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EXHIBIT 4.10
AMENDED AND RESTATED
SECURITY AGREEMENT
among
DOMESTIC SUBSIDIARIES
OF
COLTEC INDUSTRIES INC
and
BANKERS TRUST COMPANY,
as Collateral Agent
Dated as of March 24, 1992
and
AMENDED AND RESTATED
as of
December 18, 1996
and
FURTHER AMENDED AND RESTATED
as of
March 16, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
SECURITY INTERESTS....................................................................................... 3
1.1.Grant of Security Interests.......................................................................... 3
1.2.Power of Attorney.................................................................................... 4
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS....................................................... 4
2.1.Necessary Filings................................................................................... 4
2.2.No Liens............................................................................................ 4
2.3.Other Financing Statements.......................................................................... 5
2.4.Chief Executive Office; Records..................................................................... 5
2.5.Location of Inventory and Equipment................................................................. 6
2.6.Recourse............................................................................................ 6
2.7.Trade Names; Change of Name......................................................................... 6
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS................................. 7
3.1.Additional Representations and Warranties........................................................... 7
3.2.Maintenance of Records.............................................................................. 7
3.3.Direction to Account Debtors; Contracting Parties; etc.............................................. 8
3.4.Modification of Terms; etc.......................................................................... 8
3.5.Collection.......................................................................................... 8
3.6.Instruments......................................................................................... 8
3.7.Government Contracts................................................................................ 9
3.8.Assignment of Claims Act Notices.................................................................... 9
3.9.Further Actions..................................................................................... 10
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS..................................................................... 10
4.1.Additional Representations and Warranties........................................................... 10
4.2.Licenses and Assignments............................................................................ 10
4.3.Infringements....................................................................................... 10
4.4.Preservation of Marks............................................................................... 11
4.5.Maintenance of Registration......................................................................... 11
4.6.Future Registered Marks............................................................................. 11
4.7.Remedies............................................................................................ 11
(i)
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
Page
PATENTS AND COPYRIGHTS .......................................................................................... 12
5.1.Additional Representations and Warranties........................................................... 12
5.2.Licenses and Assignments............................................................................ 12
5.3.Infringements....................................................................................... 12
5.4.Maintenance of Patents.............................................................................. 12
5.5.Prosecution of Patent Application................................................................... 12
5.6.Other Patents and Copyrights........................................................................ 13
5.7.Remedies............................................................................................ 13
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL.................................................................... 13
6.1.Protection of Collateral Agent's Security........................................................... 13
6.2.Warehouse Receipts Non-negotiable................................................................... 14
6.3.Further Actions..................................................................................... 14
6.4.Financing Statements................................................................................ 14
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT............................................................ 14
7.1.Remedies; Obtaining the Collateral Upon Default..................................................... 14
7.2.Remedies; Disposition of the Collateral............................................................. 15
7.3.Waiver of Claims.................................................................................... 16
7.4.Application of Proceeds............................................................................. 17
7.5.Remedies Cumulative................................................................................. 19
7.6.Discontinuance of Proceedings....................................................................... 20
7.7.Purchasers Of Collateral............................................................................ 20
ARTICLE VIII
INDEMNITY............................................................................................... 20
8.1.Indemnity........................................................................................... 20
8.2.Indemnity Obligations Secured by Collateral; Survival............................................... 21
ARTICLE IX
DEFINITIONS............................................................................................. 22
ARTICLE X
THE COLLATERAL AGENT.................................................................................... 28
10.1.Appointment........................................................................................ 28
10.2.Nature of Duties................................................................................... 28
10.3.Lack of Reliance on the Collateral Agent........................................................... 29
10.4.Certain Rights of the Collateral Agent............................................................. 29
(ii)
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Page
10.5.Reliance........................................................................................... 30
10.6.Indemnification.................................................................................... 30
10.7.The Collateral Agent in its Individual Capacity.................................................... 31
10.8.Holders............................................................................................ 31
10.9.Resignation by the Collateral Agent................................................................ 31
10.10.Fees and Expenses of Collateral Agent............................................................. 32
ARTICLE XI
MISCELLANEOUS........................................................................................... 32
11.1.Notices............................................................................................ 32
11.2.Waiver; Amendment.................................................................................. 33
11.3.Obligations Absolute; Subrogation.................................................................. 34
11.4.Successors and Assigns............................................................................. 34
11.5.Headings Descriptive............................................................................... 35
11.6.Severability....................................................................................... 35
11.7.GOVERNING LAW...................................................................................... 35
11.8.Assignors' Duties.................................................................................. 35
11.9.Termination; Release............................................................................... 35
ANNEX A Schedule of Permitted Filings
ANNEX B Schedule of Chief Executive Offices
ANNEX C Schedule of Record Locations
ANNEX D Schedule of Inventory and Equipment Locations
ANNEX E Schedule of Trade, Fictitious and Other Names
ANNEX F Schedule of Marks
ANNEX G Schedule of Patents and Applications
ANNEX H Schedule of Copyrights and Applications
(iii)
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AMENDED AND RESTATED SUBSIDIARIES SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), dated as of March 24,
1992, amended and restated as of December 18, 1996 and further amended and
restated as of March 16, 1998, among each DOMESTIC SUBSIDIARY of COLTEC
INDUSTRIES INC whose name appears on the signature pages hereto (each an
"Assignor" and collectively, the "Assignors") and BANKERS TRUST COMPANY, as
Collateral Agent (the "Collateral Agent") for the benefit of the Secured
Creditors (as defined below) (except as otherwise defined herein, terms used
herein and defined in the Credit Agreement shall be used herein as therein
defined).
W I T N E S S E T H :
WHEREAS, Coltec Industries Inc (the "Company"), Coltec
Aerospace Canada Ltd., the financial institutions (the "Banks") from time to
time party thereto, Bank of America National Trust and Savings Association, as
Documentation Agent (in such capacity, the "Documentation Agent"), The Chase
Manhattan Bank, as Syndication Agent (in such capacity, the "Syndication
Agent"), Bank of Montreal, as Canadian Paying Agent (in such capacity, the
"Canadian Paying Agent"), and Bankers Trust Company, as Administrative Agent
(together with any successor administrative agent, the "Administrative Agent"
and together with the Pledgee, the Documentation Agent, the Syndication Agent,
the Canadian Paying Agent and the Banks and their respective successors and
assigns, and together with any other financial institutions from time to time
party to the Credit Agreement hereinafter referred to, the "Bank Creditors"),
have entered into a Credit Agreement, dated as of March 24, 1992, and amended
and restated as of January 11, 1994, and further amended and restated as of
December 18, 1996 and as further amended, providing for the making of Loans to
the Borrowers and the issuance of, and participation in, Letters of Credit, all
as contemplated therein (as used herein, the term "Credit Agreement" means the
Credit Agreement described above in this paragraph, as the same has been, and
may from time to time in the future be, amended, modified, extended, renewed,
replaced, restated, supplemented or refinanced from time to time, and including
any agreement extending the maturity of, refinancing or restructuring
(including, but not limited to, the inclusion of additional guarantors or
additional borrowers thereunder that are Subsidiaries of the Company and whose
obligations are guaranteed by the Company thereunder or any increase in the
amount borrowed) all or any portion of, the Indebtedness under such agreement or
any successor agreements, whether or not with the same agent, trustee,
representative, financial institutions or holders; provided, that with respect
to any agreement providing for the refinancing or replacement of Indebtedness
under the Credit Agreement, such agreement shall only be treated as, or as part
of, the Credit Agreement hereunder if (i) either (A) all obligations under the
Credit Agreement being refinanced or replaced shall be paid in full at the time
of such refinancing or replacement, and all commitments and letters of credit
issued pursuant to the refinanced or replaced Credit Agreement shall have
terminated in accordance with their terms or (B) the Required Banks shall
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have consented in writing to the refinancing or replacement Indebtedness being
treated, along with their Indebtedness, as Indebtedness pursuant to the Credit
Agreement, (ii) the refinancing Indebtedness shall be permitted to be incurred
under the Credit Agreement being refinanced (if such Credit Agreement is to
remain outstanding) and (iii) a notice to the effect that the refinancing or
replacement, Indebtedness shall be treated as issued under the Credit Agreement
shall be delivered by the Company to the Collateral Agent);
WHEREAS, the Company and its Subsidiaries may at any time and
from time to time enter into, or guaranty, one or more of the following
agreements: (i) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements),
(ii) foreign exchange contracts, currency swap agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values and/or (iii) other types of hedging agreements from time to time
(collectively, the "Interest Rate Protection or Other Hedging Agreements") with
one or more Bank Creditors or affiliates of Bank Creditors (each such Bank
Creditor or affiliate, even if the respective Bank Creditor subsequently ceases
to be a Bank under the Credit Agreement for any reason, together with such Bank
Creditor's or affiliate's successors and assigns, collectively, the "Interest
Rate Protection Creditors");
WHEREAS, the Company may issue New Senior Notes and New Senior
Exchange Notes as provided in the Credit Agreement that may be (to the extent
permitted pursuant to the Credit Agreement) (x) guaranteed by various of the
Assignors pursuant to a subsidiary guarantee (the "Senior Note Subsidiaries
Guaranty") and (y) equally and ratably secured hereunder with the Credit
Agreement Obligations as hereinafter provided (with any holders of New Senior
Notes and New Senior Exchange Notes from time to time being herein collectively
called "Senior Noteholders" and with all documentation evidencing any New Senior
Notes or New Senior Exchange Notes, including without limitation the indenture
and any Senior Note Subsidiaries Guaranty to be entered into in connection with
the New Senior Notes, being herein called "Senior Note Documents");
WHEREAS, each Assignor is a direct or indirect Subsidiary of
the Company and, as such, will receive benefits from the above-described
extensions of credit;
WHEREAS, each Assignor has entered into a guaranty dated as of
March 24, 1992 and amended and restated as of December 18, 1996 (the
"Subsidiaries Guaranty") pursuant to which each Assignor has unconditionally
guaranteed any and all obligations and liabilities of the Company under, or with
respect to, the Credit Documents and the Interest Rate Protection or Other
Hedging Agreements;
WHEREAS, certain of the Assignors have heretofore entered into
a Security Agreement, dated as of March 24, 1992 (as amended, modified or
supplemented prior to the date hereof, the "Original Subsidiaries Security
Agreement");
WHEREAS, it is a condition to the extensions of credit under
the Credit Agreement and to the obligations of the initial purchasers of the New
Senior Notes under the purchase agreement to be entered into in connection with
the issuance by the Company of the
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New Senior Notes that each Assignor shall have executed and delivered to the
Collateral Agent this Agreement; and
WHEREAS, each Assignor desires to execute this Agreement to
(i) satisfy the condition described in the preceding paragraph and (ii) amend
and restate the Original Subsidiaries Security Agreement;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Assignor under the Credit Agreement and under the
purchase agreement to be entered into in connection with the issuance by the
Company of the New Senior Notes, the receipt and sufficiency of which are hereby
acknowledged, each Assignor hereby makes the following representations and
warranties to the Collateral Agent for the ratable benefit of the Secured
Creditors and hereby covenants and agrees with the Collateral Agent for the
ratable benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the
prompt and complete payment and performance when due of all of the Obligations,
each Assignor does hereby sell, assign and transfer unto the Collateral Agent,
and does hereby grant to the Collateral Agent for the ratable benefit of the
Bank Creditors, the Interest Rate Protection Creditors and the Senior
Noteholders, in each case to the extent from time to time holding Obligations of
such Assignor secured hereunder (collectively, and together with the Collateral
Agent, the "Secured Creditors"), a continuing security interest of first
priority (subject to Liens evidenced by Permitted Filings and Liens permitted
under Section 9.01 of the Credit Agreement) in, all of the right, title and
interest of such Assignor in, to and under all of the following, whether now
existing or hereafter from time to time acquired: (i) each and every Receivable,
(ii) all Contracts, together with all Contract Rights arising thereunder, (iii)
all Inventory, (iv) the Cash Collateral Account established for each Assignor
and all moneys, securities and instruments deposited or required to be deposited
in such Cash Collateral Account, (v) all Equipment, (vi) all Marks, together
with the registrations and right to all renewals thereof, and the goodwill of
the business of such Assignor symbolized by the Marks, (vii) all Patents and
Copyrights, and all reissues, renewals or extensions thereof, (viii) all
computer programs of such Assignor and all intellectual property rights therein
and all other proprietary information of such Assignor, including, but not
limited to, trade secrets, (ix) all other Goods, General Intangibles, Chattel
Paper, Documents and Instruments (other than the Pledged Securities and any
other capital stock or promissory notes not required to be pledged pursuant to
the Subsidiaries Pledge Agreement) and (x) all Proceeds and products of any and
all of the foregoing (all of the above, collectively, the "Collateral");
provided, however that to the extent that any Contract may be terminated (in
accordance with the terms thereof after giving effect to any applicable laws) in
the event of granting of a security interest therein, or in the event the
granting of a security interest in any Contract shall violate applicable law,
then the security interest granted hereby shall be limited to the extent
necessary so that such Contract may not be so terminated or no such violation of
law shall exist, as the case may be.
