EXECUTION COPY
US PLEDGE AGREEMENT
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PLEDGE AGREEMENT, dated as of June 28, 2002 (as amended, modified or
supplemented from time to time, this "Agreement"), made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 30 hereof, the "Pledgors") to
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent (together with any
successor Collateral Agent, the "Pledgee"), for the benefit of the Secured
Creditors (as defined below). Except as otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement (as defined below) shall
be used herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Silgan Holdings Inc. ("Silgan"), Silgan Containers
Corporation ("Containers"), Silgan Plastics Corporation ("Plastics"), Silgan
Containers Manufacturing Corporation ("Manufacturing"), Silgan Can Company
("CanCo"), each other Borrower from time to time party thereto, the lenders from
time to time party thereto (the "Lenders", and each, a "Lender"), Deutsche Bank
Trust Company Americas, as Administrative Agent (in such capacity, and together
with any successor administrative agent, the "Administrative Agent"), Bank of
America, N.A. and Citicorp USA, Inc., as Co-Syndication Agents (in such
capacity, the "Co-Syndication Agents"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and
Fleet National Bank, as Co-Documentation Agents (in such capacity, the
"Co-Documentation Agents"), Deutsche Bank Securities Inc. and Banc of America
Securities LLC, as Joint Lead Arrangers (in such capacity, the "Joint Lead
Arrangers"), and Deutsche Bank Securities Inc., Banc of America Securities LLC
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as Joint Book Managers (in such capacity, the
"Joint Book Managers"), have entered into a Credit Agreement, dated as of June
28, 2002 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to, and the issuance of Letters
of Credit for the account of, the Borrowers as contemplated therein (the
Lenders, the Administrative Agent, the Issuing Lenders, the Co-Syndication
Agents, the Co-Documentation Agents, the Joint Lead Arrangers, the Joint Book
Managers and the Pledgee are collectively referred to herein as the "Lender
Creditors");
WHEREAS, (i) Silgan has heretofore entered into two Interest Rate
Protection Agreements with The Bank of New York (together with its affiliates,
collectively "BNY") (as such Interest Rate Protection Agreements are in effect
on the date hereof and without giving effect to any extension, renewal or
replacement thereof, the "Existing BNY Interest Rate Protection Agreements"),
and (ii) one or more of the Borrowers or Subsidiaries thereof are, or may from
time to time be, party to one or more other Interest Rate Protection Agreements
or Other Hedging Agreements with any Lender or an affiliate of a Lender (each
such Lender or affiliate, even if the respective Lender subsequently ceases to
be a Lender under the Credit Agreement for any reason, together with such
Lender's or affiliate's successors and assigns and BNY solely in respect of the
Existing BNY Interest Rate Protection Agreements, are herein called the "Other
Creditors" and, together with the Lender Creditors, are herein called the
"Secured Creditors");
WHEREAS, pursuant to the US Borrowers/Subsidiaries Guaranty, each
Pledgor (other than CanCo except as may be required after the date hereof
pursuant to the Credit Agreement) has jointly and severally guaranteed to the
Secured Creditors the payment when due of all indebtedness, obligations and
liabilities of each Borrower and Subsidiary thereof under or with respect to the
Credit Documents, the Interest Rate Protection Agreements and the Other Hedging
Agreements;
WHEREAS, it is a condition precedent to the making of Loans to each
Borrower and the issuance of, and participation in, Letters of Credit for the
account of each Revolving Borrower under the Credit Agreement that the Pledgors
shall have executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of
Loans by, and the issuance of, and participation in, Letters of Credit for the
account of, the Borrowers under the Credit Agreement and the entering into by
one or more of the Borrowers and/or Subsidiaries thereof of Interest Rate
Protection Agreements and Other Hedging Agreements and, accordingly, each
Pledgor desires to enter into this Agreement in order to satisfy the condition
described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor
or any Subsidiary thereof at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed
in any such proceeding), reimbursement obligations under Letters of Credit,
fees, costs and indemnities) of such Pledgor to the Lender Creditors,
whether now existing or hereafter incurred under, arising out of, or in
connection with, the Credit Agreement and the other Credit Documents to
which such Pledgor is a party (including, in the case of each Pledgor that
is a Guarantor, all such obligations, liabilities and indebtedness of such
Pledgor under the US Borrowers/Subsidiaries Guaranty) and the due
performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Credit Documents (all such obligations, liabilities and indebtedness
under this clause (i), except to the extent consisting of obligations,
liabilities or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements entitled to the benefits of this
Agreement, being herein collectively called the "Credit Document
Obligations");
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(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Pledgor or any Subsidiary thereof at the rate provided for in the
respective documentation, whether or not a claim for post-petition interest
is allowed in any such proceeding) owing by such Pledgor to the Other
Creditors under, or with respect to (including, in the case of each Pledgor
that is a Guarantor, all such obligations, liabilities and indebtedness of
such Pledgor under the US Borrowers/Subsidiaries Guaranty), each Interest
Rate Protection Agreement and Other Hedging Agreement entitled to the
benefits of this Agreement, whether such Interest Rate Protection Agreement
or Other Hedging Agreement is now in existence or hereafter arising, and
the due performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained therein (all such obligations,
liabilities and indebtedness described in this clause (ii) being herein
collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of such Pledgor referred to
in clauses (i), (ii) and (iii) above, after an Event of Default shall have
occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing
on the Collateral, or of any exercise by the Pledgee of its rights
hereunder, together with reasonable attorneys' fees and court costs;
(v) all amounts paid by any Indemnitee as to which such Indemnitee has
the right to reimbursement under Section 11 of this Agreement; and
(vi) all amounts owing to any Agent or any of its affiliates pursuant
to any of the Credit Documents in its capacity as such;
all such indebtedness, obligations, liabilities, sums and expenses set forth in
clauses (i) through (vi) of this Section 1 being herein collectively called the
"Obligations;" it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" shall have the meaning provided in the recitals
hereof.
