EXHIBIT 4.18
FIRST AMENDMENT
TO PLEDGE AGREEMENT
DATED AS OF JANUARY 24, 2002
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "AMENDMENT") is dated
as of January 24, 2002 and entered into by and among ▇▇▇▇▇-ILLINOIS GROUP, INC.,
a Delaware corporation ("COMPANY"), ▇▇▇▇▇- ▇▇▇▇▇▇▇▇ PACKAGING INC., a Delaware
corporation ("PACKAGING"), and BANKERS TRUST COMPANY, as Collateral Agent for
and representative of the Lenders, the Interest Rate Exchangers, the Currency
Exchangers, the Existing Senior Note Trustees, the Other Permitted Credit
Exposure Holders, the New Senior Debt Representatives, the Refinancing Senior
Debt Representatives and the New Junior Debt Representatives (in such capacity
herein called the "COLLATERAL AGENT") and BANKERS TRUST COMPANY, as
administrative agent (the "LENDER AGENT") for the lenders party to the Credit
Agreement (as defined below) and is made with reference to that certain Pledge
Agreement dated as of April 23, 2001 (the "PLEDGE AGREEMENT"), by and among the
foregoing parties. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Pledge Agreement, and, if not
defined herein or in the Pledge Agreement, as defined in the Credit Agreement
(as defined below).
RECITALS
WHEREAS, the Lenders have entered into a Secured Credit Agreement
dated as of April 23, 2001 (the "SECURED CREDIT AGREEMENT"), as amended by that
certain First Amendment to Secured Credit Agreement and Consent dated as of
December 31, 2001 (the "FIRST AMENDMENT AND CONSENT") with certain subsidiaries
of Company and Packaging as Borrowers and with Company as guarantor pursuant to
Section 9 thereof and ▇▇▇▇▇-Illinois General, Inc., as Borrowers' Agent (the
Secured Credit Agreement, as so amended and as more particularly defined in the
Pledge Agreement, is referred to herein as the "CREDIT AGREEMENT"). In addition,
in connection therewith, Packaging entered into a Subsidiary Guaranty of all
Obligations as defined in and now or hereafter existing under or in respect of
the Credit Agreement.
WHEREAS, the Credit Agreement permits Indebtedness from time to time
issued constituting New Senior Debt to be secured by the Domestic Collateral (as
defined in the Intercreditor Agreement) under the Domestic Collateral Documents,
including the Pledge Agreement;
WHEREAS, concurrently herewith, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is issuing certain 8
7/8% Senior Secured Notes due 2009 in the aggregate principal amount of
$1,000,000,000 (together with any subsequent issuance of notes consituting the
same series of notes as the 8 7/8% Senior Secured Notes due 2009 pursuant to the
same indenture on substantially identical terms the Net Debt Securities Proceeds
of which are applied to repay the Term Loans pursuant to Section 2.4A(ii)(e) of
the Credit Agreement or as otherwise required thereby, in each case together
with any guarantees thereof and any notes and guarantees issued in exchange
therefor or replacement thereof containing substantially identical terms, the
"NEW 2002 SENIOR NOTES") which New 2002 Senior Notes constitute New Senior Debt
(subject, with respect to any subsequent issuance of
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notes (but not any exchange notes) described above, to Administrative Agent's
determination in its reasonable judgment that the terms and conditions of such
notes are substantially comparable to those prevailing in the market place for
comparable debt issuances) and desires to have such New 2002 Senior Notes
constitute Senior Secured Obligations under the Intercreditor Agreement and to
secure the obligations in respect of such New 2002 Senior Notes by certain of
the Domestic Collateral;
WHEREAS, in order to facilitate the issuance of the New 2002 Senior
Notes, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has obtained, pursuant to the First Amendment and Consent,
the consent of the Requisite Lenders and Requisite Obligees, as applicable, to
the Collateral Agent's and Lender Agent's amendment of the Pledge Agreement to
eliminate or defer the provision of certain of the Pledged Collateral as
security for the New 2002 Senior Notes, which Pledged Collateral would otherwise
secure the obligations in respect of such New 2002 Senior Notes upon their
issuance and the execution of a counterpart to the Intercreditor Agreement by
the New Senior Debt Representative and Borrowers' Agent and the application of
the Net Debt Securities Proceeds arising from the issuance of the New 2002
Senior Notes to repay the Term Loans pursuant to Section 2.4A(ii)(e) of the
Credit Agreement; and
WHEREAS, the parties desire to amend the Pledge Agreement as set forth
herein to implement the provisions of the First Amendment and Consent.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS TO PLEDGE AGREEMENT
1.1 RECITALS.
(a) Recital 6 of the Pledge Agreement is hereby amended by (i) adding the
following after the words "Company and/or Packaging" and "Company or Packaging"
in the first and second sentences of such recital: "or Domestic Borrowers and/or
the other Subsidiary Guarantors", and (ii) adding the phrase "acting in such
capacity for the benefit of the holders of New Senior Debt" after the words "New
Senior Debt" in the last sentence thereof.