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(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral of the kind which is the subject of this
Agreement which any Assignor may acquire at any time during the continuation of
this Agreement.
(c) If (i) a Bankruptcy Default or Notified Acceleration Event
has occurred and is continuing or (ii) any other Event of Default or
Acceleration Event has occurred and is continuing, but in the case of this
clause (ii) only if, and to the extent that, the Collateral Agent (acting at the
direction of the Required Secured Creditors) has given notice to any of the
Assignors to take the actions specified below in this sentence, then in either
such case all cash Proceeds of, and cash payments received in respect of,
Collateral shall be paid by such Assignor (or the respective payor) directly to
the Cash Collateral Account or as otherwise directed by the Collateral Agent. At
any time while the circumstances described in the immediately preceding sentence
do not exist, all cash payments received in respect of the Collateral (including
without limitation all payments received in respect of Receivables and
Contracts, or in payment for sales of Inventory, but excluding cash Proceeds of
sales of other Collateral unless the respective sale and release of Collateral
is permitted pursuant to this Agreement and the Credit Agreement) shall be paid
to the respective Assignor.
1.2. Power of Attorney. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise), in the Collateral Agent's
discretion, to take any action and to execute any instrument which the
Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes of this Agreement, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement and the occurrence of the Restatement Effective Date, as
follows:
2.1. Necessary Filings. All filings, registrations and
recordings necessary or appropriate to create, preserve, protect and perfect the
security interests granted by such Assignor to the Collateral Agent hereby in
respect of the Collateral have been or shall have been accomplished and the
security interest granted to the Collateral Agent pursuant to this Agreement in
and to the Collateral constitutes or shall constitute a perfected security
interest therein prior to the rights of all other Persons therein and subject to
no other Liens (except that the Collateral may be subject to the security
interests evidenced by the financing statements disclosed on Annex A hereto, but
only to the respective date, if any, set forth on Annex A (the "Permitted
Filings") and to any other Liens permitted under Section 9.01 of the Credit
Agreement) and is or shall be entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law as
enacted in any relevant jurisdiction to perfected security interests.
2.2. No Liens. Such Assignor is, and as to Collateral acquired
by it from time to time after the date hereof such Assignor will be, the owner
of all Collateral free from any Lien,
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security interest, encumbrance or other right, title or interest of any Person
(other than Liens created hereby, permitted under Section 9.01 of the Credit
Agreement or evidenced by the Permitted Filings), and such Assignor shall defend
the Collateral against all claims and demands of all Persons at any time
claiming the same or any interest therein adverse to the Collateral Agent.
2.3. Other Financing Statements. As of the Restatement
Effective Date, there is no financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) on file or of
record in any relevant jurisdiction covering or purporting to cover any interest
of any kind in the Collateral except as disclosed in Annex A hereto or to the
extent filed after the Effective Date so long as the respective such filing did
not (and the Lien evidenced thereby did not) violate the applicable provisions
of the Original Credit Agreement, and so long as the Total Commitment has not
been terminated or any Letter of Credit or Note remains outstanding or any of
the Obligations remain unpaid or any Interest Rate Protection or Other Hedging
Agreement remains in effect or any obligations are owed with respect thereto,
such Assignor will not execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) or statements relating to the Collateral, except
financing statements filed or to be filed in respect of and covering the
security interests granted hereby by such Assignor or as otherwise permitted
pursuant to Section 9.01 of the Credit Agreement.
2.4. Chief Executive Office; Records. The chief executive
office of such Assignor is located at the address set forth for each such
Assignor on Annex B hereto. Such Assignor will not move its chief executive
office except to such new location as such Assignor may establish in accordance
with the last sentence of this Section 2.4. The originals of all documents
evidencing all Receivables and Contract Rights of such Assignor and the only
original books of account and records of such Assignor relating thereto are, and
will continue to be, kept at such chief executive office, at such other
locations shown on Annex C hereto or at such new locations as such Assignor may
establish in accordance with the last sentence of this Section 2.4, provided
that, so long as (x) true and correct copies of all documents evidencing such
Receivables and Contract Rights and copies of such books and records are kept at
the chief executive office of such Assignor or at such other locations shown on
Annex C hereto and (y) the failure to maintain any original copies of the
foregoing at such locations could not have an adverse effect upon the validity,
perfection or priority of any security interest granted hereunder, such Assignor
shall be permitted to keep original copies of the foregoing at other locations
to be determined in a manner consistent with its past practices. All Receivables
and Contract Rights of such Assignor are, and will continue to be, maintained
at, and controlled and directed (including, without limitation, for general
accounting purposes) from, the office locations described above. Such Assignor
shall not establish new locations for such offices until (i) it shall have given
to the Collateral Agent not less than 30 days' prior written notice of its
intention so to do, clearly describing such new location and providing such
other information in connection therewith as the Collateral Agent may reasonably
request, (ii) with respect to such new location, it shall have taken all action
to maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect and (iii) at the request of the Collateral Agent, it shall have furnished
an opinion of counsel reasonably acceptable to the Collateral Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and all other actions (including, without
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limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby.
2.5. Location of Inventory and Equipment. All Inventory and
Equipment held on the date hereof by such Assignor is located at one of the
locations shown on Annex D hereto for such Assignor. Such Assignor agrees that
all Inventory and Equipment now held or subsequently acquired by it shall be
kept at (or shall be in transport to) any one of the locations shown on Annex D
hereto for such Assignor, or such new location as such Assignor may establish in
accordance with the last sentence of this Section 2.5. Such Assignor may
establish a new location for Inventory and Equipment only if (i) it shall give
to the Collateral Agent written notice of such new location as promptly as
practicable and in no event later than 60 days after the establishment thereof,
clearly describing such new location and providing such other information in
connection therewith as the Collateral Agent may reasonably request, (ii) with
respect to such new location, as promptly as practicable and in no event later
than 75 days after the establishment thereof, it shall have taken all action to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect and (iii) at the request of the Collateral Agent, it shall have furnished
an opinion of counsel reasonably acceptable to the Collateral Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and all other actions (including, without limitation, the payment of all filing
fees and taxes, if any, payable in connection with such filings) have been
taken, in order to perfect (and maintain the perfection and priority of) the
security interest granted hereby.
2.6. Recourse. This Agreement is made with full recourse to
such Assignor and pursuant to and upon all the warranties, representations,
covenants, and agreements on the part of such Assignor contained herein, in the
other Credit Documents, in the Interest Rate Protection or Other Hedging
Agreements, the Senior Note Documents and otherwise in writing in connection
herewith or therewith.
2.7. Trade Names; Change of Name. Such Assignor does not have
or operate in any jurisdiction under, or in the preceding 12 months has not had
or has not operated in any jurisdiction under, any trade names, fictitious names
or other names except its legal name and such other trade, fictitious or other
names as are listed on Annex E hereto for such Assignor. Such Assignor shall not
change its legal name or assume or operate in any jurisdiction under any trade,
fictitious or other name except those names listed on Annex E hereto for such
Assignor and new names (including, without limitation, any names of divisions or
operations) established in accordance with the last sentence of this Section
2.7. Such Assignor shall not assume or operate in any jurisdiction under any new
trade, fictitious or other name until (i) it shall have given to the Collateral
Agent not less than 30 days' prior written notice of its intention so to do,
clearly describing such new name and the jurisdictions in which such new name
shall be used and providing such other information in connection therewith as
the Collateral Agent may reasonably request, (ii) with respect to such new name,
it shall have taken all action to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect and (iii) at the request of the
Collateral Agent, it shall have furnished an opinion of counsel reasonably
acceptable to the Collateral Agent to the effect that all
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financing or continuation statements and amendments or supplements thereto have
been filed in the appropriate filing office or offices, and all other actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection with such filings) have been taken, in order to
perfect (and maintain the perfection and priority of) the security interest
granted hereby.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. Additional Representations and Warranties. As of the time
when each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that (x) such Receivable, and all records, papers and
documents relating thereto (if any) are genuine and in all respects what they
purport to be, and that all papers and documents (if any) relating thereto (i)
will represent the obligation of the account debtor evidencing indebtedness
unpaid and owed by the respective account debtor arising out of the performance
of labor or services or the sale or lease and delivery of the merchandise listed
therein, or both, (ii) will be the only original writings evidencing and
embodying such obligation of the account debtor named therein (other than copies
created for general accounting purposes), and (iii) will be in compliance and
will conform in all material respects with all applicable federal, state and
local laws and applicable laws of any relevant foreign jurisdiction and (y)
there is no fact or circumstance known to such Assignor which would suggest that
any such Receivable (i) will not represent the genuine, legal, valid and binding
obligation of such account debtor or (ii) will not evidence true and valid
obligations, enforceable in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
3.2. Maintenance of Records. Each Assignor will keep and
maintain at its own cost and expense satisfactory and complete records of its
Receivables and Contracts, including, but not limited to, the originals of all
documentation (including each Contract) with respect thereto, records of all
payments received, all credits granted thereon, all merchandise returned and all
other dealings therewith, and each Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection, at such Assignor's
own cost and expense, at any and all reasonable times upon demand. Upon the
occurrence and during the continuance of any of the conditions specified in the
first sentence of Section 1.1(c) of this Agreement, and upon the request of the
Collateral Agent, each Assignor shall, at its own cost and expense, deliver all
tangible evidence of its Receivables and Contract Rights (including, without
limitation, all documents evidencing the Receivables and all Contracts) and such
books and records to the Collateral Agent or to its representatives (copies of
which evidence and books and records may be retained by such Assignor). If the
Collateral Agent so directs, each Assignor shall legend, in form and manner
reasonably satisfactory to the Collateral Agent, the Receivables and the
Contracts, as well as books, records and documents of such Assignor evidencing
or pertaining to such Receivables and Contracts with an appropriate reference to
the fact that such Receivables and Contracts have been assigned to the
Collateral Agent and that the Collateral Agent has a security interest therein.
