledge Agreement are and continue to be true and correct, both as to
-
the shares pledged prior to this Pledge Amendment and as to the shares pledged
pursuant to this Pledge Amendment. The undersigned further agrees that this
Pledge Amendment may be attached to that certain Pledge Agreement-Company, dated
March __, 1998, by the undersigned, as the Pledgor, to Bank of America National
Trust & Savings Association, as Agent, and that the Pledged Shares and/or
Pledged Debt listed on this Pledge Amendment shall be and become a part of the
Pledged Collateral referred to in said Pledge Agreement and shall secure all
Secured Obligations referred to in said Pledge Agreement. The undersigned
acknowledges that any shares not included in the Pledged Shares or promissory
notes or instruments not included in the Pledged Debt at the discretion of the
Agent may not otherwise be pledged or otherwise used as security by the Pledgor.
IMPAC GROUP, INC.
By_______________________________________
Name:_____________________________________
Title:____________________________________
Pledged Shares
--------------
------------------------------------------------------------------------
Name and Class Certificate Number
Address of the Pledgor Issuer of Stock Number(s) of Shares
------------------------ ------ -------- -------------- ---------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
Pledged Debt
------------
Initial Principal
Issuer Amount Issue Date Maturity Date Interest Rate
------ ------ ---------- ------------- -------------