(b) Recital 11 of the Pledge Agreement is hereby amended by adding the
following proviso to the end of such recital: "PROVIDED, THAT, notwithstanding
any such execution and delivery of a counterpart or acknowledgement to the
Intercreditor Agreement by any New Senior Debt Representative for the New 2002
Senior Notes acknowledged by Pledgors or Borrower's Agent, neither such New
Senior Debt Representative nor the holders of the New 2002 Senior Notes shall be
entitled to the benefits of this Agreement until April 1, 2002; and provided,
further, that, so long as the New Senior Debt Representative for the New 2002
Senior Notes has executed and delivered a counterpart or acknowledgment to the
Intercreditor Agreement acknowledged by Pledgors or Borrowers' Agent, then on
April 1, 2002, without any further action by the Pledgors or Borrowers' Agent,
the New Senior Debt Representative or any other party hereto or to the
Intercreditor Agreement or to the Credit Agreement, the New Senior Debt
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Representative and the holders of the New 2002 Senior Notes shall automatically
be entitled to the benefits of this Agreement."
1.2 SENIOR PLEDGE. Section 1.1A of the Pledge Agreement is hereby amended
by adding the following parenthetical after the words "Senior Secured Parties":
"(subject to Section 2.1 below with respect to the New 2002 Senior Notes)".
1.3 SENIOR SECURED OBLIGATIONS. Section 2.1 of the Pledge Agreement is
hereby amended by adding the following after the words "as applicable":
"PROVIDED, FURTHER, THAT, notwithstanding any such execution and delivery of a
counterpart or acknowledgement to the Intercreditor Agreement by any holder of,
or New Senior Debt Representative with respect to, the New 2002 Senior Notes
acknowledged by Pledgors or Borrowers' Agent, the pledge made and security
interest granted in SECTION 1 and the other provisions of this Agreement shall
not be effective as to any obligations in respect of such New 2002 Senior Notes
until April 1, 2002; PROVIDED, FURTHER, THAT, so long as the New Senior Debt
Representative for the New 2002 Senior Notes has executed and delivered a
counterpart or acknowledgment to the Intercreditor Agreement acknowledged by
Pledgors or Borrowers' Agent, then on April 1, 2002, without any further action
by the Pledgors or Borrowers' Agent, the New Senior Debt Representative or any
other party hereto or to the Intercreditor Agreement or to the Credit Agreement,
the New Senior Debt Representative and the holders of the New 2002 Senior Notes
shall automatically be entitled to the benefits of this Agreement; and PROVIDED,
YET, FURTHER, that in no event (whether before or after April 1, 2002 and
notwithstanding any execution and delivery of a counterpart or acknowledgement
to the Intercreditor Agreement) shall the pledge made and security interest
granted in SECTION 1 by Company in the Company Pledged Collateral issued by or
owing from O-1 General FTS (including, for the avoidance of doubt, any
documents, instruments, or certificates evidencing the same and any proceeds of
such Company Pledged Collateral) (the "EXCLUDED PLEDGED COLLATERAL") secure
obligations in respect of the New 2002 Senior Notes and such Excluded Pledged
Collateral shall not be held by Collateral Agent for the benefit of any holder
of, or New Senior Debt Representative with respect to, the New 2002 Senior
Notes."
1.4 REMEDIES UPON DEFAULT. The second sentence of Section 11.1(a) of the
Pledge Agreement is hereby amended by adding the following to the end thereof:
"(the foregoing limitation, however, shall not apply to Collateral Agent acting
in such capacity)".
1.5 APPLICATION OF PROCEEDS. Clause "SECOND" of Section 12 of the Pledge
Agreement is hereby amended by striking the words "PROVIDED that" and adding the
following in their place: "PROVIDED, THAT, no Proceeds arising from the sale,
collection from or other realization upon all or any part of the Excluded
Pledged Collateral shall be applied toward payment of obligations in respect of
the New 2002 Senior Notes (and neither the holders of nor any New Senior Debt
Representative for such New 2002 Senior Notes shall be entitled to any increased
portion of any Proceeds of any other Collateral due to such exclusion);
PROVIDED, FURTHER, THAT,".
1.6 CONTINUING SECURITY INTEREST. The second sentence of Section 20 of the
Pledge Agreement is hereby deleted in its entirety and replaced with the
following:
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"Without limiting the generality of the foregoing clause (iii), (A) but
subject to the provisions of SUBSECTION 10.2 of the Credit Agreement, any Lender
may assign or otherwise transfer any Loans held by it to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to Lenders as Secured Parties herein or otherwise, (B) any
Interest Rate Exchanger or Currency Exchanger may assign or otherwise transfer
any Interest Rate Agreement or Currency Agreement to which it is a party to any
other Lender or Affiliate of a Lender in accordance with the terms of such
Interest Rate Agreement or Currency Agreement, and such other permitted assignee
shall thereupon become vested with all the benefits in respect thereof granted
to Interest Rate Exchangers and/or Currency Exchanger as Secured Parties herein
or otherwise, (C) any Other Permitted Credit Exposure Holder may assign or
otherwise transfer any Other Permitted Credit Exposure to any other Lender or
Affiliate of Lender in accordance with the applicable Other Permitted Credit
Exposure Documents and such other permitted assignee shall thereupon become
vested with all the benefits in respect thereof granted to such Other Permitted
Credit Exposure Holder as a Secured Party herein or otherwise and (D) any holder
of any Existing Senior Notes, New Senior Debt, Refinancing Senior Debt or New
Junior Debt may assign or otherwise transfer any Existing Senior Notes, New
Senior Debt, Refinaincing Senior Debt or New Junior Debt to any other Person in
accordance with the applicable Existing Senior Note Indentures, New Senior Debt
Documents, Refinancing Senior Debt Documents or New Junior Debt Documents and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such holder (or its representative) as a Secured Party herein
or otherwise."
1.7 GOVERNING LAW; TERMS. The reference to "Section 5-1402" in Section 21
of the Pledge Agreement is hereby amended to read "Section 5-1401".
SECTION 2.
CONDITIONS TO EFFECTIVENESS
2.1 This Amendment shall become effective only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "FIRST AMENDMENT EFFECTIVE DATE"):
(a) On or before the First Amendment Effective Date, Company and
Packaging shall deliver to Administrative Agent sufficient originally executed
copies, where appropriate, for each Lender and its counsel the following, each,
unless otherwise noted, dated the First Amendment Effective Date:
(i) Resolutions of its Board of Directors approving and authorizing
the execution, delivery, and performance of this Amendment, certified as of the
First Amendment Effective Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or amendment;
(ii) Signature and incumbency certificates of its officers
executing this Amendment; and
(iii) Executed copies of this Amendment.
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(b) On or before the First Amendment Effective Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
SECTION 3.
REPRESENTATIONS AND WARRANTIES
In order to induce Collateral Agent and Lender's Agent to enter into this
Amendment and to amend the Pledge Agreement in the manner provided herein,
Company and Packaging each represents and warrants to Collateral Agent, Lender
Agent and each Secured Party that the following statements are true, correct and
complete:
3.1 CORPORATE POWER AND AUTHORITY. Each of Company and Packaging has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Pledge Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
3.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company and Packaging.
3.3 NO CONFLICT. The execution and delivery by Company and Packaging of
this Amendment and the performance by Company and Packaging of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a material breach of or constitute (with due notice or
lapse of time or both) a material default under any Contractual Obligation of
Company or any of its Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Company or any of
its Subsidiaries (other than Liens in favor of the Collateral Agent), or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of Company or any of its Subsidiaries, other
than those approvals and consents which have been obtained.
3.4 GOVERNMENTAL CONSENTS. The execution and delivery by Company and
Packaging of this Amendment and the performance by Company and Packaging of the
Amended Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body, except for filings, consents or
notices that have been or will be made or obtained during the period in which
they are required to be obtained or made.
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3.5 BINDING OBLIGATION. This Amendment and the Amended Agreement have been
duly executed and delivered by Company and Packaging and are the legally valid
and binding obligations of Company and Packaging, enforceable against Company
and Packaging in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
3.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM PLEDGE AGREEMENT.
The representations and warranties contained in Section 4 of the Pledge
Agreement are and will be true, correct and complete in all material respects on
and as of the First Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
3.7 ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 4.
MISCELLANEOUS
4.1 REFERENCE TO AND EFFECT ON THE PLEDGE AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(a) On and after the First Amendment Effective Date, each reference in
the Pledge Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Pledge Agreement, and each reference in
the other Loan Documents to the "Pledge Agreement", "thereunder", "thereof" or
words of like import referring to the Pledge Agreement shall mean and be a
reference to the Amended Agreement.
(b) Except as specifically amended by this Amendment, the Pledge
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of Collateral Agent or
Lender Agent or any other under the Pledge Agreement or any of the other Loan
Documents.
4.2 HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
4.3 APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT
AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
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CODE REQUIRES THAT THE PERFECTION OF THE SECURITY INTEREST UNDER THE PLEDGE
AGREEMENT, OR REMEDIES THEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
4.4 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. Delivery of an executed counterpart of a signature page of
this amendment by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: ▇▇▇▇▇-ILLINOIS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
--------------------------------
Name:
------------------------------
Title:
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PACKAGING: ▇▇▇▇▇-▇▇▇▇▇▇▇▇ PACKAGING, INC.
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
--------------------------------
Name:
------------------------------
Title:
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COLLATERAL AGENT BANKERS TRUST COMPANY,
AND LENDER AGENT: AS COLLATERAL AGENT AND LENDER AGENT
BY: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------------
NAME: ▇▇▇▇ ▇▇ ▇▇▇▇▇
TITLE: Assistant Vice President