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3.3. Direction to Account Debtors; Contracting Parties; etc.
Upon the occurrence and during the continuance of the conditions described in
the first sentence of Section 1.1(c) of this Agreement, and if the Collateral
Agent so directs any Assignor, such Assignor agrees (x) to cause all payments on
account of the Receivables and Contracts to be made directly to the Cash
Collateral Account established for such Assignor, (y) that the Collateral Agent
may, at its option, directly notify the obligors with respect to any Receivables
and/or under any Contracts to make payments with respect thereto as provided in
the preceding clauses (x) and (z) that the Collateral Agent may enforce
collection of any such Receivables and Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same
extent that such Assignor might have done. Without notice to or assent by any
Assignor, the Collateral Agent may apply any or all amounts then in, or
thereafter deposited in, the Cash Collateral Account in the manner provided in
Section 7.4 of this Agreement. The reasonable costs and expenses (including
attorneys' fees) of collection, whether incurred by such Assignor or the
Collateral Agent, shall be borne by such Assignor.
3.4. Modification of Terms; etc. No Assignor shall rescind or
cancel any indebtedness evidenced by any Receivable or under any Contract, or
modify any term thereof or make any adjustment with respect thereto, or extend
or renew the same, or compromise or settle any material dispute, claim, suit or
legal proceeding relating thereto, or sell any Receivable or Contract, or
interest therein, without the prior written consent of the Collateral Agent,
except as permitted by Section 3.5 and except, so long as none of the conditions
described in the first sentence of Section 1.1(c) shall occur and be continuing,
such modifications, adjustments and sales effected by each Assignor in the
ordinary course of business consistent with past practice. Each Assignor will
duly fulfill all obligations on its part to be fulfilled under or in connection
with the Receivables and Contracts and will do nothing to impair the rights of
the Collateral Agent in the Receivables or Contracts.
3.5. Collection. Each Assignor shall endeavor to cause to be
collected from the account debtor named in each of its Receivables or obligor
under any Contract, as and when due (including, without limitation, amounts
which are delinquent, such amounts to be collected in accordance with generally
accepted lawful collection procedures) any and all amounts owing under or on
account of such Receivable or Contract, and apply forthwith upon receipt thereof
all such amounts as are so collected to the outstanding balance of such
Receivable or under such Contract, except that, at any time when payments in
respect of Receivables and Contracts may be made to any Assignor in accordance
with the second sentence of Section 1.1(c) of this Agreement, each Assignor may
allow in the ordinary course of business as adjustments to amounts owing under
its Receivables and Contracts (i) an extension or renewal of the time or times
of payment, or settlement for less than the total unpaid balance, which each
Assignor finds appropriate in accordance with sound business judgment and (ii) a
refund or credit due as a result of returned or damaged merchandise or
improperly performed services. The reasonable costs and expenses (including,
without limitation, attorneys' fees) of collection, whether incurred by such
Assignor or the Collateral Agent, shall be borne by such Assignor.
3.6. Instruments. If any Assignor owns or acquires any
Instrument constituting Collateral, such Assignor will within 10 days after such
acquisition, notify the Collateral Agent thereof, and upon request by the
Collateral Agent will promptly deliver such Instrument to the
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Collateral Agent appropriately endorsed to the order of the Collateral Agent as
further security hereunder.
3.7. Government Contracts. (a) Such Assignor hereby covenants
and agrees that promptly after any request by the Collateral Agent, such
Assignor will provide to the Collateral Agent (i) notice setting forth in
reasonable detail all Government Contracts with respect to which such Assignor
reasonably expects to receive payments or other consideration with a value in
excess of $500,000 to which such Assignor is a party at such time, and (ii) with
respect to each Government Contract referred to in clause (i) above, (a) the
true and correct GC Notice Recipient and (b) the anticipated annual gross
revenue under such Government Contract.
(b) Each Assignor hereby covenants and agrees that, at the
request of the Collateral Agent, as promptly as practicable and in any event
within 60 days following its entering into any Government Contract (other than a
Restricted Government Contract) with respect to which such Assignor reasonably
expects to receive payments or other consideration with a value in excess of
$500,000 after the date of such request, such Assignor shall notify the
Collateral Agent thereof, which notice shall set forth (i) each GC Notice
Recipient with respect to such Government Contract and (ii) the anticipated
gross revenue under such Government Contract.
(c) Each Assignor agrees that promptly upon obtaining
knowledge that any of the information provided to the Collateral Agent pursuant
to Section 3.7(a) or (b) with respect to such Assignor has changed, it shall
give written notice of such change to the Collateral Agent.
(d) Each Assignor hereby covenants and agrees that it will not
enter into any Restricted Government Contract unless such Assignor (i)
determines in good faith that it must agree to a prohibition on the assignment
of Receivables arising under such Government Contract in order to obtain such
Government Contract and (ii) gives the Collateral Agent at least 10 Business
Days' prior written notice of its intention to enter into such Restricted
Government Contract.
3.8. Assignment of Claims Act Notices. (a) Upon the occurrence
and during the continuance of any of the conditions described in the first
sentence of Section 1.1(c) of this Agreement, and if the Collateral Agent so
directs any Assignor, such Assignor shall prepare and deliver to the Collateral
Agent, with respect to each Government Contract to which such Assignor is a
party on the date of such request, (i) a written notice of the assignment
contained herein, each of which notices shall be in form and substance
satisfactory to the Collateral Agent (each such notice, an "Assignment of Claims
Act Notice") and (ii) an executed, attested and sealed (but undated) instrument
of assignment, each of which instruments shall be in form and substance
satisfactory to the Collateral Agent (each such instrument, an "Instrument of
Assignment"). At any time after the occurrence and during the continuance of any
of the conditions described in the first sentence of Section 1.1(c), each
Assignor shall, upon five Business Days' notice from the Collateral Agent, file
on behalf of the Collateral Agent an Assignment of Claims Act Notice (by
certified mail, return receipt requested, or in such other manner acceptable to
the Collateral Agent), together with three copies thereof and a true copy of the
corresponding Instrument of Assignment, with each GC Notice Recipient with
respect to each Government Contract of such Assignor as shall be designated from
time to time by the Collateral Agent. Each
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Assignor hereby further agrees that the Collateral Agent may at any time after
the occurrence and during the continuance of any of the conditions described in
the first sentence of 1.1(c) directly file the notices and instruments of
assignment described in this Section 3.8.
(b) Each Assignor acknowledges and agrees that each Instrument
of Assignment is supplemental to, and not in substitution for, the terms and
provisions of this Agreement.
3.9. Further Actions. Each Assignor will, at its own expense,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral
Agent, or the GC Notice Recipients with respect to any Government Contract, from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS
4.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful exclusive owner of the
Marks listed under its name in Annex F hereto and that said listed Marks include
all the United States registered in the United States Patent and Trademark
Office that such Assignor now owns in connection with its business. Each
Assignor represents and warrants that it owns or is licensed to use all Marks
that it uses. Each Assignor further warrants that it is aware of no third party
claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any mark. Each Assignor represents and
warrants that it is the owner of record of all U.S. Trademark registrations
listed under its name in Annex F hereto and that said registrations are valid,
subsisting, have not been cancelled and that such Assignor is not aware of any
third-party claim that any of said registrations is invalid or unenforceable.
Each Assignor hereby grants to the Collateral Agent an absolute power of
attorney to sign, upon the occurrence and during the continuance of (i) a
Bankruptcy Default or Notified Acceleration Event or (ii) any other Event of
Default or Acceleration Event, but in the case of this clause (ii) only to the
extent the Required Secured Creditors have so directed, any document which may
be required by the U.S. Patent and Trademark Office in order to effect an
absolute assignment of all right, title and interest in each Mark, and record
the same.
4.2. Licenses and Assignments. Except as otherwise expressly
permitted in the Credit Agreement, each Assignor hereby agrees not to divest
itself of any right under any Mark absent prior written approval of the
Collateral Agent (which approval shall not be unreasonably withheld).
4.3. Infringements. Except as otherwise expressly permitted in
the Credit Agreement, each Assignor agrees, promptly upon learning thereof, to
notify the Collateral Agent in writing of the name and address of, and to
furnish such pertinent information that may be available with respect to, any
party who, in any material respect, may be infringing or otherwise violating any
of the respective Assignor's rights in and to any significant Mark, or with
respect to
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any party claiming that such Assignor's use of any significant Mark violates in
any material respect any property right of that party. Each Assignor further
agrees, unless otherwise agreed by the Collateral Agent, diligently to prosecute
any Person infringing, in any material respect, any significant Mark.
4.4. Preservation of Marks. Except as otherwise expressly
permitted in the Credit Agreement, each Assignor agrees to use its significant
Marks in interstate or foreign commerce during the time in which this Agreement
is in effect, sufficiently to preserve such Marks as trademarks or service marks
registered under the laws of the United States.
4.5. Maintenance of Registration. Each Assignor shall, at its
own expense, diligently process all documents required by the Trademark Act of
1946, 15 U.S.C. Sections 1051 et seq. to maintain trademark registration,
including but not limited to affidavits of use and applications for renewals of
registration in the United States Patent and Trademark Office for all of its
significant Marks pursuant to 15 U.S.C. Sections 1058(a), 1059 and 1065,
and shall pay all fees and disbursements in connection therewith and shall not
abandon any such filing of affidavit of use or any such application of renewal
prior to the exhaustion of all administrative and judicial remedies without
prior written consent of the Collateral Agent. Each Assignor agrees to notify
the Collateral Agent not later than 6 months prior to the dates on which the
affidavits of use or the applications for renewal registration are due with
respect to any significant Mark that the affidavits of use or the renewal is
being processed.
4.6. Future Registered Marks. If any Mark registration issues
hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate such Assignor shall deliver a copy of such
certificate, and a grant of security in such mark to the Collateral Agent,
confirming the grant thereof hereunder, the form of such confirmatory grant to
be substantially the same as the form hereof.