"Adverse Claim" shall mean "adverse claim" as such term defined in
Section 8-102(a)(1) of the UCC.
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"Agreement" shall have the meaning provided in the first paragraph
hereof.
"Borrower" shall have the meaning provided in the recitals hereof.
"BNY" shall have the meaning provided in the recitals hereof.
"CanCo" shall have the meaning provided in the recitals hereof.
"Certificated Security" shall mean "certificated security" as such
term is defined in Section 8-102(a)(4) of the UCC.
"Clearing Corporation" shall mean "clearing corporation" as such term
is defined in Section 8-102(a)(5) of the UCC.
"Co-Documentation Agents" shall have the meaning provided in the
recitals hereof.
"Collateral Accounts" shall mean any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Collateral" shall have the meaning provided in Section 3.1 of this
Agreement.
"Containers" shall have the meaning provided in the recitals hereof.
"Co-Syndication Agents" shall have the meaning provided in the
recitals hereof.
"Credit Agreement" shall have the meaning provided in the recitals
hereof.
"Credit Document Obligations" shall have the meaning provided in
Section 1 of this Agreement.
"Domestic Corporation" shall have the meaning provided in the
definition of "Stock" in this Section 2.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
"Excluded Equity Interests" shall mean any Stock, Limited Liability
Company Interest or Partnership Interest in any Person that is not a Subsidiary
of Silgan to the extent that such equity interests are prohibited from being
pledged hereunder by the terms of the respective stockholders agreement,
partnership agreement, membership agreement, operating agreement, joint venture
agreement or other agreement, as the case may be; provided that (i) any equity
interests constituting Excluded Equity Interests shall only constitute Excluded
Equity Interests until such time as such Person becomes a Subsidiary of Silgan
or such Excluded Equity Interests are no longer subject to such prohibitions and
(ii) notwithstanding the foregoing, any distributions or dividends received or
to be received by a Pledgor in respect of an Excluded Equity Interest shall be
subject to the security interests created by this Agreement (other than any such
distributions or dividends paid in Stock, Limited Liability Company Interests or
Partnership Interests, as applicable, of such Person).
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"Existing BNY Interest Rate Protection Agreements" shall have the
meaning provided in the recitals hereof.
"Financial Asset" shall mean "financial asset" as such term is defined
in Section 8-102(a)(9) of the UCC.
"Foreign Corporation" shall have the meaning provided in the
definition of "Stock" of this Agreement.
"Indemnitees" shall have the meaning provided in Section 11 of this
Agreement.
"Instrument" shall mean "instrument" as such term is defined in
Section 9-102(a)(47) of the UCC.
"Investment Property" shall mean "investment property" as such term is
defined in Section 9-102(a)(49) of the UCC.
"Joint Book Managers" shall have the meaning provided in the recitals
hereof.
"Joint Lead Arrangers" shall have the meaning provided in the recitals
hereof.
"Lender Creditors" shall have the meaning provided in the recitals
hereof.
"Lenders" shall have the meaning provided in the first recital hereof.
"Limited Liability Company Assets" shall mean all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" shall mean the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Location" of any Pledgor, shall mean such Pledgor's "location" as
determined pursuant to Section 9-307 of the UCC.
"Manufacturing" shall have the meaning provided in the recitals
hereof.
"Non-Voting Stock" shall mean all capital stock of a foreign
corporation which is not Voting Stock.
"Notes" shall mean (x) all intercompany notes at any time issued to
each Pledgor and (y) all other promissory notes from time to time issued to, or
held by, each Pledgor.
"Obligations" shall have the meaning provided in Section 1 of this
Agreement.
"Other Creditors" shall have the meaning provided in the recitals
hereof.
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"Other Obligations" shall have the meaning provided in Section 1 of
this Agreement.
"Partnership Assets" shall mean all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"Partnership Interest" shall mean the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership.
"Plastics" shall have the meaning provided in the recitals hereof.
"Pledged Notes" shall have the meaning provided in Section 3.5 of this
Agreement.
"Pledgee" shall have the meaning provided in the first paragraph of
this Agreement.
"Pledgor" shall have the meaning provided in the first paragraph of
this Agreement.
