Exhibit 4.5
EXECUTION COPY
HOLDING PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made and entered into
as of June 18, 1996 by BPC HOLDING CORPORATION, a Delaware corporation
("BPC"), having its principal office at 101 Oakley Street, Evansville,
Indiana 47706, in favor of FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
having an office at 100 Wall Street, New York, New York 10005, as
collateral agent (the "Collateral Agent") for the holders (the "Holders")
of BPC's 12 1/2% Senior Secured Notes due 2006. Capitalized terms used and
not defined herein shall have the meanings given to such terms in the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, BPC is the legal and beneficial owner of (i) all of the
issued and outstanding shares of capital stock set forth on Schedule I
hereto (the "Pledged Shares") of Berry Plastics Corporation (the "Issuer");
and
WHEREAS, BPC and First Trust of New York, National Association,
as trustee, have entered into that certain indenture dated as of June 18,
1996 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Indenture"), pursuant to which BPC issued $105
million in aggregate principal amount of 12 1/2% Senior Secured Notes due 2006
(together with any notes issued in replacement thereof or in exchange or
substitution therefor or in addition thereto, the "Notes"); and
WHEREAS, the terms of the Indenture require that BPC (i) pledge
to the Collateral Agent for the ratable benefit of the Holders of Notes,
and grant to the Collateral Agent for the ratable benefit of the Holders of
Notes a security interest in, the Pledged Collateral (as defined herein)
and (ii) execute and deliver this Agreement in order to secure the payment
and performance by BPC of all of the Obligations of BPC under the Indenture
and the Notes (the "Obligations").
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and in order to
induce the Holders of Notes to purchase the Notes, BPC hereby agrees with
the Collateral Agent for its benefit and the ratable benefit of the Holders
of Notes as follows:
SECTION 1. Pledge and Creation of Security Interest. BPC hereby
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pledges to the Collateral Agent for its benefit and for the ratable benefit
of the Holders of Notes, and grants to the Collateral Agent for the ratable
benefit of the Holders of Notes, a continuing first priority security
interest in all of its right, title and interest in the following (the
"Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and, subject to the provisions of Section 6 all products
and proceeds of any of the Pledged Shares, including, without
limitation, all dividends, cash, options, warrants, rights, instruments,
subscriptions 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 or any of the foregoing; and
(b) all additional shares of, and all securities convertible into
and all warrants, options or other rights to purchase, Capital Stock of,
or other Equity Interests in, the Issuer from time to time acquired by
BPC in any manner, and the certificates representing such additional
shares and Equity Interests (any such additional shares and Equity
Interests and other items shall constitute part of the Pledged Shares
under and as defined in this Agreement), and all products and proceeds
of any of the foregoing, including, without limitation, subject to the
provisions of Section 6, all dividends, cash, options, warrants, rights,
instruments, subscriptions, 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 foregoing.
SECTION 2. Security for Obligations. This Agreement secures the
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prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all Obligations of BPC under the
Indenture and the Notes (including, without limitation, interest and any
other Obligations accruing after the date of any filing by BPC of any
petition in bankruptcy or the commencement of any bankruptcy, insolvency or
similar proceeding with respect to BPC).
SECTION 3. Delivery of Pledged Collateral. BPC hereby agrees that
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all certificates or instruments representing or evidencing the Pledged
Collateral shall be immediately delivered to and held at all times by the
Collateral Agent pursuant hereto in the State of New York and shall be in
suitable form for transfer by delivery, or issued in the name of BPC and
accompanied by instruments of transfer or assignment duly executed in blank
and undated, and in either case having attached thereto all requisite
federal or state stock transfer tax stamps, all in form and substance
satisfactory to create a first priority security interest in the Pledged
Collateral.
SECTION 4. Representations and Warranties. BPC hereby makes all
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representations and warranties applicable to BPC contained in the
Indenture. BPC further represents and warrants that:
(a) The execution, delivery and performance by BPC of this
Agreement are within BPC's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
certificate of incorporation or bylaws of BPC or of any agreement,
judgment, injunction, order, decree or other instrument binding upon
BPC, or result in the creation or imposition of any Lien on any assets
of BPC, other than the Lien contemplated hereby.
(b) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(c) The Pledged Shares constitute all of the authorized, issued and
outstanding Equity Interests of the Issuer and constitute all of the
shares of Equity Interests of the Issuer beneficially owned by BPC.
(d) BPC is the legal, record and beneficial owner of the Pledged
Collateral, free and clear of any Lien or claims of any Person except
for the security interest created by this Agreement.
(e) BPC has full power and authority to enter into this Agreement
and has the right to vote, pledge and grant a security interest in the
Pledged Collateral as provided by this Agreement.
(f) This Agreement has been duly executed and delivered by BPC and
constitutes a legal, valid and binding obligation of BPC, enforceable
against BPC in accordance with its terms.
(g) Upon the delivery to the Collateral Agent of the Pledged
Collateral and (as to certain proceeds therefrom, if any) the filing of
Uniform Commercial Code (the "UCC") financing statements, the pledge of
the Pledged Collateral pursuant to this Agreement creates a valid and
perfected first priority security interest in the Pledged Collateral,
securing the payment of the Obligations for the benefit of the
Collateral Agent and the Holders of Notes, and enforceable as such
against all creditors of BPC and any Persons purporting to purchase any
of the Pledged Collateral from BPC.
(h) No consent of any other Person and no consent, authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for the
pledge by BPC of the Pledged Collateral pursuant to this Agreement or
for the execution, delivery or performance of this Agreement by BPC or
(ii) for the exercise by the Collateral 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 offering and
sale of securities).
(i) No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the best
knowledge of BPC, threatened by or against BPC or against any of its
properties or revenues with respect to this Agreement or any of the
transactions contemplated hereby.
(j) The pledge of the Pledged Collateral pursuant to this Agreement
is not prohibited by any applicable law or governmental regulation,
release, interpretation or opinion of the Board of Governors of the
Federal Reserve System or other regulatory agency (including, without
limitation, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System).
(k) All information set forth herein relating to the Pledged
Collateral is accurate and complete in all respects.
SECTION 5. Further Assurance. BPC will at all times cause the
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security interests granted pursuant to this Agreement to constitute valid
perfected first priority security interests in the Pledged Collateral,
enforceable as such against all creditors of BPC and (except as otherwise
specifically provided herein) any Persons purporting to purchase any
Pledged Collateral from BPC. BPC will, promptly upon request by the
Collateral Agent, execute and deliver or cause to be executed and
delivered, or use its best efforts to procure, all stock powers, proxies,
tax stamps, assignments, instruments and other documents, all in form and
substance satisfactory to the Collateral Agent, deliver any instruments to
the Collateral Agent and take any other actions that are necessary or, in
the reasonable opinion of the Collateral Agent,
desirable to perfect, continue the perfection of, or protect the first
priority of the Collateral Agent's security interest in, the Pledged
Collateral, to protect the Pledged Collateral against the rights, claims,
or interests of third persons, to enable the Collateral Agent to exercise
or enforce its rights and remedies hereunder, or otherwise to effect the
purposes of this Agreement. BPC also hereby authorizes the Collateral
Agent to file any financing or continuation statements with respect to the
Pledged Collateral without the signature of BPC to the extent permitted by
applicable law. BPC will pay all costs incurred in connection with any of
the foregoing.
SECTION 6. Voting Rights; Dividends; Etc.
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(a) So long as no Default or Event of Default shall have occurred
and be continuing, BPC shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Shares or any part
thereof for any purpose not inconsistent with the terms of this
Agreement or the Indenture; provided, however, that BPC shall not
exercise or shall refrain from exercising any such right if such action
would be inconsistent with or violate any provisions of this Agreement
or the Indenture.
(b) So long as no Default or Event of Default shall have occurred
and be continuing, and subject to the other terms and conditions of the
Indenture, BPC shall be entitled to receive, and to utilize (subject to
the provisions of the Indenture) free and clear of the Lien of this
Agreement, all regular and ordinary cash dividends and other
distributions paid from time to time in respect of the Pledged Shares.
(c) Any and all (i) dividends, other distributions, interest and
principal payments paid or payable in the form of instruments and/or
other property (other than cash dividends permitted under Section 6(b)
hereof) received, receivable or otherwise distributed in respect of, or
in exchange for, any Pledged Collateral, (ii) dividends and other
distributions paid or payable in cash in respect of any Pledged Shares
in connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in-surplus, and (iii) cash paid, payable or otherwise distributed
in redemption of, or in exchange for, any Pledged Collateral, shall in
each case be forthwith delivered to the Collateral Agent to hold as
Pledged Collateral and shall, if received by BPC, be received in trust
for the benefit of the Collateral Agent and the Holders of Notes, be
segregated from the other property and funds of BPC and be forthwith
delivered to the Collateral Agent as Pledged Collateral in the same form
as so received (with any necessary endorsements).
(d) The Collateral Agent shall execute and deliver (or cause to be
executed and delivered) to BPC all such proxies and other instruments as
BPC may reasonably request in writing for the purpose of enabling BPC to
exercise the voting and other rights that it is entitled to exercise
pursuant to Sections 6(a) and 6(b) above.
(e) Upon the acceleration of the maturity of the Notes or the
failure to pay all obligations under the Notes on or before December 15,
2006, (i) all rights of BPC to exercise the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to Sec-
tion 6(a) shall cease, and all such rights shall thereupon become vested
in the Collateral Agent, which, to the extent permitted by law, shall
thereupon have the sole right to exercise such voting and other
consensual rights, and (ii) all dividends and other distributions
payable in respect of the Pledged Collateral shall
be paid to the Collateral Agent and BPC's right to receive such cash
payments pursuant to Section 6(b) hereof shall immediately cease.
(f) Upon the occurrence and during the continuance of a Default or
an Event of Default, BPC shall execute and deliver (or cause to be
executed and delivered) to the Collateral Agent all such proxies,
dividend and interest payment orders and other instruments as are
necessary or desirable to enable the Collateral Agent to exercise the
voting and other rights that it is entitled to exercise pursuant to
Section 6(e) above.
(g) All payments of interest, principal or premium and all
dividends and other distributions that are received by BPC contrary to
the provisions of this Section 6 shall be received in trust for the
benefit of the Collateral Agent and the Holders, shall be segregated
from the other property or funds of BPC and shall be forthwith delivered
to the Collateral Agent as Pledged Collateral in the same form as so
received (with any necessary endorsements).