4.7. Remedies. If there shall occur and be continuing (i) a
Bankruptcy Default or Notified Acceleration Event or (ii) any other Event of
Default or Acceleration Event, but in the case of this clause (ii) only to the
extent the Required Secured Creditors have so directed, the Collateral Agent
may, by written notice to the applicable Assignors, take any or all of the
following actions: (i) declare the entire right, title and interest of the
respective Assignor in and to each of the Marks, together with all trademark
rights and rights of protection to the same, vested, in which event such rights,
title and interest shall immediately vest, in the Collateral Agent for the
benefit of the Secured Creditors, in which case the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 4.1 to
execute, cause to be acknowledged and notarized and record said absolute
assignment with the applicable agency; (ii) take and use or sell the Marks and
the goodwill of the respective Assignor's business symbolized by the Marks and
the right to carry on the business and use the assets of such Assignor in
connection with which the Marks have been used; and (iii) direct the respective
Assignor to refrain, in which event such Assignor shall refrain, from using the
Marks in any manner whatsoever, directly or indirectly, and, if requested by the
Collateral Agent, change such Assignor's corporate name to eliminate therefrom
any use of any Mark and execute such other and further documents that the
Collateral Agent may request to further confirm this and to transfer ownership
of the Marks and
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registrations and any pending trademark application in the United States Patent
and Trademark Office to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS
5.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful exclusive owner of all
rights in the Patents listed under its name in Annex H hereto and in the
Copyrights listed under its name in Annex G hereto, that said Patents include
all the United States patents and applications for United States patents that
such Assignor now owns and that said Copyrights constitute all the United States
copyrights registered with the United States Copyright Office and applications
for United States copyrights that such Assignor now owns. Each Assignor
represents and warrants that it owns or is licensed to practice under all
Patents and Copyrights that it now uses or practices under. Each Assignor
further warrants that it is aware of no third-party claim that any aspect of
such Assignor's present or contemplated business operations infringes or will
infringe any patent or any copyright. Each Assignor hereby grants to the
Collateral Agent an absolute power of attorney to sign upon the occurrence and
during the continuance of (i) a Bankruptcy Default or Notified Acceleration
Event or (ii) any other Event of Default or Acceleration Event, but in the case
of this clause (ii) only to the extent the Required Secured Creditors have so
directed, any document which may be required by the United States Patent and
Trademark Office or the United States Copyright Office in order to effect an
absolute assignment of all right, title and interest in each Patent and
Copyright, and record the same.
5.2. Licenses and Assignments. Except as otherwise expressly
permitted in the Credit Agreement, each Assignor hereby agrees not to divest
itself of any right under any Patent or Copyright absent prior written approval
of the Collateral Agent (which approval shall not be unreasonably withheld).
5.3. Infringements. Each Assignor agrees, promptly upon
learning thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement or other
material violation of such Assignor's rights in any significant Patent or
Copyright, or with respect to any claim that practice of any significant Patent
or Copyright violates any property right of that party. Each Assignor further
agrees, absent direction of the Collateral Agent to the contrary, diligently to
prosecute any Person infringing, in any material respect any significant Patent
or Copyright.
5.4. Maintenance of Patents. Except as otherwise expressly
permitted in the Credit Agreement, at its own expense, each Assignor shall make
timely payment of all post-issuance fees required pursuant to 35 U.S.C. Section
41 to maintain in force rights under each Patent.
5.5. Prosecution of Patent Application. Except as otherwise
expressly permitted in the Credit Agreement, at its own expense, each Assignor
shall diligently prosecute all applications for United States patents listed
under its name in Annex G hereto and shall not
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abandon any such application prior to exhaustion of all administrative and
judicial remedies, absent written consent of the Collateral Agent.
5.6. Other Patents and Copyrights. Within 30 days of
acquisition of a United States Patent or Copyright, or of filing of an
application for a United States Patent or Copyright, the respective Assignor
shall deliver to the Collateral Agent a copy of said Patent or Copyright or such
application, as the case may be, with a grant of security as to such Patent or
Copyright, as the case may be, confirming the grant thereof hereunder, the form
of such confirmatory grant to be substantially the same as the form hereof.
5.7. Remedies. If there shall occur and be continuing (i) a
Bankruptcy Default or Notified Acceleration Event or (ii) any other Event of
Default or Acceleration Event, but in the case of this clause (ii) only to the
extent the Required Secured Creditors have so directed, the Collateral Agent may
by written notice to the applicable Assignors, take any or all of the following
actions: (i) declare the entire right, title, and interest of the respective
Assignor in each of the Patents and Copyrights vested, in which event such
right, title, and interest shall immediately vest in the Collateral Agent for
the benefit of the Secured Creditors, in which case the Collateral Agent shall
be entitled to exercise the power of attorney referred to in Section 5.1 to
execute, cause to be acknowledged and notarized and record said absolute
assignment with the applicable agency; (ii) take and practice or sell the
Patents and Copyrights; and (iii) direct the respective Assignor to refrain, in
which event such Assignor shall refrain, from practicing the Patents and
Copyrights directly or indirectly, and such Assignor shall execute such other
and further documents as the Collateral Agent may request further to confirm
this and to transfer ownership of the Patents and Copyrights to the Collateral
Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Collateral Agent's Security. No Assignor
will do anything to impair the rights of the Collateral Agent in the Collateral.
Each Assignor will at all times keep its Inventory and Equipment insured in
favor of the Collateral Agent, at such Assignor's own expense to the extent and
in the manner provided in the Credit Agreement; all policies or certificates or
certified copies thereof with respect to such insurance (and any other insurance
maintained by each Assignor) (i) shall be endorsed to the Collateral Agent's
satisfaction for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as loss payee), (ii) shall state that
such insurance policies shall not be cancelled or revised without 30 days' prior
written notice thereof by the insurer to the Collateral Agent, (iii) shall
provide that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the Secured Creditors and
(iv) and shall be deposited with the Collateral Agent. If any Assignor shall
fail to insure its Inventory and Equipment in accordance with the preceding
sentence, or if any Assignor shall fail to so endorse and deposit all policies
or certificates with respect thereto, the Collateral Agent shall have the right
(but shall be under no obligation) to procure such insurance and such Assignor
agrees to reimburse the Collateral Agent for all costs and expenses of procuring
such insurance. The Collateral Agent may apply any proceeds of such insurance in
accordance with Section 7.4. Each Assignor assumes all liability and
responsibility in
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connection with the Collateral acquired by it and the liability of such Assignor
to pay its Obligations shall in no way be affected or diminished by reason of
the fact that such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to such Assignor.
6.2. Warehouse Receipts Non-negotiable. Each Assignor agrees
that if any warehouse receipt or receipt in the nature of a warehouse receipt is
issued with respect to any of its Inventory, such warehouse receipt or receipt
in the nature thereof shall not be "negotiable" (as such term is used in Section
7-104 of the Uniform Commercial Code as in effect in any relevant jurisdiction
or under other relevant law).
6.3. Further Actions. Each Assignor will, at its own expense,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent
from time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral.
6.4. Financing Statements. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form acceptable to
the Collateral Agent, as the Collateral Agent may from time to time reasonably
request or as are necessary or desirable in the opinion of the Collateral Agent
to establish and maintain a valid, enforceable, first priority perfected
security interest in the Collateral as provided herein and the other rights and
security contemplated hereby all in accordance with the Uniform Commercial Code
as enacted in any and all relevant jurisdictions or any other relevant law. Each
Assignor will pay any applicable filing fees, recordation taxes and related
expenses. Each Assignor authorizes the Collateral Agent to file any such
financing statements without the signature of such Assignor where permitted by
law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. Each
Assignor agrees that, if there shall have occurred and be continuing (i) a
Bankruptcy Default or Notified Acceleration Event or (ii) any other Event of
Default or Acceleration Event, but in the case of this clause (ii) only to the
extent the Required Secured Creditors have so directed, then and in every such
case, subject to any mandatory requirements of applicable law then in effect,
the Collateral Agent, in addition to any rights now or hereafter existing under
applicable law, shall have all rights as a secured creditor under the Uniform
Commercial Code in all relevant jurisdictions and may also:
(a) personally, or by agents or attorneys, immediately retake
possession of the Collateral or any part thereof, from any Assignor 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
any Assignor's premises where any of the Collateral is located and
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remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Assignor; and
(b) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the
Receivables and the Contracts) constituting the Collateral to make any
payment required by the terms of such agreement, instrument or other
obligation directly to the Collateral Agent and may exercise any and
all remedies of such Assignor in respect of such Collateral; and
(c) withdraw all moneys, securities and instruments in the
Cash Collateral Account for application to the Obligations in
accordance with Section 7.4; and
(d) sell, assign or otherwise liquidate, or direct any
Assignor 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
(e) take possession of the Collateral or any part thereof, by
directing any Assignor in writing to deliver the same to the Collateral
Agent at any place or places designated by the Collateral Agent, in
which event such Assignor shall at its own expense:
(i) forthwith cause the same to be moved to the place
or places so designated by the Collateral Agent and there
delivered to the Collateral Agent, and
(ii) store and keep any Collateral so delivered to
the Collateral Agent at such place or places pending further
action by the Collateral Agent as provided in Section 7.2, 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
(f) license or sublicense, whether on an exclusive or
nonexclusive basis, any Marks, Patents or Copyrights included in the
Collateral for such term and on such conditions and in such manner as
the Collateral Agent shall in its sole judgment determine;
it being understood that each Assignor'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
Collateral Agent shall be entitled to a decree requiring specific
performance by such Assignor of said obligation.
7.2. Remedies; Disposition of the Collateral. Any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1 and any
other Collateral whether or not so repossessed by the Collateral Agent, may be
sold, assigned, leased or otherwise disposed of under one or more contracts or
as an entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral
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may be sold, leased or otherwise disposed of, in the condition in which the same
existed when taken by the Collateral Agent or after any overhaul or repair which
the Collateral Agent shall determine to be commercially reasonable. Any such
disposition which shall be a private sale or other private proceedings permitted
by such requirements shall be made upon not less than 10 days' written notice to
the relevant Assignor specifying the time at which such disposition is to be
made and the intended sale price or other consideration therefor, and shall be
subject, for the 10 days after the giving of such notice, to the right of such
Assignor or any nominee of such Assignor to acquire the Collateral involved at a
price or for such other consideration at least equal to the intended sale price
or other consideration so specified. Any such disposition which shall be a
public sale permitted by such requirements shall be made upon not less than 10
days' written notice to the relevant Assignor specifying the time and place of
such sale and, in the absence of applicable requirements of law, shall be by
public auction (which may, at the Collateral Agent's option, be subject to
reserve), after publication of notice of such auction not less than 10 days
prior thereto in two newspapers in general circulation in the City of New York.
To the extent permitted by any such requirement of law, the Collateral Agent and
the Secured Creditors may bid for and become the purchaser of the Collateral or
any item thereof, offered for sale in accordance with this Section without
accountability to any Assignor. If, under mandatory requirements of applicable
law, the Collateral Agent shall be required to make disposition of the
Collateral within a period of time which does not permit the giving of notice to
any Assignor as hereinabove specified, the Collateral Agent need give such
Assignor only such notice of disposition as shall be reasonably practicable in
view of such mandatory requirements of applicable law. Each Assignor agrees to
do or cause to be done all such other acts and things as may be reasonably
necessary to make such sale or sales of all or any portion of the Collateral
valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such Assignor's expense.