"Proceeds" shall mean all "proceeds" as such term is defined in
Section 9-102(a)(64) of the UCC and, in any event, shall also include, but not
be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to the Pledgee or any Pledgor from time to time with respect to
any of the Collateral, (ii) any and all payments (in any form whatsoever) made
or due any payable to any Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by and governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Registered Organization" shall mean "registered organization" as such
term is defined in 9-102(a)(70) of the UCC.
"Required Secured Creditors" shall have the meaning provided in the US
Security Agreement.
"Secured Creditors" shall have the meaning provided in the recitals
hereof.
"Secured Debt Agreements" shall have the meaning provided in Section 5
of this Agreement.
"Securities Account" shall mean "securities account" as such term is
defined in Section 8-501(a) of the UCC.
"Securities Act" shall mean the Securities Act of 1933, as amended, as
in effect from time to time.
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"Security Entitlement" shall mean "security entitlement" as such term
is defined in Section 8-102(a)(17) of the UCC.
"Security" shall mean a "security" as such term is defined in Section
8-102(a)(15) of the UCC and shall in any event include all Stock and Notes.
"Silgan" shall have the meaning provided in the recitals hereof.
"Stock" shall mean (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof (each a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock of any corporation at any time owned by any Pledgor of any Domestic
Corporation and (y) with respect to corporations not Domestic Corporations (each
a "Foreign Corporation"), all of the issued and outstanding shares of capital
stock at any time owned by any Pledgor of any Foreign Corporation.
"Termination Date" shall have the meaning provided in Section 20 of
this Agreement.
"Transmitting Utility" shall mean "transmitting utility" as such term
is defined in Section 9-102(a)(80) of the UCC.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time; provided that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" shall mean an "uncertificated security" as
such term is defined in Section 8-102(a)(18) of the UCC.
"Voting Stock" shall mean all classes of capital stock of any Foreign
Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
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3.1 Pledge. To secure the Obligations now or hereafter owed or to be
performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create, in
each case a continuing security interest in favor of the Pledgee for the benefit
of the Secured Creditors in all of the right, title and interest of such Pledgor
in and to the following, whether now existing or hereafter from time to time
acquired (collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and all assets of
whatever type or kind deposited by such Pledgor in any such Collateral
Account, whether now owned or hereafter acquired, existing or arising,
including, without limitation, all Financial Assets, Investment Property,
monies, checks, drafts, Instruments, Securities or interests therein of any
type or nature deposited or required by the Credit Agreement or any other
Secured Debt Agreement to be deposited in any such Collateral Account, and
all investments and all certificates and other Instruments (including
depository receipts, if any) from time to time representing or evidencing
the same, and all dividends, interest, distributions, cash and other
property from time to time received, receivable or otherwise
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distributed in respect of or in exchange for any or all of the foregoing;
(b) all Securities held or owned by such Pledgor from time to time and
all options and warrants owned by such Pledgor from time to time to purchase
Securities;
(c) all Limited Liability Company Interests held or owned by such
Pledgor from time to time and all of its right, title and interest in each
limited liability company to which each such interest relates, whether now
existing or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits, losses,
Limited Liability Company Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Limited Liability
Company Interests;
(B) all other payments due or to become due to such Pledgor in respect
of Limited Liability Company Interests, whether under any limited liability
company agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority, options,
security interests, liens and remedies, if any, under any limited liability
company agreement or operating agreement, or at law or otherwise in respect
of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor against any
such limited liability company for monies loaned or advanced, for services
rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability company
agreement or operating agreement or at law to exercise and enforce every
right, power, remedy, authority, option and privilege of such Pledgor
relating to such Limited Liability Company Interests, including any power
to terminate, cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of such Pledgor in respect of
such Limited Liability Company Interests and any such limited liability
company, to make determinations, to exercise any election (including, but
not limited to, election of remedies) or option or to give or receive any
notice, consent, amendment, waiver or approval, together with full power
and authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce or
execute any checks, or other instruments or orders, to file any claims and
to take any action in connection with any of the foregoing; and
(F) all other property hereafter delivered in substitution for or in
addition to any of the foregoing, all certificates and instruments
representing or evidencing such other 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;
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(d) all Partnership Interests held or owned by such Pledgor from time
to time and all of its right, title and interest in each partnership to which
each such interest relates, whether now existing or hereafter acquired,
including, without limitation:
(A) all the capital thereof and its interest in all profits, losses,
Partnership Assets and other distributions to which such Pledgor shall at
any time be entitled in respect of such Partnership Interests;
(B) all other payments due or to become due to such Pledgor in respect
of Partnership Interests, whether under any partnership agreement or
otherwise, whether as contractual obligations, damages, insurance proceeds
or otherwise;
(C) all of its claims, rights, powers, privileges, authority, options,
security interests, liens and remedies, if any, under any partnership
agreement or operating agreement, or at law or otherwise in respect of such
Partnership Interests;
(D) all present and future claims, if any, of such Pledgor against any
