SECURITIES PLEDGE AGREEMENT
THIS SECURITIES PLEDGE AGREEMENT (this "Pledge Agreement") is made and
entered into as of this [24th] day April, 2002 by ALLTRISTA CORPORATION, a
Delaware corporation (the "Borrower" and a "Grantor"), EACH OF THE UNDERSIGNED
SUBSIDIARIES OF THE BORROWER AND EACH OTHER PERSON WHO SHALL BECOME A PARTY
HERETO BY EXECUTION OF A PLEDGE JOINDER AGREEMENT (each a "Pledgor" and,
collectively with the Borrower, the "Pledgors") and BANK OF AMERICA, N.A., a
national banking association, as Administrative Agent (as defined in the Credit
Agreement referred to below) for each of the Lenders (as defined in the Credit
Agreement referred to below and, collectively with the Administrative Agent, the
"Secured Parties") now or hereafter party to the Credit Agreement (as defined
below). All capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the Borrower a
revolving credit facility with a letter of credit sublimit and a swing line
sublimit and a term loan facility pursuant to the Credit Agreement dated as of
April [24], 2002 among the Borrower, the Administrative Agent, National City
Bank of Indiana, as Documentation Agent, Canadian Imperial Bank of Commerce, as
Syndication Agent and the Lenders (as from time to time amended, revised,
modified, supplemented, amended and restated or replaced, renewed, refunded or
refinanced, the "Credit Agreement"); and
WHEREAS, each Pledgor is a Domestic Subsidiary of the Borrower and will
materially benefit from the Loans and other credit facilities (including Letters
of Credit) made or to be made available under the Credit Agreement, and in
connection therewith and pursuant to the terms of the Credit Agreement each
Domestic Subsidiary is a party (as signatory or by joinder) to a Guaranty
pursuant to which it has guaranteed the full and prompt payment and performance
of the Obligations and is required to execute and deliver this Pledge Agreement;
and
WHEREAS, the Secured Parties are unwilling to make available or
maintain the credit facilities under the Credit Agreement unless the Pledgors
enter into this Pledge Agreement; and
WHEREAS, each of (i) the Borrower, as collateral security for the
payment and performance of its Obligations, and the payment and performance of
its obligations and liabilities (whether now existing or hereafter arising)
hereunder or under any of the other Loan Documents to which it is now or
hereafter becomes a party, and (ii) each Guarantor, as collateral security for
the payment and performance of its Guarantor's Obligations (as defined in the
Guaranty to which it is a party), and the payment and performance of its
obligations and liabilities (whether now existing or hereafter arising)
hereunder or under any of the other Loan Documents to which it is now or
hereafter becomes a party (such obligations and liabilities of the Pledgors
described in clauses (i) and (ii) being referred to as "Secured Obligations"),
is willing to pledge and grant to the Administrative Agent for the benefit of
the Secured Parties a security interest in (i) 65% of
the Voting Securities (or if any Pledgor shall own less than 65% of such
Voting Securities, then 100% of the Voting Securities owned by such Pledgor)
and 100% of the other Subsidiary Securities of each of its Direct Foreign
Subsidiaries, and (ii) all of the Subsidiary Securities of all of its other
Domestic Subsidiaries, in each case, whether now existing or hereafter created
or acquired (collectively, the "Pledged Interests"), and certain related
property, including without limitation the Pledged Interests more particularly
described on Schedule I hereto (such Subsidiaries, together with all other
Subsidiaries whose Subsidiary Securities may be required to be subject to this
Pledge Agreement from time to time, are hereinafter referred to collectively
as the "Pledged Subsidiaries"); and
WHEREAS, the Secured Parties are unwilling to enter into the Loan
Documents unless each Pledgor enters into this Pledge Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and to make or maintain the credit facilities provided for
therein available to or for the account of the Borrower, and in consideration of
the premises and the mutual covenants contained herein, the parties hereto agree
as follows:
1. PLEDGE OF PLEDGED INTERESTS; OTHER COLLATERAL.
(a) As collateral security for the payment and performance by
each Pledgor of its now or hereafter existing Secured Obligations, each
Pledgor hereby grants, pledges and collaterally assigns to the
Administrative Agent for the benefit of the Secured Parties a first
priority security interest in all of the following items of property in
which it now has or may at any time hereafter acquire an interest or
the power to transfer rights therein, and wheresoever located:
(i) the Pledged Interests; and
(ii) all money, securities, security entitlements and
other investment property, dividends, rights, general
intangibles and other property at any time and from time to
time (x) declared or distributed in respect of or in exchange
for or on conversion of any Pledged Interest, or (y) by its or
their terms exchangeable or exercisable for or convertible
into any Pledged Interest; and
(iii) all other property of whatever character or
description, including money, securities, security
entitlements and other investment property, and general
intangibles hereafter delivered to the Administrative Agent in
substitution for or as an addition to any of the foregoing;
and
(iv) all securities accounts to which may at any
time be credited any or all of the foregoing or any proceeds
thereof and all certificates and instruments representing or
evidencing any of the foregoing or any proceeds thereof; and
(iv) all proceeds of any of the foregoing.