7.3. Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR
WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES
OR OF ANY STATE, and each Assignor hereby further waives, to the extent
permitted by law:
(a) all damages occasioned by such taking of possession except
any damages which are the direct result of the Collateral 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
Collateral 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
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delay the enforcement of this Agreement or the absolute sale of the
Collateral or any portion thereof, and each Assignor, 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 any Assignor therein and thereto, and
shall be a perpetual bar both at law and in equity against such Assignor 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 Assignor.
7.4. Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent a Mortgage to which any Assignor is a party
requires proceeds of Collateral under such Mortgage to be applied in accordance
with the provisions of this Agreement, the Mortgagee under such Mortgage) upon
any sale or other disposition of the Collateral, together with all other moneys
received by the Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing
the Collateral Agent of the type described in clauses (iv) and
(v) of the definition of "Obligations";
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount
equal to the outstanding Primary Obligations (as defined
below) shall be paid to the Secured Creditors as provided in
Section 7.4(e), 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 (as defined below) 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 (as
defined below) shall be paid to the Secured Creditors as
provided in Section 7.4(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 11.9(a) hereof, to the
respective Assignor or to whomever may be lawfully entitled to
receive such surplus.
(b) For purposes of this Agreement (w) "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, without duplication, 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, (x) "Primary
Obligations" shall mean
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(i) in the case of the Credit Agreement Obligations, all Obligations arising out
of or in connection with (including, without limitation, as obligor or
guarantor, as the case may be) the 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 under the
Credit Agreement and outstanding, and all Fees outstanding and unpaid at the
relevant time, (ii) in the case of the Senior Note Obligations, all Obligations
secured hereby arising out of or in connection with the principal of, and
interest on, the New Senior Notes and the New Senior Exchange Notes and (iii) in
the case of the Interest Rate Protection Obligations, all Obligations arising
out of or in connection with (including, without limitation, as a direct obligor
or a guarantor, as the case may be) Interest Rate Protection or Other Hedging
Agreements (other than indemnities, fees (including, without limitation,
attorneys' fees) and similar obligations and liabilities) and (y) "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 7.4 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 Paying Agent under the Credit Agreement and held by
it, for the equal and ratable benefit of 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 Paying Agent to the Collateral Agent for
distribution in accordance with Section 7.4(a) hereof.
(e) Except as set forth in Section 7.4(d) hereof, all payments
required to be made hereunder shall be made (x) if to the Bank Creditors, to the
Paying Agent under the Credit Agreement for the account of the Bank Creditors
and (y) if to any other Secured Creditors (other than the Collateral Agent), to
the trustee, paying agent or other similar representative (each a
"Representative") for such Secured Creditors or, in the absence of such a
Representative, directly to the other Secured Creditors.
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(f) For purposes of applying payments received in accordance
with this Section 7.4, the Collateral Agent shall be entitled to rely upon (i)
the Paying Agent under the Credit Agreement and (ii) the Representative for any
other Secured Creditors or, in the absence of such a Representative, upon the
respective Secured Creditors for a determination (which the Paying Agent, each
Representative for any Secured Creditors and the Secured Creditors agree (or
shall agree) to provide, upon request of the Collateral Agent) of the
outstanding Primary Obligations and Secondary Obligations owed to the Secured
Creditors. Unless it has actual knowledge (including by way of written notice
from a Representative for any Secured Creditor or directly from a Secured
Creditor) to the contrary, the Collateral 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 Assignor shall
remain liable to the extent of any deficiency between the amount of the proceeds
of the Collateral hereunder and the aggregate amount of the Obligations.
Notwithstanding anything to the contrary in this Agreement, (i) all actions
required or permitted to be taken under this Agreement by the Senior Noteholders
shall be so taken only by the trustee under the indenture under which the Senior
Notes were issued on behalf of the Senior Noteholders (the "Senior Notes
Trustee") as directed by the Senior Noteholders and (ii) all payments required
to be made with respect to the Senior Note Obligations shall be paid to the
Senior Notes Trustee, and the Collateral Agent shall be entitled (but not
required) to conclusively rely upon and act in accordance with any instructions
from the Senior Notes Trustee subject to the terms and conditions of this
Agreement and to assume that such instructions are being given in accordance
with such indenture
7.5. Remedies Cumulative. Each and every right, power and
remedy hereby specifically given to the Collateral Agent shall be in addition to
every other right, power and remedy specifically given under this Agreement, or
any other Secured Debt Document now or hereafter existing at law or in equity,
or by statute and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time or
simultaneously and as often and in such order as may be deemed expedient by the
Collateral Agent. All such rights, powers and remedies shall be cumulative and
the exercise or the beginning of exercise of one shall not be deemed a waiver of
the right to exercise of any other or others. No delay or omission of the
Collateral Agent in the exercise of any such right, power or remedy and no
renewal or extension of any of the Obligations shall impair any such right,
power or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence therein. No notice to or demand on any Assignor in
any case shall entitle it to any other or further notice or demand in similar or
other circumstances or constitute a waiver of any of the rights of the
Collateral Agent to any other or further action in any circumstances without
notice or demand. In the event that the Collateral Agent shall bring any suit to
enforce any of its rights hereunder and shall be entitled to judgment, then in
such suit the Collateral Agent may recover reasonable expenses, including
attorneys' fees, and the amounts thereof shall be included in such judgment. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Collateral Agent acting upon the instructions of the Required Secured
Creditors and that no other Secured Creditor shall have any right individually
or as a group, directly or indirectly, to seek to enforce or to enforce this
Agreement or to realize upon the security to be granted hereby or to
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cause the Collateral Agent or the Required Secured Creditors to take or cause to
be taken any action in respect of this Agreement (except as expressly
contemplated hereby), it being understood and agreed that such rights and
remedies may be exercised only by the Collateral Agent for the ratable benefit
of all Secured Creditors upon the terms and conditions of this Agreement, it
being further understood and agreed that nothing in this Agreement shall affect
the rights of the Secured Creditors to accelerate their respective Obligations
in accordance with their respective Secured Debt Documents.
7.6. Discontinuance of Proceedings. In case the Collateral
Agent shall have instituted any proceeding to enforce any right, power or remedy
under this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Collateral Agent, then and in every such
case each Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
7.7. Purchasers Of Collateral. Upon any sale of the Collateral
by the Collateral Agent hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of sale
proceeds by the Collateral Agent or the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold,
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication or
nonapplication thereof.
ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor hereby jointly and severally
agrees to indemnify, reimburse and hold the Collateral Agent, each other Secured
Creditor (other than the Senior Noteholders) and their respective successors,
assigns, employees, agents, servants and Representatives (including the
Administrative Agent) hereunder (hereinafter in this Section 8.1 referred to
individually as "Indemnitee," and collectively as "Indemnitees") harmless from
any and all liabilities, obligations, damages, injuries, penalties, claims,
demands, actions, suits, judgments and any and all costs, expenses or
disbursements (including reasonable attorneys' fees and expenses) (for the
purposes of this Section 8.1 the foregoing are collectively called "expenses")
of whatsoever kind and nature imposed on, asserted against or incurred by any of
the Indemnitees in any way relating to or arising out of this Agreement, any
other Secured Debt Document or any other document executed in connection
herewith and therewith or in any other way connected with the administration of
the transactions contemplated hereby and thereby or the enforcement of any of
the terms of, or the preservation of any rights under any thereof, or in any way
relating to or arising out of the manufacture, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Collateral
(including, without limitation, latent or other defects, whether or not
discoverable), any contract claim or, to the maximum extent permitted under
applicable law, the violation of the laws of any country, state or other
governmental body or unit, or any tort (including, without
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limitation, claims arising or imposed under the doctrine of strict liability, or
for or on account of injury to or the death of any Person (including any
Indemnitee), or property damage); provided that no Indemnitee shall be
indemnified pursuant to this Section 8.1(a) for expenses to the extent caused by
the gross negligence or willful misconduct of such Indemnitee. Each Assignor
agrees that upon written notice by any Indemnitee of the assertion of such a
liability, obligation, damage, injury, penalty, claim, demand, action, suit or
judgment, the Assignors shall assume full responsibility for the defense
thereof. Each Indemnitee agrees to use its best efforts to promptly notify the
Assignors of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a), each
Assignor hereby jointly and severally agrees to pay, or reimburse, the
Collateral Agent for (if the Collateral Agent shall have incurred fees, costs or
expenses because any Assignor shall have failed to comply with its obligations
under this Agreement or any other Secured Debt Document), any and all fees,
costs and expenses of whatever kind or nature incurred in connection with the
creation, preservation or protection of the Collateral Agent's Liens on, and
security interest in, the Collateral, including, without limitation, all 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 fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Collateral 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 8.1(a) or (b),
each Assignor hereby jointly and severally 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 any Assignor in this Agreement or any other
Secured Debt Document or in any writing contemplated by or made or delivered
pursuant to or in connection with this Agreement or any other Secured Debt
Document.
(d) If and to the extent that the obligations of any Assignor
under this Section 8.1 are unenforceable for any reason, such Assignor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral; Survival.
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the full payment of all the New Senior
Notes and the New Senior Exchange Notes issued under the Senior Note Documents,
the termination of all Interest Rate Protection or Other Hedging Agreements and
the payment of all other Obligations and notwithstanding the discharge thereof.
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ARTICLE IX
DEFINITIONS
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.
"Acceleration Event" shall mean the acceleration prior to the
stated final maturity, or the failure to pay at the stated final maturity, of
(i) Obligations representing principal of, or interest on, extensions of credit
(including, without limitation, all Letter of Credit Outstandings) pursuant to
the Credit Agreement, (ii) Obligations representing principal of, or interest
on, the New Senior Notes or the New Senior Exchange Notes or (iii) any Interest
Rate Protection Obligations if such Interest Rate Protection Obligations
aggregate at least $10,000,000 in amount, provided that, in each case, any such
Acceleration Event shall cease to exist upon payment in full of the Obligations
so accelerated or not paid.
"Administrative Agent" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Agreement" shall mean this Security Agreement as the same may
be modified, supplemented or amended from time to time in accordance with its
terms.
"Assignment of Claims Act Notice" shall have the meaning
provided in Section 3.8 of this Agreement.
"Assignor" shall have the meaning provided in the first
paragraph of this Agreement.
"Bank Creditor" shall have the meaning provided in the first
WHEREAS clause of this Agreement.
"Bankruptcy Default" shall mean any Default or Event of
Default with respect to the Company pursuant to Section 10.05 of the Credit
Agreement.
"Banks" shall have the meaning provided in the first WHEREAS
clause of this Agreement.
"Cash Collateral Account" shall mean the non- interest bearing
cash collateral account maintained with the Collateral Agent for the benefit of
the Secured Creditors, with one such account to be established for each
Assignor.
"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 11.2 to
this Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a)
of this Agreement.
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"Collateral Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Company" shall have the meaning provided in the first
paragraph of this Agreement.
"Contract Rights" shall mean all rights of any Assignor
(including, without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and
one or more additional parties (including, without limitation, (i) each
partnership agreement to which such Assignor is a party, (ii) any Interest Rate
Protection or Other Hedging Agreements and (iii) any Government Contracts).
"Copyrights" shall mean any United States copyright which any
Assignor now or hereafter has registered with 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 any Assignor.
"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 IX.