such partnership for monies loaned or advanced, for services rendered or
otherwise;
(E) all of such Pledgor's rights under any partnership agreement or
operating agreement or at law to exercise and enforce every right, power,
remedy, authority, option and privilege of such Pledgor relating to such
Partnership Interests, including any power to terminate, cancel or modify
any partnership agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in the
name of such Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election (including,
but not limited to, election of remedies) or option or to give or receive
any notice, consent, amendment, waiver or approval, together with full
power and authority to demand, receive, enforce, collect or receipt for any
of the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take any
action in connection with any of the foregoing (with all of the foregoing
rights only to be exercisable upon the occurrence and during the
continuation of an Event of Default); and
(F) all other property hereafter delivered in substitution for or in
addition to any of the foregoing, all certificates and instruments
representing or evidencing such other 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;
(e) all Financial Assets and Investment Property of such Pledgor from
time to time;
(f) all Security Entitlements of such Pledgor from time to time in any
and all of the foregoing; and
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(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this Section 3.1
or in Section 3.3 hereof, (x) except as otherwise provided in Section 7.10 of
the Credit Agreement, no Pledgor (to the extent that it is a Borrower or a
Domestic Subsidiary of a Borrower) shall be required at any time to pledge
hereunder, and clause (b) above shall not apply to, more than 65% of the Voting
Stock of any Foreign Corporation, (y) each Pledgor shall be required to pledge
hereunder 100% of any Non-Voting Stock at any time and from time to time
acquired by such Pledgor of any Foreign Corporation and (z) in no event shall
the term "Collateral" include, and no Pledgor shall be required to pledge, (I)
the Stock of CanCo (until such time as such Stock is no longer subject to the
terms of the ▇▇▇▇▇▇▇▇ Can Pledge Agreement or otherwise prohibited to be pledged
hereunder by any of the ▇▇▇▇▇▇▇▇ Can Acquisition Documents) or (II) any Excluded
Equity Interests (except as otherwise provided in the definition thereof).
3.2 Procedures. (a) To the extent that any Pledgor at any time or from
time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 Business Days after it obtains such Collateral) for
the benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a Certificated
Security credited on the books of a Clearing Corporation), the respective
Pledgor shall physically deliver such Certificated Security to the Pledgee,
endorsed to the Pledgee or endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall cause the issuer of such Uncertificated
Security (or, in the case of an issuer that is not a Subsidiary of a
Pledgor, use its reasonable efforts to cause such issuer) to duly
authorize, execute and deliver to the Pledgee an agreement for the benefit
of the Pledgee and the other Secured Creditors substantially in the form of
Annex H hereto (appropriately completed to the satisfaction of the Pledgee
and with such modifications, if any, as shall be satisfactory to the
Pledgee) pursuant to which such issuer agrees to comply with any and all
instructions originated by the Pledgee without further consent by the
registered owner and not to comply with instructions regarding such
Uncertificated Security (and any Partnership Interests and Limited
Liability Company Interests issued by such issuer) originated by any other
Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply with the applicable rules
of such Clearing Corporation and (ii) to perfect the security interest of
the Pledgee under applicable law (including, in any event, under Sections
9-314(a) and (c), 9-106 and 8-106 (d) of the UCC). The Pledgor further
agrees to take such actions requested by the Pledgee as the Pledgee deems
reasonably necessary or desirable to effect the foregoing;
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(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation), (1) if
such Partnership Interest or Limited Liability Company Interest is
represented by a certificate and is a Security for purposes of the UCC, the
procedure set forth in Section 3.2(a)(i) hereof, and (2) if such
Partnership Interest or Limited Liability Company Interest is not
represented by a certificate or is not a Security for purposes of the UCC,
the procedure set forth in Section 3.2(a)(ii) hereof; and
(v) with respect to any Note, physical delivery of such Note to the
Pledgee, endorsed to the Pledgee or endorsed in blank.
(b) In addition to the actions required to be taken pursuant to
preceding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor of which the
Pledgee may obtain "control" within the meaning of Section 8-106 of the UCC
(or under any provision of the UCC as same may be amended or supplemented
from time to time, or under the laws of any relevant State other than the
State of New York), the respective Pledgor shall take all actions as may be
reasonably requested from time to time by the Pledgee so that "control" of
such Collateral is obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing
statements (on Form UCC-1 or other appropriate form) under the Uniform
Commercial Code as in effect in the various relevant States, in form
satisfactory to the Pledgee and covering all Collateral hereunder, to be
filed in the relevant filing offices so that at all times the Pledgee has a
security interest in all Investment Property and other Collateral which is
perfected by the filing of such financing statements (in each case to the
maximum extent perfection by filing may be obtained under the laws of the
relevant States, including, without limitation, Section 9-312(a) of the
UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire (by
purchase, stock dividend or otherwise) any additional Collateral at any time or
from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.1 hereof and,
furthermore, the Pledgor will promptly thereafter take (or cause to be taken)
all action with respect to such Collateral in accordance with the procedures set
forth in Section 3.2 hereof, and will promptly thereafter deliver to the Pledgee
(i) a certificate executed by an executive officer of such Pledgor describing
such Collateral and certifying that the same has been duly pledged in favor of
the Pledgee (for the benefit of the Secured Creditors) hereunder and (ii)
supplements to Annexes A through F hereto as are necessary to cause such annexes
to be complete and accurate at such time.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
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3.5 Definition of Pledged Notes. All Notes at any time pledged or
required to be pledged hereunder are hereinafter called the "Pledged Notes".
3.6 Certain Representations and Warranties Regarding the Collateral.
Each Pledgor represents and warrants that on the date hereof (i) the exact legal
name of such Pledgor, the type of organization of such Pledgor, whether or not
such Pledgor is a Registered Organization, the jurisdiction of organization of
such Pledgor, such Pledgor's Location, the organizational identification number
(if any) of such Pledgor, and whether or not such Pledgor is a Transmitting
Utility, is listed on Annex A hereto; (ii) each Subsidiary of such Pledgor, and
the direct ownership thereof, is listed in Annex B hereto; (iii) the Stock held
by such Pledgor consists of the number and type of shares of the stock of the
corporations as described in Annex C hereto; (iv) such Stock referenced in
clause (iii) of this paragraph constitutes that percentage of the issued and
outstanding capital stock of the issuing corporation as is set forth in Annex C
hereto; (v) the Notes held by such Pledgor consist of the promissory notes
described in Annex D hereto where such Pledgor is listed as the lender; (vi) the
Limited Liability Company Interests held by such Pledgor consist of the number
and type of interests of the Persons described in Annex E hereto; (vii) each
such Limited Liability Company Interest referenced in clause (vi) of this
paragraph constitutes that percentage of the issued and outstanding equity
interest of the issuing Person as set forth in Annex E hereto; (viii) the
Partnership Interests held by such Pledgor consist of the number and type of
interests of the Persons described in Annex F hereto; (ix) each such Partnership
Interest referenced in clause (viii) of this paragraph constitutes that
percentage or portion of the entire partnership interest of the Partnership as
set forth in Annex F hereto; (x) such Pledgor has complied with the respective
procedure set forth in Section 3.2(a) hereof with respect to each item of
Collateral described in Annexes C through F hereto; (xi) the Excluded Equity
Interests owned by such Pledgor on the date hereof are described in Annex H
hereto; and (xii) other than Excluded Equity Interests, on the date hereof, such
Pledgor owns no other Securities, Limited Liability Company Interests or
Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the extent
necessary to enable the Pledgee to perfect its security interest in any of the
Collateral or to exercise any of its remedies hereunder, the Pledgee shall have
the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Collateral, which may be held (in the discretion of
the Pledgee) in the name of the relevant Pledgor, endorsed or assigned in blank
or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default and written notice
thereof shall have been given by the Pledgee to the relevant Pledgor (provided,
that if an Event of Default specified in Section 9.05 of the Credit Agreement
shall occur, no such notice shall be required), each Pledgor shall be entitled
to exercise any and all voting and other consensual rights pertaining to the
Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided that, in each case, no vote shall be cast or any
consent, waiver or ratification given or any action taken or omitted to be taken
which would violate or be inconsistent with any of the terms of this Agreement,
the Credit Agreement, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement entitled to the benefits of this Agreement
(collectively, the "Secured Debt Agreements"), or which would have the effect of
impairing the position or interests of the Pledgee or any other Secured Creditor
in the Collateral.
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All such rights of each Pledgor to vote and to give consents, waivers and
ratifications shall cease in case an Event of Default has occurred and is
continuing and written notice thereof shall have been given to the relevant
Pledgor as (but only to the extent) described above, and Section 7 hereof shall
become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash dividends other than as set
forth above) paid or distributed by way of dividend or otherwise in respect
of the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash other than as set forth
above) paid or distributed in respect of the Collateral by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash other than as set forth
above) which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets, liquidation
or similar corporate reorganization.
Nothing contained in this Section 6 (other than as set forth in the first
sentence hereof) shall limit or restrict in any way the Pledgee's right to
receive proceeds of the Collateral in any form in accordance with Section 3 of
this Agreement. All dividends, distributions or other payments which are
received by any Pledgor contrary to the provisions of this Section 6 and Section
7 hereof shall be received in trust for the benefit of the Pledgee, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
paid over to the Pledgee as Collateral in the same form as so received (with any
necessary endorsement).