SECTION 7. Covenants. BPC hereby covenants and agrees with the
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Collateral Agent and the Holders of Notes that it will comply with all of
the obligations, requirements and restrictions applicable to BPC contained
in the Indenture. BPC further covenants and agrees, from and after the
date of this Agreement and until the Obligations have been paid in full, as
follows:
(a) BPC agrees that it will not (i) sell, assign, transfer, convey
or otherwise dispose of, or grant any option or warrant with respect to,
any of the Pledged Collateral without the prior written consent of the
Collateral Agent acting in accordance with the directions of the Holders in
accordance with the Indenture, (ii) create or permit to exist any Lien upon
or with respect to any of the Pledged Collateral, except for the security
interest granted under this Agreement, and at all times will be the sole
beneficial owner of the Pledged Collateral, (iii) enter into any agreement
or understanding that purports to or that may restrict or inhibit the
Collateral Agent's rights or remedies hereunder, including, without
limitation, the Collateral Agent's right to sell or otherwise dispose of
the Pledged Collateral, (iv) take any action, or permit the taking of any
action by the Issuer, with respect to the Pledged Collateral the taking of
which would result in a violation of the Indenture or this Agreement,
including, without limitation, the issuance by the Issuer of any additional
Equity Interests or promissory notes or the incurrence by the Issuer of any
Indebtedness to Persons other than BPC (except as permitted by the
Indenture), (v) permit the Issuer to merge or consolidate with or into
another person or entity or sell or transfer all or substantially all of
its assets to another person or entity, unless (x) BPC shall have delivered
to the Collateral Agent an Opinion of Counsel substantially in the form of
Exhibit A hereto and a certificate executed by the President and Chief
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Financial Officer of BPC substantially in the form of Exhibit B hereto and
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(y) all outstanding capital stock of the surviving entity in such merger or
consolidation or of the entity to whom such sale or transfer was made,
together with any promissory notes issued by such entity in favor of BPC
are, upon such merger or consolidation, pledged hereunder to and deposited
with the Collateral Agent, or (vi) fail to pay or discharge any tax,
assessment or levy of any nature not later than five days prior to the date
of any proposed sale under any judgement, writ or warrant of attachment
with regard to the Pledged Collateral.
(b) BPC agrees that immediately upon becoming the beneficial owner
of any additional shares of Capital Stock, or Equity Interests of the
Issuer (including as a result of the merger or consolidation of the Issuer
with or into another entity) it will pledge and deliver to the Collateral
Agent for its benefit
and the ratable benefit of the Holders and grant to the Collateral Agent
for its benefit and the ratable benefit of the Holders, a continuing first
priority security interest in such shares or Equity Interests (as well as
instruments of transfer or assignment duly executed in blank and undated
and any necessary stock transfer tax stamps, all in form and substance
satisfactory to create a first priority security interest in the Pledged
Collateral). BPC further agrees that it will promptly deliver to the
Collateral Agent a certificate executed by a principal executive officer of
BPC describing such additional shares or Equity Interests and certifying
that the same have been duly pledged and delivered to the Collateral Agent
hereunder.
SECTION 8. Power of Attorney. In addition to all of the powers
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granted to the Collateral Agent pursuant to Section 10.06 of the Indenture,
BPC hereby appoints and constitutes the Collateral Agent as BPC's
attorney-in-fact to exercise all of the following powers upon and at any
time after the occurrence of an Event of Default for so long as such Event
of Default is continuing: (i) collection of proceeds of any Pledged
Collateral; (ii) conveyance of any item of Pledged Collateral to any
purchaser thereof; (iii) giving of any notices or recording of any Liens
under Section 5 hereof; (iv) making of any payments (upon receipt of funds
thereof) or taking any acts under Section 9 hereof and (v) paying or
discharging taxes or Liens levied or placed upon or threatened against the
Pledged Collateral, in the amounts necessary to discharge the same, and
such payments made by the Collateral Agent to become the obligations of BPC
to the Collateral Agent, due and payable immediately without demand. The
Collateral Agent's authority hereunder shall include, without limitation,
the authority to endorse and negotiate, for the Collateral Agent's own
account, any checks or instruments in the name of BPC, execute and give
receipt for any certificate of ownership or any document, transfer title to
any item of Pledged Collateral, sign BPC's name on all financing statements
or any other documents deemed necessary or appropriate to preserve, protect
or perfect the security interest in the Pledged Collateral and to file the
same, prepare, file and sign BPC's name on any notice of Lien, and prepare,
file and sign BPC's name on a proof of claim in bankruptcy or similar
document against any customer of BPC, and to take any other actions arising
from or incident to the powers granted to the Collateral Agent in this
Agreement. This power of attorney is coupled with an interest and is
irrevocable by BPC.
SECTION 9. Collateral Agent May Perform. Subject to Section 7.01(e)
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of the Indenture, if BPC fails to perform any agreement contained herein,
the Collateral Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Collateral Agent incurred in
connection therewith shall be payable by BPC under Section 14 hereof.
SECTION 10. No Assumption of Duties; Reasonable Care. The rights and
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powers granted to the Collateral Agent hereunder are being granted in order
to preserve and protect the Collateral Agent's and the Holders' of Notes
security interest in and to the Pledged Collateral granted hereby and shall
not be interpreted to, and shall not, impose any duties on the Collateral
Agent in connection therewith. The Collateral 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 the Collateral Agent accords
its own property, it being understood that the Collateral Agent shall not
have any responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Pledged Collateral, whether or not the Collateral Agent has
or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any
Pledged Collateral.