"Default" shall mean any event which, with notice or lapse of
time, or both, would constitute an Event of Default.
"Documentation Agent" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Documents" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by each Assignor and, in any event,
shall include, but shall not be limited to, all machinery, equipment,
furnishings, movable trade fixtures and vehicles now or hereafter owned by each
Assignor and any and all additions, substitutions and replacements of any of the
foregoing, wherever located, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default at any time
under, and as defined in, any of the Credit Agreement and the Senior Note
Documents and any payment default (after the expiration of any applicable grace
period) on any of the Obligations secured hereunder at such time.
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"GC Notice Recipient" shall mean each (i) contracting officer,
or the head of the respective U.S. government department or agency relating to
such Government Contract, (ii) surety or sureties upon the bond or bonds, if
any, relating to such Government Contract, and (iii) disbursing officer, if any,
designated in such Government Contract to make payment.
"General Intangibles" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New York
and shall in any event include all of any Assignor's claims, rights, powers,
privileges, authority, options, security interests, liens and remedies under any
partnership agreement to which such Assignor is a party or with respect to any
partnership of which such Assignor is a partner.
"Goods" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Government Contract" shall mean all Contracts between any
Assignor and the United States of America or any agency or department thereof.
"Indemnitee" shall have the meaning provided in Section 8.1 of
this Agreement.
"Instrument" shall have the meaning provided in Article 9 of
the Uniform Commercial Code as in effect on the date hereof in the State of New
York; provided that "Instrument" shall not include any Pledged Note or other
promissory note not required to be pledged pursuant to the Subsidiaries Security
Agreement.
"Instrument of Assignment" shall have the meaning provided in
Section 3.8 of this Agreement.
"Interest Rate Protection Creditors" shall have the meaning
provided in the second WHEREAS clause of this Agreement.
"Interest Rate Protection Obligations" shall have the meaning
provided in the definition of "Obligations" in this Article IX.
"Interest Rate Protection or Other Hedging Agreements" shall
have the meaning provided in the second WHEREAS clause of this Agreement.
"Inventory" shall mean merchandise, inventory and goods, and
all additions, substitutions and replacements thereof, wherever located,
together with all goods, supplies, incidentals, packaging materials, labels,
materials and any other items used or usable in manufacturing, processing,
packaging or shipping same; in all stages of production -- from raw materials
through work-in-process to finished goods -- and all products and proceeds of
whatever sort and wherever located and any portion thereof which may be
returned, rejected, reclaimed or repossessed by the Collateral Agent from any
Assignor's customers, and shall specifically include all "inventory" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York, now or hereafter owned by any Assignor.
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"Marks" shall mean any trademarks and service marks now held
or hereafter acquired by any Assignor, which are registered in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any political subdivision thereof and any
application for such trademarks or service marks, as well as any unregistered
marks used by any Assignor 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.
"Notified Acceleration Event" shall mean any Acceleration
Event with respect to which the Required Secured Creditors have given written
notice to the Collateral Agent that a "Notified Acceleration Event" exists,
provided that such written notice may only be given if such Acceleration Event
is continuing and, provided further that any such Notified Acceleration Event
shall cease to exist once there is no longer any Acceleration Event in
existence.
"Obligations" shall mean, with respect to each Assignor, (i)
all obligations and liabilities of such Assignor whether now existing or
hereafter incurred under, arising out of or in connection with the Subsidiaries
Guaranty and the due performance and compliance by such Assignor with all of the
terms, conditions and agreements contained in the Subsidiaries Guaranty (all
such obligations and liabilities described in this clause (i) being herein
collectively called the "Credit Agreement Obligations"); (ii) without
duplication of the obligations and liabilities covered by the foregoing clause
(i), all obligations and liabilities owing by the Company to the Interest Rate
Protection Creditors under, or with respect to, 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 the Company with all of the terms, conditions and agreements
contained therein (all such obligations and liabilities described in this clause
(ii) being herein collectively called the "Interest Rate Protection
Obligations"); (iii) all obligations and liabilities of such Assignor whether
now existing or hereafter incurred under, arising out of or in connection with
the Senior Note Subsidiaries Guaranty and the due performance and compliance by
such Assignor with all of the terms, conditions and agreements contained in the
Senior Note Subsidiaries Guaranty (all such obligations, liabilities and
indebtedness described in this clause (iii) being herein collectively called the
"Senior Note Obligations"); (iv) (x) any and all sums advanced by the Collateral
Agent in order to preserve the Collateral or preserve its security interest in
the Collateral in a manner not in violation of the terms hereof and (y) any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Collateral Agent in
performing its duties hereunder, or in any way relating to or arising out of its
actions as Collateral Agent in respect of this Agreement except for those
resulting solely from the Collateral Agent's own gross negligence or willful
misconduct; (v) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of such Assignor referred to in
clauses (i) through (iv) above, after an Event of Default shall have occurred
and be continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the Collateral,
or of any exercise by the Collateral Agent of its rights hereunder, together
with reasonable attorneys' fees and court costs; and (vi) all amounts paid by
any Indemnitee as to which such Indemnitee has the right to reimbursement under
Section 8.1 of
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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.
"Original Subsidiaries Security Agreement" shall have the
meaning provided in the sixth WHEREAS clause of this Agreement.
"Patents" shall mean any United States patent to which any
Assignor now or hereafter has title or license to use, as well as any
application for a United States patent now or hereafter made by any Assignor.
"Permitted Filings" shall have the meaning provided in Section
2.1 of this Agreement.
"Pledged Securities" shall have the meaning provided in the
Subsidiaries Pledge Agreement.
"Primary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Collateral Agent or any Assignor from time to time with respect
to any of the Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined
in the Uniform Commercial Code as in effect on the date hereof in the State of
New York, now or hereafter owned by any Assignor and, in any event, shall
include, but shall not be limited to, all of such Assignor's rights to payment
for goods sold or leased or services performed by any Assignor, whether now in
existence or arising from time to time hereafter, including, without limitation,
rights evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence of indebtedness or security, together with (a) all
security pledged, assigned, hypothecated or granted to or held by any Assignor
to secure the foregoing, (b) all of such Assignor's right, title and interest in
and to any goods, the sale of which gave rise thereto, (c) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (e) all books, records, ledger cards,
and invoices relating thereto, (f) all evidences of the filing of financing
statements and other statements and the registration of other
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instruments in connection therewith and amendments thereto, notices to other
creditors or secured parties, and certificates from filing or other registration
officers, (g) all credit information, reports and memoranda relating thereto,
and (h) all other writings related in any way to the foregoing; provided that
"Receivables" shall not include any Pledged Note or other promissory note not
required to be pledged pursuant to the Subsidiaries Pledge Agreement.
"Representative" shall have the meaning provided in Section
7.4 of this Agreement.
"Required Secured Creditors" shall have the meaning provided
in Section 10.4(a) to this Agreement.
"Requisite Class Creditors" shall have the meaning provided in
Section 11.2 to this Agreement.
"Restricted Government Contract" shall mean any Government
Contract which by its terms prohibits the assignment of Receivables arising
thereunder.
"Secondary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in Section
1.1 of this Agreement.
"Secured Debt Documents" shall mean this Agreement, any other
Credit Document, any Interest Rate Protection or Other Hedging Agreement and any
Senior Note Documents, in each case to the extent then in effect and subject to
the security interest granted hereby, collectively.
"Senior Noteholders" shall have the meaning provided in the
third WHEREAS clause of this Agreement.
"Senior Note Documents" shall have the meaning provided in the
third WHEREAS clause of this Agreement.
"Senior Note Obligations" shall have the meaning provided in
the definition of "Obligations" in this Article IX.
"Senior Note Subsidiaries Guaranty" shall have the meaning
provided in the third WHEREAS clause of this Agreement.
"Subsidiaries Guaranty" shall have the meaning provided in the
fifth WHEREAS clause of this Agreement.
"Syndication Agent" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
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"Termination Date" shall have the meaning provided in Section
11.9(a) of this Agreement.
ARTICLE X
THE COLLATERAL AGENT
10.1. Appointment. The Secured Creditors, by their acceptance
of the benefits of this Agreement hereby irrevocably designate Bankers Trust
Company, as Collateral Agent, to act as specified herein. Each Secured Creditor
hereby irrevocably authorizes, and each holder of any Obligation by the
acceptance of such Obligation and by the acceptance of the benefits of this
Agreement shall be deemed irrevocably to authorize, the Collateral Agent to take
such action on its behalf under the provisions of this Agreement and any
instruments and agreements referred to herein and to exercise such powers and to
perform such duties hereunder as are specifically delegated to or required of
the Collateral Agent by the terms hereof and such other powers as are reasonably
incidental thereto. The Collateral Agent may perform any of its duties hereunder
or thereunder by or through its authorized agents, sub-agents or employees.
10.2. Nature of Duties. (a) The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement.
The duties of the Collateral Agent shall be mechanical and administrative in
nature; the Collateral Agent (in such capacity) shall not have by reason of this
Agreement, any other Credit Document or any other Secured Debt Document a
fiduciary relationship in respect of any Secured Creditor; and nothing in this
Agreement, any other Credit Document or any other Secured Debt Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Collateral Agent any obligations in respect of this Agreement except as
expressly set forth herein.
(a)(b) The Collateral Agent shall not be responsible for
insuring the Collateral or for the payment of taxes, charges or assessments or
discharging of Liens upon the Collateral or otherwise as to the maintenance of
the Collateral.
(b)(c) The Collateral Agent shall not be required to ascertain
or inquire as to the performance by any Assignor of any of the covenants or
agreements contained in this Agreement, any other Credit Document or any other
Secured Debt Document.
(c)(d) The Collateral Agent shall be under no obligation or
duty to take any action under this Agreement or any Credit Document if taking
such action (i) would subject the Collateral Agent to a tax in any jurisdiction
where it is not then subject to a tax or (ii) would require the Collateral Agent
to qualify to do business in any jurisdiction where it is not then so qualified,
unless the Collateral Agent receives security or indemnity satisfactory to it
against such tax (or equivalent liability), or any liability resulting from such
qualification, in each case as results from the taking of such action under this
Agreement or (iii) would subject the Collateral Agent to in personam
jurisdiction in any locations where it is not then so subject.
(d)(e) Notwithstanding any other provision of this Agreement,
neither the Collateral Agent nor any of its officers, directors, employees,
affiliates or agents shall, in its
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individual capacity, be personally liable for any action taken or omitted to be
taken by it in accordance with this Agreement except for its own gross
negligence or willful misconduct.
10.3. Lack of Reliance on the Collateral Agent. Independently
and without reliance upon the Collateral Agent, each Secured Creditor, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of each
Assignor and its respective Subsidiaries in connection with the making and the
continuance of the Obligations and the taking or not taking of any action in
connection therewith, and (ii) its own appraisal of the creditworthiness of each
Assignor and its respective Subsidiaries, and the Collateral Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Secured Creditor with any credit or other information with respect thereto,
whether coming into its possession before the extension of any Obligations or
the purchase of any Notes or at any time or times thereafter. The Collateral
Agent shall not be responsible in any manner whatsoever to any Secured Creditor
for the correctness of any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or the security interests granted hereunder or the financial condition
of any of the Assignors or any of their respective Subsidiaries or be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement, or the financial
condition of any of the Assignors or any of their respective Subsidiaries, or
the existence or possible existence of any Default or Event of Default. The
Collateral Agent makes no representations as to the value or condition of the
Collateral or any part thereof, or as to the title of the Assignors thereto or
as to the security afforded by this Agreement.
10.4. Certain Rights of the Collateral Agent. (a) No Secured
Creditor shall have the right to cause the Collateral Agent to take any action
with respect to the Collateral, with only the Required Secured Creditors having
the right to direct the Collateral Agent to take any such action, it being
understood and agreed that nothing in this Agreement shall affect the rights of
the Secured Creditors to accelerate their respective Obligations in accordance
with their respective Secured Debt Documents. If the Collateral Agent shall
request instructions from the Required Secured Creditors, with respect to any
act or action (including failure to act) in connection with this Agreement, the
Collateral Agent shall be entitled to refrain from such act or taking such
action unless and until it shall have received instructions from the Required
Secured Creditors and to the extent requested, appropriate indemnification in
respect of actions to be taken, and the Collateral Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Secured Creditor shall have any right of action whatsoever against
the Collateral Agent as a result of the Collateral Agent acting or refraining
from acting hereunder in accordance with the instructions of the Required
Secured Creditors. As used herein, the term "Required Secured Creditors" shall
mean the Required Banks (or, to the extent required by Section 13.12 of the
Credit Agreement, all of the Banks). Notwithstanding anything to the contrary
contained in the immediately preceding sentence, if at any time the principal of
any Obligations secured hereby has been accelerated, or the final maturity date
with respect to any such principal Obligations has occurred, and as a result
thereof one or more payment Events of Default (where the aggregate principal
amount of such Obligations accelerated or not paid at final maturity equals or
exceeds $100,000,000), which payment Events of Default shall have continued
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in existence for at least 90 consecutive days after the date of such
acceleration or final maturity, and the Required Secured Creditors at such time
(determined without regard to this sentence) have not directed the Collateral
Agent to commence enforcement proceedings pursuant to this Agreement, then so
long as such payment Event of Default is continuing the Secured Creditors
holding at least a majority of the outstanding Obligations secured hereby
subject to such payment Event of Default shall constitute the Required Secured
Creditors for purposes of causing the Collateral Agent to commence enforcement
proceedings pursuant to this Agreement, provided that in such event the Secured
Creditors which would constitute the Required Secured Creditors in the absence
of this sentence shall have the right to direct the manner and method of
enforcement so long as such directions do not materially delay or impair the
taking of enforcement action.
(e) Notwithstanding anything to the contrary contained herein,
the Collateral Agent is authorized, but not obligated, (i) to take any action
reasonably required to perfect or continue the perfection of the Liens on the
Collateral for the benefit of the Secured Creditors and (ii) when instructions
from the Required Secured Creditors have been requested by the Collateral Agent
but have not yet been received, to take any action which the Collateral Agent,
in good faith, believes to be reasonably required to promote and protect the
interests of the Secured Creditors in the Collateral; provided that once
instructions have been received, the actions of the Collateral Agent shall be
governed thereby and the Collateral Agent shall not take any further action
which would be contrary thereto.
(f) Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent shall not be required to take any action that
exposes or, in the good faith judgment of the Collateral Agent may expose, the
Collateral Agent or its officers, directors, agents or employees to personal
liability, unless the Collateral Agent shall be adequately indemnified as
provided herein, or that is, or in the good faith judgment of the Collateral
Agent may be, contrary to this Agreement, any Secured Debt Document or
applicable law.
10.5. Reliance. The Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by the proper Person or entity, and, with respect to all
legal matters pertaining to this Agreement and the other Security Documents and
its duties thereunder and hereunder, upon advice of counsel selected by it.
10.6. Indemnification. To the extent the Collateral Agent is
not reimbursed and indemnified by the Assignors under this Agreement, the
Secured Creditors (other than the Senior Noteholders) will reimburse and
indemnify the Collateral Agent, in proportion to their respective outstanding
principal amounts (including, for this purpose, the stated amount of outstanding
letters of credit and any unreimbursed drawings in respect of letters of credit,
as well as any unpaid Primary Obligations in respect of Interest Rate Protection
or Other Hedging Agreements, as outstanding principal) of Obligations, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Collateral Agent in performing its duties hereunder, or in any way relating to
or arising out of its actions as
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35
Collateral Agent in respect of this Agreement except for those resulting solely
from the Collateral Agent's own gross negligence or willful misconduct. The
indemnities set forth in this Article X shall survive the repayment of all
Obligations, with the respective indemnification at such time to be based upon
the outstanding principal amounts (determined as described above) of Obligations
at the time of the respective occurrence upon which the claim against the
Collateral Agent is based or, if same is not reasonably determinable, based upon
the outstanding principal amounts (determined as described above) of Obligations
as in effect immediately prior to the termination of this Agreement. The
indemnities set forth in this Article X are in addition to any indemnities
provided by the Banks to the Collateral Agent pursuant to the Credit Agreement,
with the effect being that the Banks shall be responsible for indemnifying the
Collateral Agent to the extent the Collateral Agent does not receive payments
pursuant to this Section 10.6 from the Secured Creditors (other than the Senior
Noteholders) (although in such event, and upon the payment in full of all such
amounts owing to the Collateral Agent, the respective Banks who paid same shall
be subrogated to the rights of the Collateral Agent to receive payment from such
Secured Creditors).
10.7. The Collateral Agent in its Individual Capacity. With
respect to its obligations as a lender under the Credit Agreement and any other
Credit Documents to which the Collateral Agent is a party, and to act as agent
under one or more of such Credit Documents, the Collateral Agent shall have the
rights and powers specified therein and herein for a "Bank", an "Agent" or an
"Administrative Agent", as the case may be, and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
terms "Banks", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Collateral Agent in its
individual capacity. The Collateral Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking, investment
banking, trust or other business with any Assignor or any Affiliate or
Subsidiary of such Assignor as if it were not performing the duties specified
herein or in the other Credit Documents, and may accept fees and other
consideration from such Assignor for services in connection with the Credit
Agreement, the other Credit Documents and otherwise without having to account
for the same to the Secured Creditors.
10.8. Holders. The Collateral Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Collateral Agent. Any request, authority
or consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note, shall be final and
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee of such Note or Note issued in exchange therefor.
10.9. Resignation by the Collateral Agent. (a) The Collateral
Agent may resign from the performance of all of its functions and duties under
this Agreement at any time by giving 15 Business Days' prior or written notice
to the Assignors and the Secured Creditors. Such resignation shall take effect
upon the appointment of a successor Collateral Agent pursuant to clause (b) or
(c) below.
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(b) If a successor Collateral Agent shall not have been
appointed within said 15 Business Day period by the Required Secured Creditors,
the Collateral Agent, with the consent of the Company, which consent shall not
be unreasonably withheld, shall then appoint a successor Collateral Agent who
shall serve as Collateral Agent hereunder or thereunder until such time, if any,
as the Required Secured Creditors appoint a successor Collateral Agent as
provided above.
(c) If no successor Collateral Agent has been appointed
pursuant to clause (b) above by the 15th Business Day after the date of such
notice of resignation was given by the Collateral Agent, as a result of a
failure by the Company to consent to the appointment of such a successor
Collateral Agent, the Required Secured Creditors shall then appoint a successor
Collateral Agent who shall serve as Collateral Agent hereunder or thereunder
until such time, if any, as the Required Secured Creditors appoint a successor
Collateral Agent as provided above.
10.10. Fees and Expenses of Collateral Agent. (a) Each
Assignor (by its execution and delivery hereof) hereby agrees jointly and
severally to pay to Bankers Trust Company as the original Collateral Agent, such
fees as have been separately agreed to in writing with Bankers Trust Company for
acting as Administrative Agent and as Collateral Agent hereunder. In the event a
successor Collateral Agent is at any time appointed pursuant to the preceding
Section 10.9, each Assignor hereby agrees jointly and severally to pay such
successor Collateral Agent such fees for acting as such as would customarily be
charged by such Collateral Agent for acting in such capacity in similar
situations. Absent manifest error, the determination by a successor Collateral
Agent of the fees owing to it shall be conclusive and binding upon each
Assignor.
(b) In addition, each Assignor agrees jointly and severally to
pay all reasonable out-of-pocket costs and expenses of the Collateral Agent in
connection with this Agreement and any actions taken by the Collateral Agent
hereunder, and agrees jointly and severally to pay all costs and expenses of the
Collateral Agent in connection with the enforcement of this Agreement and the
documents and instruments referred to herein (including, without limitation,
reasonable fees and disbursements of counsel for the Collateral Agent).
ARTICLE XI
MISCELLANEOUS
11.1. Notices. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been duly given or made when delivered to
the party to which such notice, request, demand or other communication is
required or permitted to be given or made under this Agreement, addressed as
follows:
(a) if to any Assignor, to such Assignor at its address set
forth opposite its signature below:
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with a copy to:
Coltec Industries Inc
3 Coliseum Center
2550 West Tyvola Road
Charlotte, North Carolina 28217
Attention: Thomas B. Jones, Jr.
Telephone: (704) 423-7052
Facsimile: (704) 423-7127
(b) if to the Collateral Agent:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Mary Kay Coyle
Telephone: (212) 250-9094
Facsimile: (212) 250-7200
(c) if to any Bank Creditor (other than the Collateral Agent),
either (x) to the Administrative Agent, at the address of the
Administrative Agent specified in the Credit Agreement or (y) at such
address as such Bank Creditor shall have specified in the Credit
Agreement;
(d) if to any other Secured Creditor, either (x) to the
Representative for such Secured Creditor, at such address as such
Representative may have provided to the Assignors and the Collateral
Agent from time to time, or (y) in the absence of such a Representative
directly to such Secured Creditor at such address as such Secured
Creditor shall have specified in writing to the Assignors and the
Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
11.2. Waiver; Amendment. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each of the Assignors and the
Collateral Agent (with the written consent of the Required Banks (or all the
Banks if required by Section 13.12 of the Credit Agreement)); provided, however,
that any change, waiver, modification or variance materially adversely affecting
the rights and benefits of a single Class (as defined below) of Secured
Creditors (and not all Secured Creditors in a like or similar manner) shall also
require the written consent of the Requisite Class Creditors (as defined below)
of such affected Class; provided, further, that any Class shall not be
considered to be affected differently from any other Class due to the
Obligations of any such other Class being paid, repaid, refinanced, renewed or
extended and the Collateral being released, in
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whole or in part (whether by action of such other Class or otherwise), as
security for such Class and such other Class. Notwithstanding anything to the
contrary contained above, it is understood and agreed that the Required Banks
may agree to modifications to this Agreement for the purpose, among other
things, of securing additional extensions of credit (including, without
limitation, pursuant to the Credit Agreement or any refinancing or extension
thereof). For the purpose of this Agreement, the term "Class" shall mean, at any
time, each class of Secured Creditors with outstanding Obligations secured
hereby at such time, i.e., (x) the Bank Creditors as holders of the Credit
Agreement Obligations secured hereby, (y) the Senior Noteholders as the holders
of Senior Note Obligations secured hereby or (z) the Interest Rate Protection
Creditors as the holders of the Interest Rate Protection Obligations secured
hereby; provided that, without limiting the foregoing, it is expressly
acknowledged and agreed that other creditors may be added as "Secured Creditors"
hereunder (either as part of an existing Class of creditors or as a newly
created Class) with the consent of the Required Secured Creditors, and that such
addition shall not require the written consent of the Requisite Class Creditors
of the various Classes. For the purpose of this Agreement, the term "Requisite
Class Creditors" of any Class shall mean each of (i) with respect to the Credit
Agreement Obligations, the Required Banks and (ii) with respect to any other
Obligations, the holders of at least a majority of all Obligations outstanding
from time to time.
11.3. Obligations Absolute; Subrogation. The obligations of
each Assignor hereunder shall remain in full force and effect without regard to,
and shall not be impaired by, (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of such
Assignor; (b) any exercise or non-exercise, or any waiver of, any right, remedy,
power or privilege under or in respect of this Agreement or any other Secured
Debt Document except as specifically set forth in a waiver granted pursuant to
Section 11.2 hereof; (c) any renewal of, extension of, amendment to or
modification of any Secured Debt Document or any security for any of the
Obligations; (d) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument including,
without limitation, this Agreement; (e) any furnishing of any additional
security to the Collateral Agent or its assignee or any acceptance thereof or
any release of any security by the Collateral Agent or its assignee; (f) any
limitation on any party's liability or obligations under any such instrument or
agreement or any invalidity or unenforceability, in whole or in part, of any
such instrument or agreement or any term thereof, or (g) any limitation on any
other Assignor's liability or obligations under this Agreement, the Subsidiaries
Guaranty, the Senior Note Subsidiaries Guaranty or any other Secured Debt
Document or any invalidity or unenforceability, in whole or in part, of this
Agreement, the Subsidiaries Guaranty, the Senior Note Subsidiaries Guaranty or
any other Secured Debt Documents or any term thereof, whether or not any
Assignor shall have notice or knowledge of any of the foregoing.
11.4. Successors and Assigns. This Agreement shall be binding
upon each Assignor and its respective successors and assigns and shall inure to
the benefit of the Collateral Agent and each Secured Creditor and their
respective successors and assigns, provided that no Assignor may transfer or
assign any or all of its rights or obligations hereunder without the written
consent of the Collateral Agent. All agreements, statements, representations and
warranties made by each Assignor herein or in any certificate or other
instrument delivered by such Assignor or on its behalf under this Agreement
shall be considered to have been relied upon
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by the Secured Creditors and shall survive the execution and delivery of this
Agreement, the other Credit Documents and the Interest Rate Protection or Other
Hedging Agreements, regardless of any investigation made by the Secured
Creditors or on their behalf.
11.5. Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
11.6. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
11.8. Assignors' Duties. It is expressly agreed, anything
herein contained to the contrary notwithstanding, that each Assignor shall
remain liable to perform all of the obligations, if any, assumed by it with
respect to the Collateral and the Collateral Agent shall not have any
obligations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, nor shall the Collateral Agent be required or
obligated in any manner to perform or fulfill any of the obligations of any
Assignor under or with respect to any Collateral.
11.9. Termination; Release. (a) After the Termination Date (as
defined below), without any action on the part of any Secured Creditor, this
Agreement shall terminate and be of no further force or effect (provided that
all indemnities set forth herein including, without limitation, in Section 10.6
hereof shall survive any such termination) and the Collateral Agent, at the
request and expense of the respective Assignor, will execute and deliver to such
Assignor a proper instrument or instruments acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to the
respective Assignor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Collateral
Agent and has not theretofore been sold or otherwise applied or released
pursuant to this Agreement, together with any moneys at the time held by the
Collateral Agent hereunder. As used in this Agreement, "Termination Date" shall
mean the first to occur of (i) that date upon which the Total Commitment and all
Interest Rate Protection or Other Hedging Agreements have been terminated, no
Note under the Credit Agreement is outstanding, all Letters of Credit have been
terminated and all other Credit Agreement Obligations (excluding normal
continuing indemnity obligations which survive in accordance with their terms,
so long as no amounts are then due and payable in respect thereof) then owing by
such Assignor have been paid in full, (ii) that date upon which the Collateral
is automatically released pursuant to the first sentence of Section 26 of Part I
of the Fifth Amendment to Credit Agreement or the Administrative Agent directs
the Collateral Agent to release the Collateral pursuant to the second sentence
of Section
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26 of Part I of the Fifth Amendment to the Credit Agreement and (iii) that date
upon which the Credit Documents are amended to release all Collateral subject to
this Agreement.
(b) In the event that any Assignor is released from its
obligations pursuant to the Subsidiaries Guaranty in accordance with the terms
thereof, then such Person shall cease to be an Assignor hereunder and the
Collateral Agent, at the request and expense of the respective Person, will
execute and deliver to such Person, a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement as to such
Person, and will duly assign, transfer and deliver to such Person (without
recourse and without any representation or warranty) such of the Collateral
pledged by such Person as may be in possession of the Collateral Agent and has
not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any moneys of such Person at the time held by the
Collateral Agent hereunder.
(c) It is expressly acknowledged and agreed that the
Collateral may be sold from time to time to the extent permitted by, and in
accordance with the terms of, the Credit Agreement. In addition, it is expressly
acknowledged and agreed that any or all of the Collateral may be released by the
Collateral Agent acting at the direction of the Required Secured Creditors. Upon
any sale of the type described in the second preceding sentence or release of
any such Collateral as provided in the immediately preceding sentence, the
Collateral Agent shall, at the request and expense of the respective Assignor,
and without the further consent of, or liability to, any Secured Creditor,
release such Collateral and execute and deliver to such Assignor a proper
instrument or instruments acknowledging the release of such Collateral from this
Agreement, and will duly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) the Collateral being sold
or released as described above. Notwithstanding anything to the contrary
contained above in this Section 11.9(c), in the event the Senior Notes Trustee
shall have notified the Collateral Agent in writing that the Senior Note
Obligations have been accelerated in accordance with the terms of the Senior
Note Documents (and (x) the Senior Note Obligations have not been paid in full
and (y) the respective acceleration has not been rescinded), the Collateral
Agent shall not thereafter release any Collateral pursuant to this Section
11.9(c) or consent to any termination of this Agreement, except in each case
with the prior written consent of the Senior Noteholders holding a majority of
the then outstanding Senior Note Obligations secured hereby (or following the
payment in full of the Senior Note Obligations or the rescission of the
respective acceleration)
(d) At any time that any Assignor desires that the Collateral
Agent take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 11.9(a), (b) or (c), it shall deliver to the
Collateral Agent a certificate signed by its chief financial officer stating
that the release of the respective Collateral is permitted pursuant to Section
11.9(a), (b) or (c), and the Collateral Agent shall be entitled (but not
required) to conclusively rely thereon. If requested by the Collateral Agent
(although the Collateral Agent shall have no obligation to make any such
request), such Assignor shall furnish appropriate legal opinions (from counsel
acceptable to the Collateral Agent) to the effect set forth in the immediately
preceding sentence. The Collateral Agent shall have no liability whatsoever to
any Secured Creditor as the result of any release of Collateral by it as
permitted by this Section 11.9. Upon any release of
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Collateral pursuant to Section 11.9(a), (b) or (c), none of the Secured
Creditors shall have any continuing right or interest in such Collateral, or the
proceeds thereof.
11.10. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the Company
and the Collateral Agent.
11.11. Amendment and Restatement. Upon the execution and
delivery of this Agreement by the parties hereto, the Original Subsidiaries
Security Agreement shall be amended, restated and superseded in its entirety by
this Agreement, effective as of the date hereof, with all rights, obligations
and security interests created under or granted pursuant to the Original
Subsidiaries Security Agreement continuing from the date thereof.
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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.
ASSIGNORS:
Address:
AMI INDUSTRIES INC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
CII HOLDINGS INC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
COLTEC CANADA INC,
as an Assignor
By /S/ ROBERT J. TUBBS
-----------------------------------
Title: Executive Vice President,
General Counsel and Secretary
COLTEC INDUSTRIAL PRODUCTS INC,
as an Assignor
By /S/ ROBERT J. TUBBS
-----------------------------------
Title: Executive Vice President,
General Counsel and Secretary
COLTEC NORTH CAROLINA, INC,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
COLTEC TECHNICAL SERVICES INC,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
DELAVAN INC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
GARLOCK INC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
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GARLOCK INTERNATIONAL INC,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
COLTEC INTERNATIONAL SERVICES CO.,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
GARLOCK OVERSEAS CORPORATION,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
HABER TOOL COMPANY INC,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
HOLLEY PERFORMANCE PRODUCTS INC,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
JAMCO PRODUCTS, LLC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
MENASCO AEROSYSTEMS INC,
as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
STEMCO INC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
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44
WALBAR INC, as an Assignor
By /S/ ROBERT J. TUBBS
------------------------------------
Title: Executive Vice President,
General Counsel and Secretary
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BANKERS TRUST COMPANY,
as Collateral Agent
By /s/ DAVID J. BELL
----------------------------
Title: Vice President
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ANNEX A
to
Subsidiaries Security Agreement
SCHEDULE OF PERMITTED FILINGS
Secured Original Description
Location Party/ies Number File Date of Collateral Permitted
- -------- --------- ------ ----------------------- ---------
47
ANNEX B
to
Subsidiaries Security Agreement
SCHEDULE OF CHIEF EXECUTIVE OFFICES
48
ANNEX C
to
Subsidiaries Security Agreement
SCHEDULE OF RECORD LOCATIONS
Location County
- -------- ------
49
ANNEX D
to
Subsidiaries Security Agreement
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
ADDRESS STATE COUNTY
- ------- ----- ------
50
ANNEX E
to
Subsidiaries Security Agreement
SCHEDULE OF TRADE, FICTITIOUS AND OTHER NAMES
51
ANNEX F
to
Subsidiaries Security Agreement
SCHEDULE OF MARKS
52
ANNEX G
to
Subsidiaries Security Agreement
SCHEDULE OF PATENTS AND APPLICATIONS
Patent Number Date Issued
(Application) (Applied)
- ------------- ---------
53
ANNEX H
to
Subsidiaries Security Agreement
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
(i)
54
ANNEX B
to
SUBSIDIARIES SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
Assignor Address County
- -------- ------- ------
1. AMI Industries, Inc. 1275 North Newport Rd El Paso
Colorado Springs, CO 80916-2779
2. CII Holdings Inc 1100 North Market Street New Castle
Suite 780
Wilmington, DE 19801
3. Coltec Canada Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West. Tyvola Road
Charlotte, NC 28217
4. Coltec Industrial Products Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
5. Coltec International Services Co c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
6. Coltec North Carolina Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
7. Coltec Technical Services Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
55
8. Delavan Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
P. O. Box 65100 Polk
811 Fourth Street
West Des Moines, IA 50265-0100
9. Garlock Inc 1666 Division Street Wayne
Palmyra, NY 14522
10. Garlock International Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
11. