TABLE OF CONTENTS
ARTICLE I SECURITY INTERESTS | 2 | ||
| 1.1 | Grant of Security Interests | 2 |
| 1.2 | Power of Attorney | 3 |
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS | 3 | ||
| 2.1 | Chief Executive Office/Inventory and Equipment Locations | 3 |
| 2.2 | State of Incorporation | 3 |
| 2.3 | Trade Names; Change of Name | 4 |
ARTICLE III PROVISIONS CONCERNING ALL COLLATERAL | 5 | ||
| 3.1 | Protection of Administrative Agent's Security | 5 |
| 3.2 | Warehouse Receipts Non-Negotiable; Third-Party Acknowledgments | 5 |
| 3.3 | Further Actions | 5 |
| 3.4 | Financing Statements | 5 |
ARTICLE IV REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT | 5 | ||
| 4.1 | Remedies; Obtaining the Collateral Upon Default | 5 |
| 4.2 | Remedies; Disposition of the Collateral | 7 |
| 4.3 | Waiver of Claims | 7 |
| 4.4 | Application of Proceeds | 8 |
| 4.5 | Remedies Cumulative | 10 |
| 4.6 | Discontinuance of Proceedings | 11 |
ARTICLE V INDEMNITY | 11 | ||
| 5.1 | Indemnity | 11 |
| 5.2 | Indemnity Obligations Secured by Collateral; Survival | 12 |
ARTICLE VI DEFINITIONS | 12 | ||
ARTICLE VII MISCELLANEOUS | 16 | ||
| 7.1 | Notices | 16 |
| 7.2 | Waiver; Amendment | 16 |
| 7.3 | Obligations Absolute | 17 |
| 7.4 | Successors and Assigns | 17 |
| 7.5 | Headings Descriptive | 17 |
| 7.6 | Severability | 17 |
| 7.7 | GOVERNING LAW | 17 |
| 7.8 | Each Guarantor's Duties | 17 |
| 7.9 | Termination; Release | 18 |
| 7.10 | Counterparts | 18 |
| 7.11 | The Administrative Agent | 19 |
| 7.12 | US Bank | 19 |
| 7.13 | Additional Guarantors | 19 |
| 7.14 | Amended and Restated | 19 |
ARTICLE VIII SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS | 20 | ||
| 8.1 | Additional Representations and Warranties | 20 |
| 8.2 | Maintenance of Records | 20 |
| 8.3 | Modification of Terms; etc | 20 |
| 8.4 | Collection | 21 |
| 8.5 | Instruments | 21 |
| 8.6 | Further Actions | 21 |
ARTICLE IX SPECIAL PROVISIONS CONCERNING MARKS | 21 | ||
| 9.1 | Additional Representations and Warranties | 21 |
| 9.2 | Licenses and Assignments | 22 |
| 9.3 | Infringements | 22 |
| 9.4 | Preservation of Marks | 22 |
| 9.5 | Maintenance of Registration | 22 |
| 9.6 | Future Registered Marks | 22 |
| 9.7 | Remedies | 23 |
ARTICLE X SPECIAL PROVISIONS CONCERNING PATENTS AND COPYRIGHTS AND TRADE SECRETS | 23 | ||
| 10.1 | Additional Representations and Warranties | 23 |
| 10.2 | Licenses and Assignments | 24 |
| 10.3 | Infringements | 24 |
| 10.4 | Maintenance of Patents | 24 |
| 10.5 | Prosecution of Patent Application | 24 |
| 10.6 | Other Patents and Copyrights | 24 |
| 10.7 | Remedies | 24 |
ANNEX A | Schedule of Chief Executive Offices |
ANNEX B | Schedule of Inventory and Equipment Locations |
ANNEX C | Schedule of Trade, Fictitious and Other Names |
ANNEX D | Schedule of Marks |
ANNEX E | Schedule of License Agreements and Assignments |
ANNEX F | Schedule of Patents and Copyrights |
ANNEX G | Schedule of Copyrights and Applications |
ANNEX H | Assignment of Security Interest in U.S. Trademarks and Patents |
ANNEX I | Assignment of Security Interest in U.S. Copyrights |
xxx
AMENDED AND RESTATED
SUBSIDIARY GUARANTOR SECURITY AGREEMENT
between
VISION-EASE LENS, INC.,
VISION-EASE LENS AZUSA, INC.,
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly named Bankers Trust Company),
as Administrative Agent
and
U.S. BANK NATIONAL ASSOCIATION
Dated as of September 27, 2002
AMENDED AND RESTATED SUBSIDIARY GUARANTOR SECURITY AGREEMENT
THIS AMENDED AND RESTATED SUBSIDIARY GUARANTOR SECURITY AGREEMENT (this "Agreement"), dated as of September 27, 2002, is among the undersigned (each a "Guarantor" and, together with any other entity that becomes party hereto pursuant to Section 7.13 hereof, collectively, the "Guarantors"), DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly named Bankers Trust Company), as administrative agent (the "Administrative Agent") and U.S. BANK NATIONAL ASSOCIATION ("US Bank") for the benefit of (i) the Lenders and the Agent under the Credit Agreement hereinafter referred to (such Lenders and the Agent are hereinafter called the "Bank Creditors"), (ii) if one or more Lenders (or any Affiliate thereof) enter into one or more (A) interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements), (B) foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values and/or (C) other types of hedging agreements from time to time (collectively, the "Interest Rate Protection or Other Hedging Agreements") with, or guaranteed by, Borrower, any such Lender or Lenders or any Affiliate of such Lender or Lenders (even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason) so long as any such Lender or Affiliate participates in the extension of such Interest Rate Protection or Other Hedging Agreements and their subsequent assigns, if any (collectively, the "Other Creditors") and (iii) US Bank as lender under the US Bank Letter of Credit Facility (as defined below) (the "LC Creditor" and, together with the Other Creditors and the Bank Creditors, hereinafter called the "Secured Creditors"). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as hereinafter defined) shall be used herein as so defined.
W I T N E S S E T H :
WHEREAS, BMC Industries, Inc. (the "Borrower"), the financial institutions (the "Lenders") from time to time party thereto and Bankers Trust Company, as Administrative Agent (together with any successor agent, the "Agent"), have entered into an Amended and Restated Credit Agreement, dated as of June 25, 1998, providing for the making of Loans and the issuance of, and participation in, Letters of Credit as contemplated therein (as used herein, the term "Credit Agreement" means the Credit Agreement described above in this paragraph, as in effect on the date hereof and as amended by that certain Second Amendment and Restatement Agreement dated as of October 12, 2001 and as amended and restated by that certain Third Amended and Restated Credit Agreement dated as of the date hereof, as the same may be amended, modified, extended, renewed, replaced, restated or supplemented from time to time, and including any agreement extending the maturity of or restructuring of all or any portion of the Indebtedness under such agreement or any successor agreements);
WHEREAS, Borrower may at any time and from time to time enter into, or guarantee, one or more Interest Rate Protection or Other Hedging Agreements with one or more Other Creditors;
WHEREAS, Borrower, Administrative Agent and US Bank previously entered into a Security Agreement dated as of October 12, 2001 (the "Original Security Agreement");
WHEREAS, it is a condition precedent to each of the above-described extensions of credit that Borrower shall have executed and delivered this Agreement which shall amend and restate the Original Security Agreement in its entirety; and
WHEREAS, pursuant to the Amended and Restated Subsidiary Guarantee Agreement, dated October 12, 2001, each Guarantor has jointly and severally guaranteed to the Secured Creditors the payment when due of certain obligations of Borrower and each Guarantor under or with respect to the Loan Documents, the Interest Rate Protection or Other Hedging Agreements and the US Bank Letter of Credit Facility (provided that at no time shall there be more than $2,000,000 under the US Bank Letter of Credit Facility secured by the Security Documents);
WHEREAS, each Guarantor desires to enter into this Agreement in order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the extensions of credit to be made to Borrower and other benefits accruing to each Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby makes the following representations and warranties to the Administrative Agent for the benefit of the Secured Creditors and hereby covenants and agrees with the Administrative Agent for the benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
(b) The security interests of the Administrative Agent under this Agreement extend to all Collateral of the kind which is the subject of this Agreement which any Guarantor may acquire at any time during the continuation of this Agreement.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Guarantor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
ARTICLE III
PROVISIONS CONCERNING ALL COLLATERAL
ARTICLE IV
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
(a) personally, or by agents or attorneys, immediately take possession of the Collateral or any part thereof, from such Guarantor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that purpose may enter upon such Guarantor's premises where any of the Collateral is located and remove the same and use in connection with such removal any and all services, supplies, aids and other facilities of such Guarantor; and
(b) instruct the obligor or obligors on any agreement, instrument or other obligation (including, without limitation, the Accounts and the Contracts) constituting the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Administrative Agent and may exercise any and all remedies of such Guarantor in respect of such Collateral; and
(c) sell, assign or otherwise liquidate, or direct such Guarantor to sell, assign or otherwise liquidate, any or all of the Collateral or any part thereof, and take possession of the proceeds of any such sale or liquidation; and
(d) take possession of the Collateral or any part thereof, by directing such Guarantor in writing to deliver the same to the Administrative Agent at any place or places reasonably designated by the Administrative Agent, in which event such Guarantor shall at its own expense:
(i) forthwith cause the same to be moved to the place or places so designated by the Administrative Agent and there delivered to the Administrative Agent, and
(ii) store and keep any Collateral so delivered to the Administrative Agent at such place or places pending further action by the Administrative Agent as provided in Section 6.2 hereof, and
(iii) while the Collateral shall be so stored and kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain them in good condition; and