SECTION 11. Subsequent Changes Affecting Collateral. BPC represents
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to the Collateral Agent and the Holders of Notes that BPC has made its own
arrangements for keeping informed of changes or potential changes affecting
the Pledged Collateral (including, but not limited to, rights to convert,
rights to subscribe, payment of dividends, payments of interest and/or
principal, reorganization or other exchanges, tender offers and voting
rights), and BPC agrees that the Collateral Agent and the Holders of Notes
shall have no responsibility or liability for informing BPC of any such
changes or potential changes or for taking any action or omitting to take
any action with respect thereto. BPC covenants that it will not, without
the prior written consent of the Collateral Agent, vote to enable, or take
any other action to permit, the Issuer to issue any capital stock or other
securities or to sell or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral or create or permit to exist any
Lien upon or with respect to any of the Pledged Collateral, except for the
security interests granted under this Agreement. BPC will defend the
right, title and interest of the Collateral Agent and the Holders of Notes
in and to the Pledged Collateral against the claims and demands of all
Persons.
SECTION 12. Remedies Upon Default.
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(a) If any Default or Event of Default shall have occurred and
be continuing, the Collateral Agent and the Holders of Notes shall have,
in addition to all other rights given by law or by this Agreement or the
Indenture, all of the rights and remedies with respect to the Pledged
Collateral of a secured party under the UCC as in effect in the State of
New York at that time. The Collateral Agent may, without notice and at
its option, transfer or register, and BPC shall register or cause to be
registered upon request therefor by the Collateral Agent, the Pledged
Collateral or any part thereof on the books of the Issuer into the name
of the Collateral Agent or the Collateral Agent's nominee(s), with or
without any indication that such Pledged Collateral is subject to the
security interest hereunder. In addition, with respect to any Pledged
Collateral that shall then be in or shall thereafter come into the
possession or custody of the Collateral Agent, the Collateral Agent may
sell or cause the same to be sold at any broker's board or at public or
private sale, in one or more sales or lots, at such price or prices as
the Collateral Agent may deem best, for cash or on credit or for future
delivery, without assumption of any credit risk. The purchaser of any
or all Pledged Collateral so sold shall thereafter hold the same
absolutely, free from any claim, encumbrance or right of any kind
whatsoever. Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized
market, the Collateral Agent will give BPC reasonable notice of the time
and place of any public sale thereof, or of the time after which any
private sale or other intended disposition is to be made. Any sale of
the Pledged Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, commercial finance
companies, or other financial institutions disposing of property similar
to the Pledged Collateral shall be deemed to be commercially reasonable.
Any requirements of reasonable notice shall be met if such notice is
mailed to BPC as provided below in Section 18.1, at least ten days
before the time of the sale or disposition. Any other requirement of
notice, demand or advertisement for sale is, to the extent permitted by
law, waived. The Collateral Agent or any Holder of Notes may, in its
own name or in the name of a designee or nominee, buy any of the Pledged
Collateral at any public sale and, if permitted by applicable law, at
any private sale. All expenses (including court costs and reasonable
attorneys' fees and disbursements) of, or incident to, the enforcement
of any of the provisions hereof shall be recoverable from the proceeds
of the sale or other disposition of the Pledged Collateral.
(b) If the Collateral Agent shall determine to exercise its
right to sell any or all of the Pledged Shares pursuant to Section 12(a)
above, and if in the opinion of counsel for the Collateral Agent it is
necessary, or if in the opinion of the Collateral Agent it is advisable,
to have the Pledged Shares or that portion thereof to be sold,
registered under the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), BPC will cause the Issuer to (i) execute
and deliver, and cause its directors and officers to execute and
deliver, all at the Issuer's expense, all such instruments and
documents, and to do or cause to be done all such other acts and things
as may be necessary or, in the opinion of the Collateral Agent,
advisable to register such Pledged Shares under the provisions of the
Securities Act, (ii) cause the registration statement relating thereto
to become effective and to remain effective for a period of 180 days
from the date of the first public offering of such Pledged Shares, or
that portion thereof to be sold and (iii) make all amendments thereto
and/or to the related prospectus that, in the opinion of the Collateral
Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. BPC agrees to
cause the Issuer to comply with the provisions of the securities or
"Blue Sky" laws of any jurisdiction that the Collateral Agent shall
designate for the sale of the Pledged Shares and to make available to
the Issuer's security holders, as soon as practicable, an earnings
statement (which need not be audited) that will satisfy the provisions
of Section 11(a) of the Securities Act. BPC will cause such Issuer to
furnish to the Collateral Agent such number of copies as the Collateral
Agent may reasonably request of each preliminary and final prospectus,
to notify the Collateral Agent promptly of the happening of any event as
a result of which any then effective prospectus includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of then existing circumstances, and to cause the
Collateral Agent to be furnished with such number of copies as the
Collateral Agent may request of such supplement to or amendment of such
prospectus. BPC will cause the Issuer, to the extent permitted by law,
to indemnify, defend and hold harmless the Collateral Agent and the
Holders of Notes from and against all losses, liabilities, expenses or
claims (including reasonable legal expenses and the reasonable costs of
investigation) that the Collateral Agent or the Holders of Notes may
incur under the Securities Act or otherwise, insofar as such losses,
liabilities, expenses or claims arise out of or are based upon any
alleged untrue statement of a material fact contained in such
registration statement (or any amendment thereto) or in any preliminary
or final prospectus (or any amendment or supplement thereto), or arise
out of or are based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except to the extent that any such losses,
liabilities, expenses or claims arise solely out of or are based upon
any such alleged untrue statement made or such alleged omission to state
a material fact included or excluded on the written direction of the
Collateral Agent. BPC will cause the Issuer to bear all costs and
expenses of carrying out its obligations hereunder.
(c) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of the
Pledged Collateral may be effected after a Default or an Event of
Default, BPC agrees that upon the occurrence or existence of any Default
or Event of Default, the Collateral Agent may, from time to time,
attempt to sell all or any part of the Pledged Collateral by means of a
private placement, restricting the prospective purchasers to those who
will represent and agree that they are purchasing for investment only
and not for distribution. In so doing, the Collateral Agent may solicit
offers to buy the Pledged Collateral, or any part of it, for cash, from
a limited number of investors who might be interested in purchasing the
Pledged Collateral. BPC
acknowledges and agrees that any such private sale may result in prices
and terms less favorable 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 Collateral 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
Issuer to register such securities for public sale under the Securities
Act, or under applicable state securities laws, even if the Issuer
agrees to do so.
(d) BPC further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Collateral pursuant to this
Section 12 valid and binding and in compliance with any and all other
applicable requirements of law. BPC further agrees that a breach of any
of the covenants contained in this Section 12 will cause irreparable
injury to the Collateral Agent and the Holders of Notes, that the
Collateral Agent and the Holders of Notes have no adequate remedy at law
in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 12 shall be specifically enforceable
against BPC, and BPC hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for
a defense that no Default or Event of Default has occurred under the
Indenture.
SECTION 13. Irrevocable Authorization and Instruction to the Issuer.
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BPC hereby authorizes and instructs the Issuer to comply with any
instruction received by the Issuer from the Collateral Agent that (i)
states that a Default or an Event of Default has occurred and (ii) is
otherwise in accordance with the terms of this Agreement, without any other
or further instructions from BPC, and BPC agrees that the Issuer shall be
fully protected in so complying.
SECTION 14. Fees and Expenses. BPC will upon demand pay to the
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Collateral Agent such fees set forth in the letter dated June 6, 1996, from
the Trustee and Collateral Agent to BPC and as may be agreed upon from time
to time in writing and the amount of any reasonable fees and disbursements
of its counsel, of any investment banking firm, business broker or other
selling agent and of any other experts and agents retained by the
Collateral Agent) that the Collateral Agent may incur in connection with
(i) the administration of this Agreement, (ii) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Pledged Collateral, (iii) the exercise or enforcement of any of the rights
of the Collateral Agent and the Holders of Notes hereunder or (iv) the
failure by BPC to perform or observe any of the provisions hereof, in each
case other than any such expenses that arise from the gross negligence or
willful misconduct of the Trustee or Collateral Agent.
SECTION 15. Note Interest Absolute. All rights of the Collateral
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Agent and the Holders of Notes and the security interests created
hereunder, and all obligations of BPC hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the Obligations; or
(d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, BPC in respect of the
Obligations or of this Agreement.
SECTION 16. Application of Proceeds. Upon the occurrence and during
-----------------------
the continuance of a Default or an Event of Default, the proceeds of any
sale of, or other realization upon, all or any part of the Pledged
Collateral and any cash held shall be applied by the Collateral Agent in
the following order of priorities:
first, to payment of the expenses of such sale or other realization,
-----
including reasonable compensation to agents and counsel for the Collateral
Agent, and all expenses, liabilities and advances incurred or made by the
Collateral Agent in connection therewith, and any other unreimbursed fees
and expenses for which the Collateral Agent is to be reimbursed pursuant to
Section 14 hereof;
second, to the Trustee for the payment of all sums due and owing to
------
it pursuant to Section 7.07 of the Indenture;
third, to the ratable payment (based on the principal amount of Notes
-----
deemed by the Indenture to be outstanding at the time of distribution) of
accrued and unpaid interest and Liquidated Damages, if any, on such
outstanding Notes;
fourth, to the ratable payment (based on the principal amount of
------
Notes deemed by the Indenture to be outstanding at the time of
distribution) of unpaid principal of such outstanding Notes;
fifth, to the ratable payment (based on the principal amount of Notes
-----
deemed by the Indenture to be outstanding at the time of distribution) of
all other Obligations, until all Obligations shall have been paid in full;
and
sixth, to payment to BPC or its successors or assigns, or as a court
-----
of competent jurisdiction may direct, of any surplus then remaining from
such proceeds.
SECTION 17. Uncertificated Securities. Notwithstanding anything to
-------------------------
the contrary contained herein, if any Pledged Shares (whether now owned or
hereafter acquired) are uncertificated Pledged Shares, BPC shall promptly
notify the Collateral Agent, and shall promptly take all actions required
to perfect the security interest of the Collateral Agent under applicable
law (including, in any event, under Sections 8-313 and 8-321 of the New
York Uniform Commercial Code). BPC further agrees to take such actions as
the Collateral Agent deems necessary or desirable to effect the foregoing
and to permit the Collateral Agent to exercise any of its rights and
remedies hereunder, and agrees to provide an Opinion of Counsel
satisfactory to the Pledgee with respect to any such pledge of
uncertificated Pledged Shares promptly upon request of the Collateral
Agent.
SECTION 18. Miscellaneous Provisions.
------------------------
Section 18.1 Notices. All notices, approvals, consents or
-------
other communications required or desired to be given hereunder shall be in
the form and manner as set forth in Section 11.02 of the Indenture, and
delivered to the addresses set forth in such Section, or, in the case of
the Collateral Agent, to: First Trust of New York, National Association,
100 Wall Street, Suite 1600, New York, New York 10005, Attention: Corporate
Trust Administration, Telecopy No. (212) 809-5459.
Section 18.2 Certificate and Opinion as to Conditions
----------------------------------------
Precedent. Upon any request or application by BPC to the Collateral Agent
- ---------
to take any action or omit to take any action under this Agreement, BPC
shall deliver to the Collateral Agent an Officer's Certificate and/or an
Opinion of Counsel in accordance with the requirements of Section 10.03,
10.04 and 10.05 of the Indenture.
Section 18.3 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Agreement may not be used to interpret another pledge, security or
debt agreement of BPC, the Issuer or any subsidiary thereof. No such
pledge, security or debt agreement may be used to interpret this Agreement.
Section 18.4 Severability. The provisions of this Agreement
------------
are severable, and if any clause or provision shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause
or provision in any other jurisdiction or any other clause or provision of
this Agreement in any jurisdiction.
Section 18.5 No Recourse Against Others. No director,
--------------------------
officer, employee, stockholder or affiliate, as such, of BPC or the Issuer
shall have any liability for any obligations of BPC under this Agreement or
for any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder of Notes, by accepting a Note, waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
Section 18.6 Headings. The headings of the Articles and
--------
Sections of this Agreement have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 18.7 Counterpart Originals. This Agreement may be
---------------------
signed in two or more counterparts. Each signed copy shall be an original,
but all of them together represent one and the same agreement. Each
counterpart may be executed and delivered by telecopy, if such delivery is
promptly followed by the original manually signed copy sent by overnight
courier.
Section 18.8 Benefits of Agreement. Nothing in this
---------------------
Agreement, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Holders of Notes,
any benefit or any legal or equitable right, remedy or claim under this
Agreement.
Section 18.9 Amendments, Waivers and Consents. Any amendment
--------------------------------
or waiver of any provision of this Agreement and any consent to any
departure by BPC from any provision of this Agreement shall be effective
only if made or given in compliance with all of the terms and provisions of
the Indenture necessary for amendments or waivers of, or consents to any
departure by BPC from any provision of the Indenture, as applicable, and
neither the Collateral Agent or the Trustee nor any Holder of Notes shall
be deemed, by any act, delay, indulgence, omission or otherwise, to have
waived any right
or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof.
Failure of the Collateral Agent or any Holder of Notes to exercise, or
delay in exercising, any right, power or privilege hereunder shall not
operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver
by the Collateral Agent or any Holder of Notes of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right
or remedy that the Collateral Agent or such Holder of Notes would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive
of any rights or remedies provided by law.
Section 18.10 Interpretation of Agreement. Time is of the
---------------------------
essence in each provision of this Agreement of which time is an element.
All terms not defined herein or in the Indenture shall have the meaning set
forth in the applicable UCC, except where the context otherwise requires.
To the extent a term or provision of this Agreement conflicts with the
Indenture and is not dealt with herein with more specificity, the Indenture
shall control with respect to the subject matter of such term or provision.
Acceptance of or acquiescence in a course of performance rendered under
this Agreement shall not be relevant to determine the meaning of this
Agreement even though the accepting or acquiescing party had knowledge of
the nature of the performance and opportunity for objection.
Section 18.11 Continuing Security Interest; Transfer of Notes.
-----------------------------------------------
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until the payment
in full of all the Obligations and all the fees and expenses owing to the
Collateral Agent, (ii) be binding upon BPC, its successors and assigns, and
(iii) inure, together with the rights and remedies of the Collateral Agent
hereunder, to the benefit of the Collateral Agent, the Holders of Notes and
their respective successors, transferees and assigns.
Section 18.12 Reinstatement. This Agreement shall continue to be
-------------
effective or be reinstated if at any time any amount received by the
Collateral Agent or any Holder of Notes in respect of the Obligations is
rescinded or must otherwise be restored or returned by the Collateral Agent
or any Holder of Notes upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of BPC or upon the appointment of any
receiver, intervenor, conservator, trustee or similar official for BPC or
any substantial part of its assets, or otherwise, all as though such
payments had not been made.
Section 18.13 Survival of Provisions. All representations,
----------------------
warranties and covenants of BPC contained herein shall survive the
execution and delivery of this Agreement, and shall terminate only upon the
full and final payment and performance by BPC of the Obligations; except
that the obligations of BPC pursuant to Sections 14 and 18.15 of this
Agreement shall survive the termination or discharge of this Agreement
(including any discharge pursuant to Bankruptcy Law) or the resignation or
removal of the Collateral Agent.
Section 18.14 Waivers. BPC waives presentment and demand for
-------
payment of any of the Obligations, protest and notice of dishonor or
default with respect to any of the Obligations, and all other notices to
which BPC might otherwise be entitled, except as otherwise expressly
provided herein or in the Indenture.
Section 18.15 Authority of the Collateral Agent.
---------------------------------
(a) The Collateral Agent shall have and be entitled to exercise
all powers hereunder that are specifically granted to the Collateral
Agent by the terms hereof, together with such powers as are reasonably
incident thereto. The Collateral Agent may perform any of its duties
hereunder or in connection with the Pledged Collateral by or through
agents or employees and shall be entitled to retain counsel of its
choice and to act in reliance upon the advice of such counsel concerning
all such matters. Neither the Collateral Agent nor any director,
officer, employee, attorney or agent of the Collateral Agent shall be
responsible for the validity, effectiveness or sufficiency hereof or of
any document or security furnished pursuant hereto. The Collateral
Agent and its directors, officers, employees, attorneys and agents shall
be entitled to rely on any communication, instrument or document
believed by it or them to be genuine and correct and to have been signed
or sent by the proper person or persons. BPC agrees to indemnify and
hold harmless the Collateral Agent, the Holders of Notes and any other
Person from and against any and all costs, expenses (including the
reasonable fees and disbursements of counsel (including, the allocated
costs of inside counsel)), claims and liabilities incurred by the
Collateral Agent, the Holders of Notes or such Person hereunder, unless
such claim or liability shall be due to willful misconduct or gross
negligence on the part of the Collateral Agent, the Holders of Notes or
such Person.
(b) BPC acknowledges that the rights and responsibilities of
the Collateral Agent under this Agreement with respect to any action
taken by the Collateral Agent or the exercise or non-exercise by the
Collateral Agent of any option, right, request, judgment or other right
or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Collateral Agent and the Holders of
Notes, be governed by the Indenture and by such other agreements with
respect thereto as may exist from time to time among them, but, as
between the Collateral Agent and BPC, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Holders of Notes
with full and valid authority so to act or refrain from acting, and BPC
shall not be obligated or entitled to make any inquiry respecting such
authority.
(c) No provision of this Indenture shall require the Collateral
Agent to expend or risk its own funds or incur any liability. The
Collateral Agent shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any Holders,
unless such Holder shall have offered to the Collateral Agent security
and indemnity satisfactory to it against any loss, liability or expense.
Section 18.16 Resignation or Removal of the Collateral Agent.
----------------------------------------------
Until such time as the Obligations shall have been paid in full, the
Collateral Agent may at any time, by giving written notice to BPC and
Holders of Notes, resign and be discharged of the responsibilities hereby
created, such resignation to become effective upon (i) the appointment of a
successor Collateral Agent and (ii) the acceptance of such appointment by
such successor Collateral Agent. As promptly as practicable after the
giving of any such notice, the Holders of Notes shall appoint a successor
Collateral Agent, which successor Collateral Agent shall be reasonably
acceptable to BPC. If no successor Collateral Agent shall be appointed and
shall have accepted such appointment within 60 days after the Collateral
Agent gives the aforesaid notice of resignation, the Collateral Agent may
apply to any court of competent jurisdiction to appoint a successor
Collateral Agent to act until such time, if any, as a successor shall have
been
appointed as provided in this Section 18.16. Any successor so appointed by
such court shall immediately and without further act be superseded by any
successor Collateral Agent appointed by the Holders of a majority of the
then outstanding Notes, as provided in this Section 18.16. Simultaneously
with its replacement as Collateral Agent hereunder, the Collateral Agent so
replaced shall deliver to its successor all documents, instruments,
certificates and other items of whatever kind (including, without
limitation, the certificates and instruments evidencing the Pledged
Collateral and all instruments of transfer or assignment) held by it
pursuant to the terms hereof. The Collateral Agent that has resigned shall
be entitled to fees, costs and expenses to the extent incurred or arising,
or relating to events occurring, before its resignation or removal.
Section 18.17 Release; Termination of Agreement.
---------------------------------
(a) Subject to the provisions of Section 18.12 hereof, this
Agreement shall terminate (i) upon full and final payment and
performance of the Obligations (and upon receipt by the Collateral Agent
of BPC's written certification that all such Obligations have been
satisfied) and payment in full of all fees and expenses owing by BPC to
the Collateral Agent or (ii) on the day after the first anniversary of
the Legal Defeasance of all of the Obligations pursuant to Section 8.02
of the Indenture (other than those surviving Obligations specified
therein). At such time, the Collateral Agent shall, at the request of
BPC, reassign and redeliver to BPC all of the Pledged Collateral
hereunder that has not been sold, disposed of, retained or applied by
the Collateral Agent in accordance with the terms hereof. Such
reassignment and redelivery shall be without warranty by or recourse to
the Collateral Agent, except as to the absence of any prior assignments
by the Collateral Agent of its interest in the Pledged Collateral, and
shall be at the expense of BPC.