7. REMEDIES IN CASE OF EVENT OF DEFAULT. Each Pledgor agrees that, if
any Event of Default shall have occurred and be continuing, then and in every
such case, the Pledgee, in addition to any rights now or hereafter existing
under applicable law, the other provisions of this Agreement or any other
Secured Debt Agreement, shall be entitled to exercise all of the rights, powers
and remedies (whether vested in it by this Agreement, any other Secured Debt
Agreement or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code as in effect
in any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
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(ii) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees (although the Pledgee agrees to
promptly notify the relevant Pledgor after any such transfer; provided,
however, that the failure to give such notice shall not affect the validity
of any such transfer);
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(iv) subject to the giving of written notice in accordance with (and
to the extent required by) Section 5 hereof, to vote all or any part of the
Collateral (whether or not transferred into the name of the Pledgee) and
give all consents, waivers and ratifications in respect of the Collateral
and otherwise act with respect thereto as though it were the outright owner
thereof (each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor, with full power of
substitution to do so);
(v) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise purchase
(all of which are hereby waived by each Pledgor), for cash, on credit or
for other property, for immediate or future delivery without any assumption
of credit risk, and for such price or prices and on such terms as the
Pledgee in its absolute discretion may determine, provided that at least 10
days' written notice of the time and place of any such sale shall be given
to the respective Pledgor. The Pledgee shall not be obligated to make any
such sale of Collateral regardless of whether any such notice of sale has
theretofore been given. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security for
the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid for
and purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or all
of the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations;
it being understood that each Pledgor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Pledgee shall be entitled to a decree
requiring specific performance by such Pledgor of said obligation. By accepting
the benefits of this Agreement and each other Security Document, the Secured
Creditors expressly acknowledge and agree that this Agreement and each other
Security Document may be enforced only by the action of the Administrative Agent
or the Pledgee acting upon the instructions of the Required Secured Creditors
and that no other Secured Creditor shall have any right individually to seek to
enforce this Agreement or any other Security Document or
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to realize upon the security to be granted hereby or thereby, it being
understood and agreed that such rights and remedies may be exercised by the
Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement and the other Security Documents.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and remedy
of the Pledgee or any other Secured Creditor provided for in this Agreement or
in any other Secured Debt Agreement, or now or hereafter existing at law or in
equity or by statute shall be cumulative and concurrent and shall be in addition
to every other such right, power or remedy. The exercise or beginning of the
exercise by the Pledgee or any other Secured Creditor of any one or more of the
rights, powers or remedies provided for in this Agreement or any other Secured
Debt Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
or any other Secured Creditor of all such other rights, powers or remedies, and
no failure or delay on the part of the Pledgee or any other Secured Creditor to
exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in Section 7.4 of the US
Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
(c) Notwithstanding anything to the contrary contained in this Section
9, CanCo shall not be jointly and severally liable with the other Pledgors for
any deficiency described in Section 9(b) above to the extent that such joint and
several liability is prohibited by the applicable CanCo Restrictions then in
effect, although CanCo shall remain liable to the extent of any deficiency
between the amount of the proceeds of the Collateral and the amount of its own
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify, reimburse and hold harmless the Pledgee in such capacity, each other
Secured Creditor and their respective successors, assigns, employees,
affiliates, agents and servants (hereinafter in this Section 11 referred to
individually an "Indemnitee," and, collectively the "Indemnitees") from and
against any and all liabilities, obligations, damages, injuries, penalties,
claims, demands, actions, suits, judgments and losses of whatsoever kind or
nature, and (ii) to reimburse each
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Indemnitee for any and all costs, expenses and disbursements, including
reasonable attorneys' fees and expenses, in each case growing out of or
resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Secured Debt Agreement (but
excluding any liabilities, obligations, damages, injuries, penalties, claims,
demands, actions, suits, judgments, losses, expenses, costs or disbursements to
the extent incurred by reason of gross negligence or willful misconduct of such
Indemnitee (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). In no event shall the Pledgee be liable, in the
absence of gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for monies
actually received by it in accordance with the terms hereof. If and to the
extent that the obligations of any Pledgor under this Section 11 are
unenforceable for any reason, such Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law. Notwithstanding anything to the contrary
contained in this Agreement, CanCo shall not be jointly and severally liable
with the other Pledgors for any indemnity obligations under this Section 11 to
the extent such joint and several liability is prohibited by the applicable
CanCo Restrictions then in effect, although CanCo shall remain obligated for
indemnity obligations with respect to its own actions.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or as a partner in any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
Collateral consisting of a Limited Liability Company Interest or Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor, any
Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor or any
limited liability company or partnership either before or after an Event of
Default shall have occurred. The Pledgee shall have only those powers set forth
herein and the Secured Creditors shall assume none of the duties, obligations or
liabilities of a member of any limited liability company or as a partner of any
partnership or any Pledgor except as provided in the last sentence of paragraph
(a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the ▇▇▇▇▇▇▇▇▇▇.
▇▇
▇▇. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees to
execute and deliver to the Pledgee such financing statements, in form reasonably
acceptable to the Pledgee, as the Pledgee may from time to time reasonably
request or as are reasonably necessary or desirable in the opinion of the
Pledgee to establish and maintain a valid, enforceable, perfected security
interest in the Collateral as provided herein and the other rights and security
contemplated hereby. Each Pledgor will pay any applicable filing fees,
recordation taxes and related expenses relating to its Collateral. Each Pledgor
hereby authorizes the Pledgee to file any such financing statements without the
signature of such Pledgor where permitted by law (and such authorization
includes describing the Collateral as "all assets" of such Pledgor).
(b) Each Pledgor hereby constitutes and appoints the Pledgee its true
and lawful attorney, irrevocably, with full power after the occurrence of and
during the continuance of an Event of Default (in the name of such Pledgor or
otherwise) to act, require, demand, receive, compound and give acquaintance for
any and all monies and claims for monies due or to become due to such Pledgor
under or arising out of the Collateral, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings which the Pledgee may deem to be necessary
or advisable to protect the interests of the Secured Creditors, which
appointment as attorney is coupled with an interest.
14. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured
Creditor acknowledges and agrees that the obligations of the Pledgee as holder
of the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement and in Section 11 of the Credit Agreement. The Pledgee shall
act hereunder on the terms and conditions set forth herein and in Section 11 of
the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Secured Debt Agreements).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good and
marketable title to, all Collateral pledged by it hereunder and that it has
sufficient interest in all Collateral in which a security interest is
purported to be created hereunder for such security interest to attach
(subject, in each case, to no pledge, lien, mortgage, hypothecation,
security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered
by such Pledgor and constitutes a legal, valid and binding obligation of
such Pledgor enforceable
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against such Pledgor in accordance with its terms, except to the extent
that the enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no consent of any
other party (including, without limitation, any stockholder, member,
partner or creditor of such Pledgor or any of its Subsidiaries) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by such Pledgor in
connection with (a) the execution, delivery or performance of this
Agreement, (b) the validity or enforceability of this Agreement (except as
set forth in clause (iii) above), (c) the perfection or enforceability of
the Pledgee's security interest in the Collateral or (d) except for
compliance with or as may be required by applicable securities laws, the
exercise by the Pledgee of any of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, applicable to such Pledgor, or of the
certificate of incorporation, operating agreement, limited liability
company agreement, partnership agreement or by-laws of such Pledgor or of
any securities issued by such Pledgor or any of its Subsidiaries, or of any
mortgage, deed of trust, indenture, lease, loan agreement, credit agreement
or other material contract, agreement or instrument or undertaking to which
such Pledgor or any of its Subsidiaries is a party or which purports to be
binding upon such Pledgor or any of its Subsidiaries or upon any of their
respective assets and will not result in the creation or imposition of (or
the obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated by
this Agreement;
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued and acquired, is fully paid and non-assessable and is
subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constituting Intercompany Notes
constitutes, or when executed by the obligor thereof will constitute, the
legal, valid and binding obligation of such obligor, enforceable in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law); and
(viii) the pledge, collateral assignment and delivery to the Pledgee
of the Collateral consisting of Certificated Securities pursuant to this
Agreement creates a valid and perfected first priority security interest in
such Certificated Securities, and the proceeds thereof, subject to no prior
Lien or encumbrance or to any agreement purporting to grant to any third
party a Lien or encumbrance on the property or assets of such Pledgor which
would include the Securities and the Pledgee is entitled to all the rights,
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priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities with
respect to which such "control" may be obtained pursuant to Section 8-106
of the UCC; provided that in the case of the Pledgee obtaining "control"
over Collateral consisting of a Security Entitlement, such Pledgor shall
have taken all steps in its control so that the Pledgee obtains "control"
over such Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION;
LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact
legal name of each Pledgor, the type of organization of such Pledgor, whether or
not such Pledgor is a Registered Organization, the jurisdiction of organization
of such Pledgor, such Pledgor's Location, the organizational identification
number (if any) of each Pledgor, and whether or not such Pledgor is a
Transmitting Utility, is listed on Annex A hereto for such Pledgor. No Pledgor
shall change its legal name, its type of organization, its status as a
Registered Organization (in the case of a Registered Organization), its status
as a Transmitting Utility or as a Person which is not a Transmitting Utility, as
the case may be, its jurisdiction of organization, its Location, or its
organizational identification number (if any) from that listed on Annex A hereto
for such Pledgor, except that any such changes shall be permitted (so long as
not in violation of the applicable requirements of the Secured Debt Agreements
and so long as same do not involve (x) a Registered Organization ceasing to
constitute same or (y) any Pledgor changing its jurisdiction of organization or
Location from the United States or a State thereof to a jurisdiction of
organization or Location, as the case may be, outside the United States or a
State thereof) if (i) it shall have given to the Pledgee not less than 10 days'
prior written notice of each change to the information listed on Annex A (as
adjusted for any subsequent changes thereto previously made in accordance with
this sentence), together with a supplement to Annex A which shall correct all
information contained therein for the respective Pledgor, and (ii) in connection
with the respective such change or changes, it shall have taken all action
reasonably requested by the Pledgee to maintain the security interests of the
Pledgee in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. In addition, to the extent that any
Pledgor does not have an organizational identification number on the date hereof
and later obtains one, such Pledgor shall promptly thereafter notify the Pledgee
of such organizational identification number and shall take all actions
reasonably satisfactory to the Pledgee to the extent necessary to maintain the
security interest of the Pledgee in the Collateral intended to be granted hereby
fully perfected and in full force and effect.
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18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding; whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will use its reasonable efforts to cause such registration to be effected (and
be kept effective) and will use its reasonable efforts to cause such
qualification and compliance to be declared effected (and be kept effective) as
may be so requested and as would permit or facilitate the sale and distribution
of such Collateral, including, without limitation, registration under the
Securities Act, as then in effect (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with any other government requirements,
provided, that the Pledgee shall furnish to such Pledgor such information
regarding the Pledgee as such Pledgor may reasonably request in writing and as
shall be required in connection with any such registration, qualification or
compliance. Such Pledgor will cause the Pledgee to be kept reasonably advised in
writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Collateral against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or
20
Partnership Interests pursuant to Section 7 hereof, and the Collateral or the
part thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act, as then in effect, the Pledgee may, in its
sole and absolute discretion, sell such Collateral, as the case may be, or part
thereof by private sale in such manner and under such circumstances as the
Pledgee may deem necessary or advisable in order that such sale may legally be
effected without such registration. Without limiting the generality of the
foregoing, in any such event the Pledgee, in its sole and absolute discretion
(i) may proceed to make such private sale notwithstanding that a registration
statement for the purpose of registering such Collateral or part thereof shall
have been filed under such Securities Act, (ii) may approach and negotiate with
a single possible purchaser to effect such sale, and (iii) may restrict such
sale to a purchaser 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 Collateral or part thereof. In the event of any
such sale, the Pledgee shall incur no responsibility or liability for selling
all or any part of the Collateral at a price which the Pledgee, in its sole and
absolute discretion, in good ▇▇▇▇▇ ▇▇▇▇▇ reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
20. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 11 hereof shall survive such
termination) and the Pledgee, at the request and expense of the respective
Pledgor, will promptly execute and deliver to such Pledgor a proper instrument
or instruments (including Uniform Commercial Code termination statements on Form
UCC-3) acknowledging the satisfaction and termination of this Agreement, and
will duly release from the security interest created hereby and assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Pledgee and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement. As used in this Agreement, "Termination Date" shall mean the
date upon which the Total Commitment and all Interest Rate Protection Agreements
and Other Hedging Agreements entitled to the benefits of this Agreement have
been terminated, no Note, Loan or Letter of Credit is outstanding and all other
Obligations (other than indemnities described in Section 11 hereof and described
in Section 12.13 of the Credit Agreement, and any other indemnities set forth in
any other Security Documents, in each case which are not then due and payable)
have been paid in full in cash.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 8.02 of the Credit Agreement or is otherwise
released at the direction of the Required Secured Creditors, the Pledgee, at the
request and expense of such Pledgor, will duly release from the security
interest created hereby (and will execute and deliver such documentation,
including UCC-3 termination or partial release statements and the like in
connection therewith) and assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
is then being (or has been) so sold or released and as may be in the possession
of the Pledgee and has not theretofore been released pursuant to this Agreement.
(c) At any time that the respective Pledgor desires that Collateral be
released as provided in the foregoing Section 20(a) or (b), it shall deliver to
the Pledgee a certificate signed by an authorized officer of such Pledgor
stating that the release of the respective Collateral is permitted pursuant to
Section 20(a) or (b) hereof.
21
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with this Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled or sent by courier, be effective when
deposited in the mails, delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Pledgee or any Pledgor shall not be
effective until received by the Pledgee or such Pledgor, as the case may be. All
notices and other communications shall be in writing addressed as follows:
(a) if to any Pledgor, at:
c/o Silgan Holdings Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(b) if to the Pledgee, at:
Deutsche Bank Trust Company Americas
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(c) if to any Lender Creditor, other than the Pledgee, either (x) to
the Administrative Agent, at the address of the Administrative Agent specified
in the Credit Agreement or (y) at such address as such Lender Creditor shall
have specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to Silgan and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
22. WAIVER; AMENDMENT. Except as provided in Sections 20 and 30
hereof, none of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever except in accordance with
the terms of the US Security Agreement.
22
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each
Pledgor and its successors and assigns (although no Pledgor may assign its
rights and obligations hereunder except in accordance with the provisions of the
Secured Debt Agreements) and shall inure to the benefit of the Pledgee and the
other Secured Creditors and their respective successors and assigns. All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE
AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH
PLEDGOR. 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
ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF
PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY
23
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
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE 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.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Pledgor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, nor
shall the Pledgee be required or obligated in any manner to perform or fulfill
any of the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Pledgor and the
Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
29. RECOURSE. This Agreement is made with full recourse to each
Pledgor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of such Pledgor contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of Silgan that is required to execute a counterpart of this Agreement
after the date hereof pursuant to the requirements of the Credit Agreement or
any other Credit Document, shall automatically become a Pledgor hereunder by
executing a counterpart hereof and delivering the same to the Pledgee. Silgan
agrees that it shall and shall cause any Subsidiary of Silgan that becomes a
Pledgor hereunder to (i) deliver supplements to Annexes A through F, inclusive,
hereto, and Annex H hereto, as are necessary to cause such Annexes to be
complete and accurate with respect to such additional Pledgor on such date and
(ii) take all actions as specified in this Agreement as would have been taken by
such Pledgor had it been an original party to this Agreement, in each case with
all documents required above to be delivered to the Pledgee and
24
with all documents and actions required above to be taken to the reasonable
satisfaction of the Pledgee.
* * * *
25
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
SILGAN HOLDINGS INC.,
as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Senior Vice President, General Counsel
and Secretary
SILGAN CONTAINERS CORPORATION,
as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
SILGAN PLASTICS CORPORATION,
as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
SILGAN CONTAINERS MANUFACTURING
CORPORATION,
as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
SILGAN CAN COMPANY,
as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
SILGAN LLC, as an Pledgor
By: SILGAN CONTAINERS MANUFACTURING
COMPANY, as Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
SILGAN CORPORATION, as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
RXI PLASTICS, INC., as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
SILGAN VACUUM CLOSURE HOLDING
COMPANY, as an Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
and Secretary
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Pledgee, Collateral Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