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All such Pledged Interests, certificates, instruments, cash,
securities, interests, dividends, rights and other property referred to
in clauses (i) through (iv) of this Section 1 are herein collectively
referred to as the "Collateral."
(b) Subject to Section 10(a), each Pledgor agrees to deliver
all certificates, instruments or other documents representing any
Collateral to the Administrative Agent at such location as the
Administrative Agent shall from time to time designate by written
notice pursuant to Section 22 for its custody at all times until
termination of this Pledge Agreement, together with such instruments of
assignment and transfer as requested by the Administrative Agent.
(c) Each Pledgor agrees to execute and deliver, or cause to be
executed and delivered by other Persons, at Pledgor's expense, all
share certificates, documents, instruments, agreements, financing
statements (and amendments thereto and continuations thereof),
assignments, control agreements, or other writings as the
Administrative Agent may reasonably request from time to time to carry
out the terms of this Pledge Agreement or to protect or enforce the
Administrative Agent's Lien and security interest in the Collateral
hereunder granted to the Administrative Agent for the benefit of the
Secured Parties and further agrees to do and cause to be done upon the
Administrative Agent's reasonable request, at Pledgor's expense, all
things determined by the Administrative Agent to be reasonably
necessary to perfect and keep in full force and effect the Lien in the
Collateral hereunder granted to the Administrative Agent for the
benefit of the Secured Parties, including the prompt payment of all
out-of-pocket fees and expenses incurred in connection with any filings
made to perfect or continue the Lien and security interest in the
Collateral hereunder granted in favor of the Administrative Agent for
the benefit of the Secured Parties.
(d) All filing fees, advances, charges, costs and expenses,
including reasonable Attorney Costs, incurred or paid by the
Administrative Agent or any Lender in exercising any right, power or
remedy conferred by this Pledge Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations secured
hereunder and shall be paid to the Administrative Agent for the benefit
of the Secured Parties by the Pledgor in respect of which the same was
incurred immediately upon written demand therefor detailing such
amounts, and any amounts not so paid on demand (in addition to other
rights and remedies resulting from such nonpayment) shall bear interest
from the date of demand until paid in full at the Default Rate.
(e) Each Pledgor agrees to register and cause to be registered
the interest of the Administrative Agent, for the benefit of the
Secured Parties, in the Collateral on its own books and records and the
registration books of each of the Pledged Subsidiaries.
2. STATUS OF PLEDGED INTERESTS. Each Pledgor hereby represents,
warrants and covenants to the Administrative Agent for the benefit of the
Secured Parties, with respect to itself and the Collateral as to which it has
or acquires any interest, that:
(a) All of the Pledged Interests are, as of the date of
execution of this Pledge Agreement or Pledge Joinder Agreement by each
Pledgor pledging such Pledged
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Interests (such date as applicable with respect to each Pledgor, its
"Applicable Date"), and shall at all times thereafter be validly
issued and outstanding, fully paid and non-assessable and constitute
(i) 65% of the issued and outstanding Voting Securities (or if any
Pledgor shall own less than 65% of such Voting Securities, then 100%
of the Voting Securities owned by such Pledgor) and 100% of the other
issued and outstanding Subsidiary Securities of each Direct Foreign
Subsidiary constituting a Pledged Subsidiary and (ii) all of the
issued and outstanding Subsidiary Securities of all other Domestic
Subsidiaries constituting Pledged Subsidiaries, and are accurately
described on Schedule I.
(b) The Pledgor is as at its Applicable Date and shall at all
times thereafter be the sole registered and record and beneficial owner
of the Pledged Interests, free and clear of all Liens (other than Liens
permitted by Section 7.01(c) or 7.01(h) of the Credit Agreement),
charges, equities, options, hypothecations, encumbrances and
restrictions on pledge or transfer, including transfer of voting rights
(other than the pledge hereunder and applicable restrictions pursuant
to federal and state and applicable foreign securities laws). Without
limiting the foregoing, the Pledged Interests are not and will not be
subject to any voting trust, shareholders agreement, right of first
refusal, voting proxy, power of attorney or other similar arrangement
(other than the rights hereunder in favor of the Administrative Agent).
(c) At no time shall any Pledged Interests (i) be held or
maintained in the form of a security entitlement or credited to any
securities account and (ii) which constitute a "security" (or as to
which the related Pledged Subsidiary has elected to have treated as a
"security") under Article 8 of the Uniform Commercial Code of the State
of New York or of any other jurisdiction whose laws may govern (the
"UCC") be maintained in the form of uncertificated securities. With
respect to Pledged Interests that are "securities" under the UCC, or as
to which the issuer has elected at any time to have such interests
treated as "securities" under the UCC, such Pledged Interests are, and
shall at all times be, represented by the share certificates listed on
Schedule I hereto, which share certificates, with stock powers duly
executed in blank by the Pledgor, have been delivered to the
Administrative Agent or are being delivered to the Administrative Agent
simultaneously herewith or, in the case of Additional Interests as
defined in Section 21, shall be delivered pursuant to Section 21. In
addition, with respect to all Pledged Interests, including Pledged
Interests that are not "securities" under the UCC and as to which the
applicable Pledged Subsidiary has not elected to have such interests
treated as "securities" under the UCC, the Pledgor has at its
Applicable Date delivered to the Administrative Agent (or has
previously delivered to the Administrative Agent or, in case of
Additional Interests shall deliver pursuant to Section 21) Uniform
Commercial Code financing statements on Form UCC-1 (or appropriate
amendments thereto) duly executed (if necessary) by or on behalf of the
Pledgor as "debtor" and naming the Administrative Agent for the benefit
of the Secured Parties as "secured party," in form, substance and
number sufficient in the reasonable opinion of the Administrative Agent
to be filed in all UCC filing offices and in all jurisdictions in which
filing is necessary or advisable to perfect in favor of the
Administrative Agent for the benefit of the Secured Parties the Lien on
such Pledged Interests, together with all required filing fees. Without
limiting the foregoing provisions of this Section 2(c), with respect to
any Pledged Interests issued
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by any Direct Foreign Subsidiary, Pledgor shall deliver or cause to
be delivered, (i) in addition to or in substitution for all or any of
the foregoing items, as the Administrative Agent may elect, such
other instruments, certificates, agreements, notices, filings, and
other documents, and take or cause to be taken such other action, as
the Administrative Agent may reasonably determine to be necessary
under the laws of the jurisdiction of formation of such Direct
Foreign Subsidiary, to grant, perfect and protect as a first priority
lien in such Collateral in favor of the Administrative Agent for the
benefit of the Lenders, and (ii) if the Administrative Agent shall
reasonably determine it to be necessary, an opinion of counsel
reasonably acceptable in form and substance to the Administrative
Agent issued by a law firm reasonably acceptable to the
Administrative Agent licensed to practice law in such foreign
jurisdiction, addressing with respect to such Pledged Interests the
matters described in Section 6.14 of the Credit Agreement.
(d) It has full corporate power, legal right and lawful
authority to execute this Pledge Agreement (and any Pledge Joinder
Agreement applicable to it) and to pledge, assign and transfer its
Pledged Interests in the manner and form hereof.
(e) The pledge, assignment and delivery of its Pledged
Interests (along with undated stock powers executed in blank, financing
statements and other agreements referred to in Section 2(c) hereof) to
the Administrative Agent for the benefit of the Secured Parties
pursuant to this Pledge Agreement (or any Pledge Joinder Agreement)
creates or continues, as applicable, a valid and perfected first
priority security interest in such Pledged Interests in favor of the
Administrative Agent for the benefit of the Secured Parties, securing
the payment of the Secured Obligations, assuming, in the case of the
Pledged Interests which constitute certificated "securities" under the
UCC, continuous and uninterrupted possession by or on behalf of the
Administrative Agent. The Pledgor will defend the Secured Parties'
right, title and security interest in and to the Collateral against the
claims and demands of all persons whomsoever.
(f) Except as otherwise expressly provided herein or in the
Credit Agreement, none of the Pledged Interests (nor any interest
therein or thereto) shall be sold, transferred or assigned without the
Administrative Agent's prior written consent, which may be withheld for
any reason.
(g) It shall at all times cause the Pledged Interests of such
Pledgor that constitute "securities" (or as to which the issuer elects
to have treated as "securities") under the UCC to be represented by the
certificates now and hereafter delivered to the Administrative Agent in
accordance with Sections 1, 2 and 21 hereof and that it shall cause
each of the Pledged Subsidiaries as to which it is the Pledgor not to
issue any Subsidiary Securities, or securities convertible into, or
exchangeable or exercisable for, Subsidiary Securities, at any time
during the term of this Pledge Agreement unless the Pledged Interests
of such Pledge Subsidiary are issued solely to either (y) such Pledgor
who shall immediately comply with Sections 2 and 21 hereof with respect
to such property or (z) the Borrower or a Guarantor who shall
immediately pledge such additional Subsidiary Securities to the
Administrative Agent for the benefit of the Secured Parties pursuant to
Section 21 or 23 hereof, as applicable, on substantially identical
terms as are contained herein and deliver or cause to be delivered the
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appropriate documents described in Section 2(c) hereof to the
Administrative Agent and take such further actions as the
Administrative Agent may deem necessary in order to perfect a first
priority security interest in such Subsidiary Securities.