(e) license or sublicense (to the extent not in violation of the license), whether on an exclusive or nonexclusive basis, any Marks (together with associated goodwill), Patents or Copyrights included in the Collateral for such term and on such conditions and in such manner as the Administrative Agent shall in its sole judgment determine (taking into account such provisions as may be necessary to protect and preserve such Marks, Patents or Copyrights); and
it being understood that each Guarantor's obligation so to deliver the Collateral is of the essence of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Administrative Agent shall be entitled to seek a decree requiring specific performance by such Guarantor of said obligation.
(a) all damages occasioned by such taking of possession except any damages which are the direct result of the Administrative Agent's gross negligence or willful misconduct;
(b) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Administrative Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof, and such Guarantor, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of such Guarantor therein and thereto, and shall be a perpetual bar both at law and in equity against such Guarantor and against any and all Persons claiming or attempting to claim the Collateral so sold, optioned or realized upon, or any part thereof, from, through and under such Guarantor.
(ii) second, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the outstanding Primary Obligations shall be paid to the Secured Creditors as provided in Section 4.4(e) hereof, with each Secured Creditor receiving an amount equal to such outstanding Primary Obligations or, if the proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application pursuant to the preceding clauses (i) and (ii), an amount equal to the outstanding Secondary Obligations shall be paid to the Secured Creditors as provided in Section 4.4(e), with each Secured Creditor receiving an amount equal to its outstanding Secondary Obligations or, if the proceeds are insufficient to pay in full all such Secondary Obligations, its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application pursuant to the preceding clauses (i) through (iii), inclusive, and following the termination of this Agreement pursuant to Section 7.9(a) hereof, to such Guarantor or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement (i) "Pro Rata Share" shall mean, when calculating a Secured Creditor's portion of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor's Primary Obligations or Secondary Obligations, as the case may be, and the denominator of which is the then outstanding amount of all Primary Obligations or Secondary Obligations, as the case may be, (ii) "Primary Obligations" shall mean (A) in the case of the Credit Agreement Obligations, all principal of, and interest on, all Loans, all Unpaid Drawings theretofore made (together with all interest accrued thereon), and the aggregate Stated Amounts of all Letters of Credit issued (or deemed issued) under the Credit Agreement, and all Fees and (B) in the case of the Other Obligations, all amounts due under the Interest Rate Protection or Other Hedging Agreements (other than indemnities, fees (including, without limitation, attorneys' fees) and similar obligations and liabilities) and (iii) "Secondary Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall be applied (for purposes of making determinations under this Section 4.4 only) (i) first, to their Primary Obligations and (ii) second, to their Secondary Obligations. If any payment to any Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such Secured Creditor, such excess amount shall instead be distributed in respect of the unpaid Primary Obligations or Secondary Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose Primary Obligations or Secondary Obligations, as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of such Secured Creditor and the denominator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if the Bank Creditors are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued (or deemed issued) under the Credit Agreement (which shall only occur after all outstanding Loans and Unpaid Drawings with respect to such Letters of Credit have been paid in full), such amounts shall be paid to the Agent under the Credit Agreement and held by it, for the equal and ratable benefit of the Bank Creditors, as cash security for the repayment of Obligations owing to the Bank Creditors as such. If any amounts are held as cash security pursuant to the immediately preceding sentence, then upon the termination of all outstanding Letters of Credit, and after the application of all such cash security to the repayment of all Obligations owing to the Bank Creditors after giving effect to the termination of all such Letters of Credit, if there remains any excess cash, such excess cash shall be returned by the Agent to the Administrative Agent for distribution in accordance with Section 4.4(a) hereof.
(e) Except as set forth in Section 4.4(d) hereof, all payments required to be made hereunder shall be made (i) if to the Bank Creditors, to the Agent under the Credit Agreement for the account of the Bank Creditors, and (ii) if to the Other Creditors, to the trustee, paying agent or other similar representative (each a "Representative") for the Other Creditors or, in the absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with this Section 4.4, the Administrative Agent shall be entitled to rely upon (i) the Agent under the Credit Agreement and (ii) the Representative for the Other Creditors or, in the absence of such a Representative, upon the Other Creditors for a determination (which the Agent, each Representative for any Secured Creditors and the Secured Creditors agree (or shall agree) to provide upon request of the Administrative Agent) of the outstanding Primary Obligations and Secondary Obligations owed to the Bank Creditors or the Other Creditors, as the case may be. Unless it has actual knowledge (including by way of written notice from a Bank Creditor or an Other Creditor) to the contrary, the Agent and each Representative, in furnishing information pursuant to the preceding sentence, and the Administrative Agent, in acting hereunder, shall be entitled to assume that no Secondary Obligations are outstanding. Unless it has actual knowledge (including by way of written notice from an Other Creditor) to the contrary, the Administrative Agent, in acting hereunder, shall be entitled to assume that no Interest Rate Protection or Other Hedging Agreements are in existence.
(g) It is understood and agreed that each Guarantor shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral hereunder and the aggregate amount of the sums referred to in clauses (i) through (iii), inclusive, of Section 4.4(a) hereof.
(b) Without limiting the application of Section 5.1(a) hereof, each Guarantor agrees to pay, or reimburse the Administrative Agent for any and all reasonable fees, costs and expenses of whatever kind or nature incurred in connection with the creation, preservation or protection of the Administrative Agent's Liens on, and security interest in, the Collateral, including, without limitation, all reasonable fees and taxes in connection with the recording or filing of instruments and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to the Collateral and all other reasonable fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral and the Administrative Agent's interest therein, whether through judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 5.1(a) or (b) hereof, each Guarantor agrees to pay, indemnify and hold each Indemnitee harmless from and against any loss, costs, damages and expenses which such Indemnitee may suffer, expend or incur in consequence of or growing out of any misrepresentation by such Guarantor in this Agreement, any Interest Rate Protection or Other Hedging Agreement, any other Loan Document or in any writing contemplated by or made or delivered pursuant to or in connection with this Agreement, any Interest Rate Protection or Other Hedging Agreement or any other Loan Document.
(d) If and to the extent that the obligations of any Guarantor under this Section 5.1 are unenforceable for any reason, each Guarantor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
The following terms shall have the meanings herein specified. Such definitions shall be equally applicable to the singular and plural forms of the terms defined.
"Account" shall have the meaning provided in the Uniform Commercial Code.
"Administrative Agent" shall have the meaning provided in the first paragraph of this Agreement.
"Agent" shall have the meaning provided in the first WHEREAS clause of this Agreement.
"Agreement" shall mean this Amended and Restated Security Agreement as the same may be modified, supplemented, extended, renewed, replaced, restated or amended from time to time in accordance with its terms.
"Guarantor" shall have the meaning provided in the first paragraph of this Agreement.
"Bank Creditor" shall have the meaning provided in the first paragraph of this Agreement.
"Borrower" shall have the meaning provided in the first WHEREAS clause of this Agreement.
"Chattel Paper" shall have the meaning provided in the Uniform Commercial Code.
"Class" shall have the meaning provided in Section 7.2 of this Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this Agreement.
"Contract Rights" shall mean all rights of a Guarantor (including, without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between a Guarantor and one or more additional parties (including, without limitation, (i) each partnership agreement to which a Guarantor is a party and (ii) any Interest Rate Protection or Other Hedging Agreements), but excluding licenses, agreements and leases, which are immaterial to the operations of an Guarantor, to the extent that the terms thereof prohibit the assignment of, or granting of a security interest in, such licenses, agreements or leases.
"Copyrights" shall mean any United States copyright which a Guarantor now owns or hereafter acquires, including any registrations of any Copyrights in the United States Copyright Office, as well as any application for a United States copyright registration now or hereafter made with the United States Copyright Office by a Guarantor.
"Credit Agreement" shall have the meaning provided in the first WHEREAS clause of this Agreement.
"Credit Agreement Obligations" shall have the meaning provided in the definition of "Obligations" in this Article VI.
"Default" shall mean any event which, with notice or lapse of time, or both, would constitute an Event of Default.
"Deposit Accounts" shall have the meaning provided in the Uniform Commercial Code.
"Documents" shall have the meaning provided in the Uniform Commercial Code.
"Equipment" shall mean any "equipment," as such term is defined in the Uniform Commercial Code, now or hereafter owned by a Guarantor.
"Event of Default" shall mean any Event of Default under, and as defined in, the Credit Agreement and shall in any event, without limitation, include any payment default on any of the Obligations after the expiration of any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform Commercial Code.
"Goods" shall have the meaning provided in the Uniform Commercial Code.
"Indemnitee" shall have the meaning provided in Section 5.1 of this Agreement.
"Instrument" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
"Interest Rate Protection or Other Hedging Agreements" shall have the meaning provided in the first paragraph of this Agreement.
"Inventory" shall mean all "inventory" as such term is defined in the Uniform Commercial Code, now or hereafter owned by a Guarantor.
"Investment Property" shall have the meaning ascribed thereto in Article 9 of the UCC.
"LC Creditor" shall have the meaning provided in the first WHEREAS clause of this Agreement.
"Lenders" shall have the meaning provided in the first WHEREAS clause of this Agreement.
"Lenders" shall have the meaning provided in the first WHEREAS clause of this Agreement.
"Letter-of-Credit Rights" shall have the meaning provided in the Uniform Commercial Code.
"Marks" shall mean all right, title and interest in and to any trademarks and service marks and trade names now held or hereafter acquired by a Guarantor, which are registered in the United States Patent and Trademark Office or in any similar office or agency of the United States or any state thereof or any political subdivision thereof and any application for such trademarks and service marks, as well as any unregistered marks used by a Guarantor in the United States and trade dress including logos, designs, trade names, company names, business names, fictitious business names and other business identifiers in connection with which any of these registered or unregistered marks are used in the United States, but excluding all intent-to-use trademark applications for which an application to allege use under 15 U.S.C. §1051(c) and/or for which a statement of use under 15 U.S.C. §1051(d) has not been filed, which applications are identified in Annex D (III).
"Obligations" shall mean (i) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including, without limitation, all "Obligations" as such term is defined in the Credit Agreement and all obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities of Borrower and each Guarantor now existing or hereafter incurred under, arising out of or in connection with the Credit Agreement or any other Loan Document to which Borrower or any Guarantor is a Party and the due performance and compliance by Borrower and each Guarantor with all of the terms, conditions and agreements contained in each such Loan Document (all such obligations and liabilities being herein collectively called the "Credit Agreement Obligations"); (ii) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities of Borrower now existing or hereafter incurred under, arising out of or in connection with (x) any Interest Rate Protection or Other Hedging Agreement, whether such Interest Rate Protection or Other Hedging Agreement is now in existence or hereafter arising and the due performance and compliance by Borrower with all of the terms, conditions and agreements contained therein and (y) the US Bank Letter of Credit Facility up to a maximum amount of $2,000,000 (provided that at no time shall there be more than $2,000,000 under the US Bank Letter of Credit Facility secured by the Security Documents) (all such obligations and liabilities described in this clause (ii) being herein collectively called the "Other Obligations"); (iii) any and all sums advanced by the Administrative Agent in order to preserve the Collateral or preserve its security interest in the Collateral; (iv) in the event of any proceeding for the collection or enforcement of any indebtedness, obligations, or liabilities of Borrower or any Guarantor referred to in clauses (i) and (ii), after an Event of Default shall have occurred and be continuing, the reasonable expenses of taking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Administrative Agent of its rights hereunder, together with reasonable attorneys' fees and court costs; and (v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement under Section 6.1 of this Agreement. It is acknowledged and agreed that the "Obligations" shall include extensions of credit of the types described above, whether outstanding on the date of this Agreement or extended from time to time after the date of this Agreement.
"Other Creditors" shall have the meaning provided in the first paragraph of this Agreement.
"Other Obligations" shall have the meaning provided in the definition of "Obligations" in this Article VI.
"Patents" shall mean any United States patent now or hereafter owned by a Guarantor, as well as any application for a United States patent now or hereafter owned by such Guarantor, but excluding patents and applications for patents that such Guarantor is prohibited by written contract from assigning or granting a security interest in.
"Permitted Filings" shall mean any filing or similar item that was a matter of public record on October 12, 2001, with respect to Collateral secured by the Original Security Agreement, or on the date hereof, with respect to any other Collateral.
"Primary Obligations" shall have the meaning provided in Section 4.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section 4.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial Code.
"Representative" shall have the meaning provided in Section 5.4(e) of this Agreement.
"Required Secured Creditors" shall mean (i) the Required Lenders (or, to the extent required by Article XI of the Credit Agreement, all of the Lenders) under the Credit Agreement so long as any Credit Agreement Obligations remain outstanding and (ii) in any situation not covered by preceding clause (i), the holders of a majority of the outstanding principal amount of the Other Obligations.
"Requisite Creditors" shall have the meaning provided in Section 7.2 of this Agreement.
"Secondary Obligations" shall have the meaning provided in Section 4.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the first paragraph of this Agreement.
"Termination Date" shall have the meaning provided in Section 7.9 of this Agreement.
"Trade Secrets" shall mean any know-how, technology, product formulations, procedures and product and manufacturing specifications or standards now or hereafter utilized by a Guarantor in such Guarantor's business.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial Code as now or hereafter in effect from time to time in the State of New York or any other applicable jurisdiction.
"US Bank Letter of Credit Facility" means that certain revolving letter of credit facility in effect on the date hereof pursuant to that certain Continuing Reimbursement Agreement for Commercial Letters of Credit, dated as of July 14, 2000 by and among the LC Creditor and the Borrower providing for commercial letters of credit; provided, however, that at no time shall there be more than a maximum amount of $2,000,000 under the US Bank Letter of Credit Facility secured by the Security Documents.
(b) In the event that any part of the Collateral is sold or otherwise disposed of in connection with a sale or other disposition permitted by Section 8.7 of the Credit Agreement or is otherwise released at the direction of the Required Lenders (or all the Lenders if required by Section 11.1 of the Credit Agreement) and the proceeds of such sale or sales or from such release are applied in accordance with the provisions of Section 4.4 of the Credit Agreement, to the extent required to be so applied, such Collateral will be sold free and clear of the Liens created by this Agreement and the Administrative Agent, at the request and expense of the Guarantors, will duly assign, transfer and deliver to the relevant Guarantor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or released and has not theretofore been released pursuant to this Agreement. The Administrative Agent shall also be entitled to and is hereby authorized and directed to duly assign, transfer and deliver such of the Collateral as provided in Section 11.20(b) of the Credit Agreement.
(c) At any time that an Guarantor desires that the Administrative Agent take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing Section 7.9(a) or (b), as the case may be, it shall deliver to the Administrative Agent a certificate signed by an Authorized Officer stating that the release of the respective Collateral is permitted pursuant to Section 7.9(a) or (b), as the case may be.
(d) The Administrative Agent shall have no liability whatsoever to any Secured Creditor as a result of any release of Collateral by it in accordance with this Section 7.9.
(b) For avoidance of doubt, US Bank expressly acknowledges that all rights and remedies of the Administrative Agent hereunder shall be exercised by the Administrative Agent in accordance with the applicable provisions of the Credit Agreement, and no consent of, or notice to, US Bank shall be required with respect thereto and US Bank shall not undertake any separate action with respect to the Collateral. The sole right of US Bank hereunder shall be to receive its proportionate share of any proceeds received by the Administrative Agent hereunder in accordance with the terms hereof.
ARTICLE VIII
SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS
ARTICLE IX
SPECIAL PROVISIONS CONCERNING MARKS
ARTICLE X
SPECIAL PROVISIONS CONCERNING PATENTS AND COPYRIGHTS AND TRADE SECRETS
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date first above written.
VISION-EASE LENS, INC.,
as Guarantor
By: /s/ Bradley D. Carlson
Name: Bradley D. Carlson
Title: Treasurer
VISION-EASE LENS AZUSA, INC.,
as Guarantor
By: /s/ Bradley D. Carlson
Name: Bradley D. Carlson
Title: Treasurer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
(formerly named Bankers Trust Company),
as Administrative Agent
By: /s/ Mary Jo Jolly
Name: Mary Jo Jolly
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Nicholas G. Myers
Name: Nicholas G. Myers
Title: Assistant Vice President