(b) BPC agrees that it will not, except as permitted by the
Indenture, sell or dispose of, or grant any option or warrant with
respect to, any of the Pledged Collateral; provided, however, that if
BPC shall sell any of the Pledged Collateral in accordance with the
terms of the Indenture, including the requirement that BPC apply the Net
Proceeds of such sale in accordance with Section 4.10 of the Indenture,
the Collateral Agent shall, at the request of BPC and subject to
requirements of Section 10.03, 10.04 and 10.05 of the Indenture, release
the Pledged Collateral subject to such sale free and clear of the Lien
and security interest under this Agreement.
Section 18.18 Final Expression. This Agreement, together with
----------------
any other agreement executed in connection herewith, is intended by the
parties as a final expression of their Agreement and is intended as a
complete and exclusive statement of the terms and conditions thereof.
Section 18.19 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
-------------------------------------------------
OF JURY TRIAL; WAIVER OF DAMAGES.
- --------------------------------
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER
THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN BPC, THE COLLATERAL AGENT AND THE HOLDERS OF NOTES IN CONNECTION
WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND DECISIONS OF THE STATE OF
NEW YORK.
(ii) EXCEPT AS PROVIDED IN THE NEXT PARAGRAPH AND IN
PARAGRAPH (vi) BELOW, BPC, THE COLLATERAL AGENT AND THE HOLDERS OF NOTES
AGREE THAT ALL DISPUTES BETWEEN OR AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL
COURTS LOCATED IN NEW YORK, NEW YORK, BUT BPC, THE COLLATERAL AGENT AND THE
HOLDERS OF NOTES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. BPC WAIVES IN
ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(iii) BPC AGREES THAT THE COLLATERAL AGENT SHALL, IN ITS OWN
NAME OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, HAVE THE RIGHT,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST BPC OR ITS
PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH TO
ENABLE THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL AGENT.
BPC AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE COLLATERAL
AGENT. BPC WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT IN WHICH THE COLLATERAL AGENT HAS COMMENCED A PROCEEDING DESCRIBED IN
THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(iv) BPC, THE COLLATERAL AGENT AND THE HOLDERS OF NOTES EACH
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM
IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(v) BPC HEREBY IRREVOCABLY DESIGNATES CT CORPORATION AS THE
DESIGNEE, APPOINTEE AND AGENT OF BPC TO RECEIVE, FOR AND ON BEHALF OF BPC,
SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT. IT IS UNDERSTOOD THAT NOTICE AND A COPY OF SUCH PROCESS SERVED
ON SUCH AGENT, WILL BE FORWARDED PROMPTLY TO BPC, BUT THE FAILURE OF BPC TO
RECEIVE SUCH NOTICE AND COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF
SUCH PROCESS. BPC FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS 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 BPC AT ITS ADDRESS SET FORTH IN SECTION 11.02 OF
THE INDENTURE, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) BUSINESS DAYS
AFTER SUCH MAILING.
(vi) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL
AGENT OR ANY HOLDER OF NOTES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BPC IN
ANY OTHER JURISDICTION.
(vii) BPC HEREBY AGREES THAT NEITHER THE COLLATERAL AGENT NOR
ANY HOLDER OF NOTES SHALL HAVE ANY LIABILITY TO BPC (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY BPC IN CONNECTION WITH,
ARISING OUT OF, OR IN ANY WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED AND
THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR
EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL
AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE COLLATERAL
AGENT OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE, THAT SUCH LOSSES WERE
THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE COLLATERAL AGENT OR SUCH
HOLDER OF NOTES, AS THE CASE MAY BE, CONSTITUTING GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
(viii) BPC WAIVES ALL RIGHTS OF NOTICE AND HEARING OF ANY KIND
PRIOR TO THE EXERCISE BY THE COLLATERAL AGENT OR ANY HOLDER OF NOTES OF ITS
RIGHTS DURING THE CONTINUANCE OF A DEFAULT OR AN EVENT OF DEFAULT TO
REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR
LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. BPC WAIVES
THE POSTING OF ANY BOND OTHERWISE REQUIRED OF THE COLLATERAL AGENT OR ANY
HOLDER OF NOTES IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO
OBTAIN POSSESSION OF, REPLEVY, ATTACH OR LEVY UPON COLLATERAL OR OTHER
SECURITY FOR THE OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF THE COLLATERAL AGENT OR ANY HOLDER OF NOTES, OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY
OR PERMANENT INJUNCTION THIS AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT
BETWEEN BPC, THE COLLATERAL AGENT AND THE HOLDERS OF NOTES.
Section 18.20 Acknowledgments. BPC hereby acknowledges that:
---------------
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement;
(b) neither the Collateral Agent nor any Holder of Notes has
any fiduciary relationship to BPC, and the relationship between the
Collateral Agent and the Holders of Notes, on the one hand, and BPC, on
the other hand, is solely that of a secured party and a creditor; and
(c) no joint venture exists among the Holders of Notes or among
BPC and the Holders of Notes.
[Pledge Agreement Signature Page]
IN WITNESS WHEREOF, BPC and the Collateral Agent have each caused this
Agreement to be duly executed and delivered as of the date first above written.
PLEDGOR:
BPC HOLDING CORPORATION
By: /s/ Martin R. Imbler
--------------------------------------
Name: Martin R. Imbler
Title: President
COLLATERAL AGENT:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ Alfia Monastra
--------------------------------------
Name: Alfia Monastra
Title: Assistant Vice President