(h) The exact legal name and address, type of Person,
jurisdiction of formation, jurisdiction of formation identification
number, and location of the chief executive office of such Pledgor are
(i) with respect to each Pledgor granting a Lien to the Administrative
Agent under a Security Instrument at the Closing Date, as specified on
Schedule 2A.03 to the Credit Agreement, and (ii) with respect to each
other Pledgor, as specified on Schedule II attached hereto. No Pledgor
shall change its name, jurisdiction of formation (whether by
reincorporation, merger or otherwise), or the location of its chief
executive office, except upon giving not less than thirty (30) days'
prior written notice to the Administrative Agent and taking or causing
to be taken all such action at such Pledgor's expense as may be
reasonably requested by the Administrative Agent to perfect or maintain
the perfection of the Lien of the Administrative Agent in Collateral.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Administrative Agent shall be under no duty or
liability with respect to the collection, protection or preservation of
the Collateral, or otherwise, beyond the use of reasonable care in the
custody and preservation thereof while in its possession.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves
have been established in accordance with GAAP applied on a consistent
basis and provided that all enforcement proceedings in the nature of
levy or foreclosure are effectively stayed. Upon the failure of any
Pledgor to so pay or contest such taxes, charges, Liens or assessments,
or upon the failure of any Pledgor to pay any amount pursuant to
Section 1(c), the Administrative Agent at its option may pay or contest
any of them (the Administrative Agent having the sole right to
determine the legality or validity and the amount necessary to
discharge such taxes, charges, Liens or assessments) but shall not have
any obligation to make any such payment or contest. All sums so
disbursed by the Administrative Agent, including reasonable attorneys'
fees, court costs, expenses and other charges related thereto, shall be
payable on demand by the applicable Pledgor to the Administrative Agent
and shall be additional Secured Obligations secured by the Collateral,
and any amounts not so paid on demand (in addition to other rights and
remedies resulting from such nonpayment) shall bear interest from the
date of demand until paid in full at the Default Rate.
(c) Each Pledgor hereby irrevocably (i) authorizes the
Administrative Agent to file (with, or to the extent permitted by
applicable law, without the signature of the Pledgor appearing thereon)
financing statements (including amendments thereto and continuations
and copies thereof) showing such Pledgor as "debtor" at such time or
times and in all filing offices as the Administrative Agent may from
time to time reasonably determine to be necessary or advisable to
perfect or protect the rights of the Administrative Agent and the
Secured Parties hereunder, or otherwise to give effect to
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the transactions herein contemplated and (ii) irrevocably ratifies
and acknowledges all such actions taken by or on behalf of the
Administrative Agent prior to the Applicable Date.
4. DEFAULT. Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent is given full power and authority
to sell, assign, deliver or collect the whole or any part of the Collateral,
or any substitute therefor or any addition thereto, in one or more sales, with
or without any previous demands or demand of performance or, to the extent
permitted by law, notice or advertisement, in such order as the Administrative
Agent may elect; and any such sale may be made either at public or private
sale at the Administrative Agent's place of business or elsewhere, either for
cash or upon credit or for future delivery, at such price or prices as the
Administrative Agent may reasonably deem fair; and, to the extent not
prohibited by applicable Law, the Administrative Agent or any other Secured
Party may be the purchaser of any or all Collateral so sold and hold the same
thereafter in its own right free from any claim of any Pledgor or right of
redemption. Demands of performance, advertisements and presence of property
and sale and notice of sale are hereby waived to the extent permissible by
law. Any sale hereunder may be conducted by an auctioneer or any officer or
agent of the Administrative Agent. Each Pledgor recognizes that the
Administrative Agent may be unable to effect a public sale of the Collateral
by reason of certain prohibitions contained in the Securities Act of 1933, as
amended (the "Securities Act"), and applicable state law, and may be otherwise
delayed or adversely affected in effecting any sale by reason of present or
future restrictions thereon imposed by governmental authorities, and that as a
consequence of such prohibitions and restrictions the Administrative Agent may
(i) resort to one or more private sales to a restricted group of purchasers
who will be obliged to agree, among other things, to acquire the Collateral
for their own account, for investment and not with a view to the distribution
or resale thereof, or (ii) seek regulatory approval of any proposed sale or
sales, or (iii) limit the amount of Collateral sold to any Person or group.
Each Pledgor agrees and acknowledges that private sales so made may be at
prices and upon terms less favorable to such Pledgor than if such Collateral
was sold either at public sales or at private sales not subject to other
regulatory restrictions, and that the Administrative Agent, to the extent not
prohibited by applicable Law, has no obligation to delay the sale of any of
the Collateral for the period of time necessary to permit the Pledged
Subsidiary to register or otherwise qualify the Collateral, even if such
Pledged Subsidiary would agree to register or otherwise qualify such
Collateral for public sale under the Securities Act or applicable state law.
Each Pledgor further agrees, to the extent permitted by applicable law, that
the use of private sales made under the foregoing circumstances to dispose of
the Collateral shall be deemed to be dispositions in a commercially reasonable
manner. Each Pledgor hereby acknowledges that a ready market may not exist for
the Pledged Interests if they are not traded on a national securities exchange
or quoted on an automated quotation system and agrees and acknowledges that in
such event the Pledged Interests may be sold for an amount less than a pro
rata share of the fair market value of the Pledged Subsidiary's assets minus
its liabilities. In addition to the foregoing, the Secured Parties may
exercise such other rights and remedies as may be available under the Loan
Documents, at law (including without limitation the UCC) or in equity.
5. PROCEEDS OF SALE. The net cash proceeds resulting from the
collection, liquidation, sale or other disposition of the Collateral, to the
extent not prohibited by applicable Law, shall be applied first to the expenses
(including all Attorneys' Fees) of retaking, holding,
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storing, processing and preparing for sale, selling, collecting, liquidating
and the like, and then to the satisfaction of all Secured Obligations in
accordance with the terms of Section 2.13 and, as applicable Section
2.06(e)(iii) of the Credit Agreement. Each Grantor shall be liable to the
Administrative Agent, for the benefit of the Secured Parties, and shall pay to
the Administrative Agent, for the benefit of the Secured Parties, on demand
any deficiency which may remain after such sale, disposition, collection or
liquidation of the Collateral.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Administrative Agent
shall not be under any duty or obligation whatsoever to make or give any
presentments, demands for performances, notices of nonperformance, protests,
notice of protest or notice of dishonor in connection with any obligations or
evidences of indebtedness held thereby as collateral, or in connection with
any obligations or evidences of indebtedness which constitute in whole or in
part the Secured Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the
Administrative Agent as the Pledgor's attorney-in-fact for the purposes of
carrying out the provisions of this Pledge Agreement and taking any action and
executing any instrument which the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest; provided, that the Administrative Agent shall
have and may exercise rights under this power of attorney only upon the
occurrence and during the continuance of a Default or an Event of Default.
Without limiting the generality of the foregoing, upon the occurrence and
during the continuance of a Default or an Event of Default, the Administrative
Agent shall have the right and power to receive, endorse and collect all
checks and other orders for the payment of money made payable to any Pledgor
representing any dividend, interest payment, principal payment or other
distribution payable or distributable in respect to the Collateral or any part
thereof and to give full discharge for the same.
8. REINSTATEMENT. The granting of a security interest in the
Collateral and the other provisions hereof shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Secured Obligations is rescinded or must otherwise be returned by any Secured
Party or is repaid by any Secured Party in whole or in part in good faith
settlement of a pending or threatened avoidance claim, whether upon the
insolvency, bankruptcy or reorganization of any Pledgor or any other Credit
Party or otherwise, all as though such payment had not been made. The
provisions of this Section 8 shall survive repayment of all of the Secured
Obligations and the termination or expiration of this Pledge Agreement in any
manner, including but not limited to termination upon occurrence of the
Facility Termination Date. For purposes of this Pledge Agreement, "Facility
Termination Date" means the date as of which all of the following shall have
occurred: (a) the Borrower shall have permanently terminated the credit
facilities under the Loan Documents by final payment in full of all
Outstanding Amounts, together with all accrued and unpaid interest and fees
thereon, other than (i) the undrawn portion of Letters of Credit and (ii) all
letter of credit fees relating thereto accruing after such date (which fees
shall be payable solely for the account of the Issuing Bank and shall be
computed (based on interest rates then in effect) on such undrawn amounts to
the respective expiry dates of the Letters of Credit), in each case as have
been fully Cash Collateralized or as to which other arrangements with respect
thereto satisfactory to the Administrative Agent and the L/C Issuer shall have
been made; (b) all Related Swap Contracts shall have been terminated, expired
or Cash Collateralized; (c) all Commitments shall have terminated or expired;
and (d) the Borrower
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shall have fully, finally and irrevocably paid and satisfied in full all other
Obligations (except for Obligations consisting of continuing indemnities and
other contingent Obligations of the Borrower or any Loan Party that may be
owing to any Agent-Related Person or any Lender pursuant to the Loan Documents
and expressly survive termination of this Pledge Agreement).
9. WAIVER BY THE PLEDGORS. Each Pledgor waives to the extent
permitted by applicable law (a) any right to require any Secured Party or any
other obligee of the Secured Obligations to (i) proceed against any Person or
entity, including without limitation any Credit Party, (ii) proceed against or
exhaust any Collateral or other collateral for the Secured Obligations, or
(iii) pursue any other remedy in its power; (b) any defense arising by reason
of any disability or other defense of any other Person, or by reason of the
cessation from any cause whatsoever of the liability of any other Person or
entity, (c) any right of subrogation, (d) any right to enforce any remedy
which any Secured Party or any other obligee of the Secured Obligations now
has or may hereafter have against any other Person and any benefit of and any
right to participate in any collateral or security whatsoever now or hereafter
held by the Administrative Agent for the benefit of the Secured Parties. Each
Pledgor authorizes each Secured Party and each other obligee of the Secured
Obligations without notice (except notice required by applicable law) or
demand and without affecting its liability hereunder or under the Loan
Documents from time to time to: (x) take and hold security that may be granted
to it, other than the Collateral herein described, for the payment of such
Secured Obligations or any part thereof, and exchange, enforce, waive and
release the Collateral herein described or any part thereof or any such other
security; and (y) after the occurrence and during the continuance of an Event
of Default, apply such Collateral or other security and direct the order or
manner of sale thereof as such Secured Party or obligee in its discretion may
determine.
The Administrative Agent may at any time deliver (without
representation, recourse or warranty) the Collateral or any part thereof to a
Pledgor and the receipt thereof by such Pledgor shall be a complete and full
acquittance for the Collateral so delivered, and the Administrative Agent shall
thereafter be discharged from any liability or responsibility therefor.
10. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to any
of the Pledged Interests shall be subject to the pledge hereunder,
provided, however, that cash dividends paid to a Pledgor as record
owner of the Pledged Interests, to the extent permitted by the Credit
Agreement to be declared and paid, may be retained by such Pledgor so
long as no Default or Event of Default shall have occurred and be
continuing, free from any Liens hereunder.
(b) So long as no Default or Event of Default shall have
occurred and be continuing, the registration of the Collateral in the
name of a Pledgor as record and beneficial owner shall not be changed
and such Pledgor shall be entitled to exercise all voting and other
rights and powers pertaining to the Collateral for all purposes not
inconsistent with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Default or Event of Default, all rights of the Pledgors to receive and
retain cash dividends and other
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distributions upon the Collateral pursuant to subsection (a) above
shall cease and shall thereupon be vested in the Administrative Agent
for the benefit of the Secured Parties, and each Pledgor shall
promptly deliver, or shall cause to be promptly delivered, all such
cash dividends and other distributions with respect to the Pledged
Interests to the Administrative Agent (together, if the
Administrative Agent shall request, with the documents described in
Sections 1(c) and 2(c) hereof or other negotiable documents or
instruments so distributed) to be held by it hereunder or, at the
option of the Administrative Agent, to be applied to the Secured
Obligations. Pending delivery to the Administrative Agent of such
property, each Pledgor shall keep such property segregated from its
other property and shall be deemed to hold the same in trust for the
benefit of the Secured Parties.
(d) Upon the occurrence and during the continuance of any
Default or Event of Default, at the option of the Administrative Agent,
all rights of each of the Pledgors to exercise the voting or consensual
rights and powers which it is authorized to exercise pursuant to
subsection (b) above shall cease and the Administrative Agent may (but
shall not be obligated to), at its written request, cause such
Collateral to be registered in the name of the Administrative Agent or
its nominee or agent for the benefit of the Secured Parties and/or
exercise such voting or consensual rights and powers as appertain to
ownership of such Collateral, and to that end each Pledgor hereby
appoints the Administrative Agent as its proxy, with full power of
substitution, to vote and exercise all other rights as a shareholder
with respect to such Pledged Interests hereunder upon the occurrence
and during the continuance of any Default or Event of Default, which
proxy is coupled with an interest and is irrevocable until the Facility
Termination Date, and each Pledgor hereby agrees to provide such
further proxies as the Administrative Agent may request; provided,
however, that the Administrative Agent in its discretion may from time
to time refrain from exercising, and shall not be obligated to
exercise, any such voting or consensual rights or such proxy.
11. CONTINUED POWERS. Until the Facility Termination Date shall
have occurred, the power of sale and other rights, powers and remedies granted
to the Administrative Agent for the benefit of the Secured Parties hereunder
shall continue to exist and may be exercised by the Administrative Agent at
any time and from time to time irrespective of the fact that any of the
Secured Obligations or any part thereof may have become barred by any statute
of limitations or that any part of the liability of any Pledgor may have
ceased.
12. OTHER RIGHTS. The rights, powers and remedies given to the
Administrative Agent for the benefit of the Secured Parties by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to the
Administrative Agent or any Secured Party under any Related Agreement or by
virtue of any statute or rule of law. Any forbearance or failure or delay by the
Administrative Agent in exercising any right, power or remedy hereunder shall
not be deemed to be a waiver of such right, power or remedy, and any single or
partial exercise of any right, power or remedy hereunder shall not preclude the
further exercise thereof; and every right, power and remedy of the Secured
Parties shall continue in full force and effect until such right, power or
remedy is specifically waived in accordance with the terms of the Credit
Agreement.
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13. ANTI-MARSHALING PROVISIONS. The right is hereby given by each
Pledgor to the Administrative Agent, for the benefit of the Secured Parties, to
make releases (whether in whole or in part) of all or any part of the Collateral
agreeable to the Administrative Agent without notice to, or the consent,
approval or agreement of other parties and interests, including junior lienors,
which releases shall not impair in any manner the validity of or priority of the
Liens and security interests in the remaining Collateral conferred hereunder,
nor release any Pledgor from personal liability for the Secured Obligations.
Notwithstanding the existence of any other security interest in the Collateral
held by the Administrative Agent, for the benefit of the Secured Parties, the
Administrative Agent shall have the right to determine the order in which any or
all of the Collateral shall be subjected to the remedies provided in this Pledge
Agreement. Each Pledgor hereby waives any and all right to require the
marshaling of assets in connection with the exercise of any of the remedies
permitted by applicable law or provided herein or in any Related Agreement.
14. ENTIRE AGREEMENT. This Pledge Agreement and each Pledge
Joinder Agreement, together with the Credit Agreement and other Loan
Documents, constitutes and expresses the entire understanding between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior negotiations, agreements and understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein contained.
The express terms hereof and of the Pledge Joinder Agreements control and
supersede any course of performance or usage of the trade inconsistent with
any of the terms hereof and thereof. Neither this Pledge Agreement nor any
Pledge Joinder Agreement nor any portion or provision hereof or thereof may be
changed, altered, modified, supplemented, discharged, canceled, terminated, or
amended orally or in any manner other than as provided in the Credit
Agreement.
15. FURTHER ASSURANCES. Each Pledgor agrees at its own expense to
do such further acts and things, and to execute and deliver, and cause to be
executed and delivered as may be reasonably necessary or advisable to give
effect thereto, such additional conveyances, assignments, financing
statements, control agreements, documents, certificates, stock powers,
agreements and instruments, as the Administrative Agent may at any time
reasonably request in connection with the administration or enforcement of
this Pledge Agreement or any Pledge Joinder Agreement or related to the
Collateral or any part thereof or in order better to assure and confirm unto
the Administrative Agent its rights, powers and remedies for the benefit of
the Secured Parties hereunder or thereunder. Each Pledgor hereby consents and
agrees that the Pledged Subsidiaries and all other Persons, shall be entitled
to accept the provisions hereof and of the Pledge Joinder Agreements as
conclusive evidence of the right of the Administrative Agent, on behalf of the
Secured Parties, to exercise its rights, privileges, and remedies hereunder or
thereunder with respect to the Collateral, notwithstanding any other notice or
direction to the contrary heretofore or hereafter given by any Pledgor or any
other Person to any of such Pledged Subsidiaries or Registrars or other
Persons.
16. BINDING AGREEMENT; ASSIGNMENT. This Pledge Agreement and each
Pledge Joinder Agreement, and the terms, covenants and conditions hereof and
thereof, shall be binding upon and inure to the benefit of the parties hereto,
and to their respective successors and assigns, except that no Pledgor shall be
permitted to assign this Pledge Agreement, any Pledge Joinder Agreement or any
interest herein or therein or in the Collateral, or any part thereof or interest
therein, or otherwise pledge, encumber or grant any option with respect to the
Collateral, or any
11
part thereof, or any cash or property held by the Administrative Agent as
Collateral under this Pledge Agreement. Without limiting the generality of the
foregoing sentence of this Section 16, any Lender may assign to one or more
Persons, or grant to one or more Persons participations in or to, all or any
part of its rights and obligations under the Credit Agreement (to the extent
permitted by the Credit Agreement); and to the extent of any such assignment
or participation such other Person shall, to the fullest extent permitted by
law, thereupon become vested with all the benefits in respect thereof granted
to such Lender herein or otherwise, subject however, to the provisions of the
Credit Agreement, including Article IX thereof (concerning the Administrative
Agent) and Section 10.07 thereof (concerning assignments and participations).
All references herein to the Administrative Agent and to the Secured Parties
shall include any successor thereof or permitted assignee, and any other
obligees from time to time of the Secured Obligations.
17. RELATED SWAP CONTRACTS. All obligations of each Pledgor under
or in respect of Related Swap Contracts (which are not prohibited under the
terms of the Credit Agreement) to which any Lender or any Affiliate of any
Lender is a party, shall be deemed to be Secured Obligations secured hereby,
and each Lender or Affiliate of a Lender party to any such Related Swap
Contract shall be deemed to be a Secured Party hereunder with respect to such
Secured Obligations; provided, however, that such obligations shall cease to
be Secured Obligations at such time as such Person (or Affiliate of such
Person) shall cease to be a "Lender" under the Credit Agreement.
No Person who obtains the benefit of any Lien by virtue of the
provisions of this Section shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan
Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and only to
the extent expressly provided in the Loan Documents.
18. SEVERABILITY. The provisions of this Pledge Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Pledge Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.
19. COUNTERPARTS. This Pledge Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall be
deemed an original, and all of which together shall constitute one and the
same instrument, and it shall not be necessary in making proof of this Pledge
Agreement to produce or account for more than one such counterpart executed by
the Pledgor against whom enforcement is sought. Without limiting the foregoing
provisions of this Section 19, the provisions of Section 10.02(b) of the
Credit Agreement shall be applicable to this Pledge Agreement.
20. TERMINATION. Subject to the provisions of Section 8, this
Pledge Agreement and each Pledge Joinder Agreement, and all obligations of the
Pledgors hereunder (excluding those obligations and liabilities that expressly
survive such termination) shall terminate without delivery of any instrument
or performance of any act by any party on the Facility Termination Date. Upon
such termination of this Pledge Agreement, the Administrative Agent shall, at
the
12
sole expense of the Pledgors, promptly deliver to the Pledgors the
certificates evidencing its shares of Pledged Interests (and any other
property received as a dividend or distribution or otherwise in respect of
such Pledged Interests to the extent then held by the Administrative Agent as
additional Collateral hereunder), together with any cash then constituting the
Collateral not then sold or otherwise disposed of in accordance with the
provisions hereof, and take such further actions at the request of the
Pledgors as may be necessary to effect the same.
21. ADDITIONAL INTERESTS. If any Pledgor shall at any time acquire
or hold any additional Pledged Interests, including any Pledged Interests
issued by any Subsidiary not listed on Schedule I hereto which are required to
be subject to a Lien pursuant to a Pledge Agreement by the terms hereof or of
Article IIA or any other provision of the Credit Agreement (any such shares
being referred to herein as the "Additional Interests"), such Pledgor shall
deliver to the Administrative Agent for the benefit of the Secured Parties (i)
a Pledge Agreement Supplement in the form of Exhibit A hereto with respect to
such Additional Interests duly completed and executed by such Pledgor and
(iii) any other document required in connection with such Additional Interests
as described in Section 2(c). Each Pledgor shall comply with the requirements
of this Section 21 concurrently with the acquisition of any such Additional
Interests or, in the case of Additional Interests to which Section 6.14 of the
Credit Agreement applies, within the time period specified in Article IIA,
Section 6.14 or elsewhere in the Credit Agreement with respect to such
Additional Interests; provided, however, that the failure to comply with the
provisions of this Section 21 shall not impair the Lien on Additional
Interests conferred hereunder.
22. NOTICES. Any notice required or permitted hereunder shall be
given (a) with respect to the Borrower, at the address of the Borrower
indicated in Section 13.2 of the Credit Agreement, (b) with respect to each
Subsidiary which is a Pledgor hereunder, at the address then in effect for the
giving of notices to such Subsidiary under the Facility Guaranty to which it
is a party, and (c) with respect to the Administrative Agent or a Lender, at
the Administrative Agent's address indicated in Section 10.02 of the Credit
Agreement. All such addresses may be modified, and all such notices shall be
given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of
addresses thereunder.
23. JOINDER. Each Person who shall at any time execute and deliver
to the Administrative Agent a Pledge Joinder Agreement substantially in the
form attached as Exhibit B hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Pledgor and
shall have thereupon pursuant to Section 1 hereof granted a security interest
in and collaterally assigned and pledged to the Administrative Agent for the
benefit of the Secured Parties all Pledged Interests which it has at its
Applicable Date or thereafter acquires any interest or the power to transfer,
and all references herein and in the other Loan Documents to the Pledgors or
to the parties to this Pledge Agreement shall be deemed to include such Person
as a Pledgor hereunder. Each Pledge Joinder Agreement shall be accompanied by
the Supplemental Schedules referred to therein, appropriately completed with
information relating to the Pledgor executing such Pledge Joinder Agreement
and its property. Each of the applicable Schedules attached hereto shall be
deemed amended and supplemented without further action by such information
reflected on the Supplemental Schedules.
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24. RULES OF INTERPRETATION. The rules of interpretation contained
in Sections 1.02 through 1.05 of the Credit Agreement shall be applicable to
this Pledge Agreement and each Pledge Joinder Agreement and are hereby
incorporated by reference. All representations and warranties contained herein
shall survive the delivery of documents and any extension of credit referred
to herein or secured hereby.
25. GOVERNING LAW; WAIVERS.
(a) THIS PLEDGE AGREEMENT AND EACH PLEDGE JOINDER AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE (I) WITH RESPECT TO THOSE INSTANCES IN WHICH
THE APPLICABLE CHOICE OF LAWS RULES OF SUCH STATE, INCLUDING SECTION
9-301 OF THE UCC, REQUIRE THAT THE MANNER OF CREATION OF A SECURITY
INTEREST IN SPECIFIC COLLATERAL OR THE MANNER OR EFFECT OF PERFECTION
OR NONPERFECTION OR THE RULES GOVERNING PRIORITY OR SECURITY INTERESTS
ARE TO BE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION, THEN THE LAWS
OF SUCH OTHER JURISDICTION SHALL GOVERN SUCH MATTERS, AND (II) IN THOSE
INSTANCES IN WHICH THE LAWS OF THE JURISDICTION IN WHICH COLLATERAL IS
LOCATED GOVERN MATTERS PERTAINING TO THE METHODS AND EFFECT OF
REALIZING ON COLLATERAL, SUCH LAWS SHALL BE GIVEN EFFECT WITH RESPECT
TO SUCH MATTERS.
(b) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS PLEDGE AGREEMENT OR ANY PLEDGE JOINDER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW
YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS PLEDGE AGREEMENT OR A PLEDGE JOINDER AGREEMENT, EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE
VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PLEDGOR
PROVIDED IN SECTION
14
22 OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR ANY
PLEDGE JOINDER AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY PLACE WHERE ANY PLEDGOR OR ANY OF SUCH PLEDGOR'S PROPERTY OR ASSETS
MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS
OF ANY SUCH JURISDICTION, EACH PLEDGOR HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF
ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER, BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR
OTHERWISE, MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS PLEDGE AGREEMENT OR ANY
PLEDGE JOINDER AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) EACH PLEDGOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties have duly executed this Pledge
Agreement on the day and year first written above.
PLEDGORS:
ALLTRISTA CORPORATION, a Delaware corporation
By: /s/ Desiree DeStefano
--------------------------------------
Name: Desiree DeStefano
Title: Vice President
QUOIN CORPORATION, a Delaware corporation
By: /s/ Ian G. H. Asken
--------------------------------------
Name: Ian G. H. Asken
Title: Treasurer
ALLTRISTA NEWCO CORPORATION, an Indiana corporation
By: /s/ Desiree DeStefano
--------------------------------------
Name: Desiree DeStefano
Title: Vice President
CASPERS TIN PLATE COMPANY, an Illinois corporation
By: /s/ Desiree DeStefano
--------------------------------------
Name: Desiree DeStefano
Title: Vice President
Securities Pledge Agreement
Signature Page 1
AGENT:
BANK OF AMERICA, N. A., as Administrative
Agent for the Lenders
By: /s/ Igor Suica
-------------------------------------
Name: Igor Suica
Title: Vice President
Securities Pledge Agreement
Signature Page 2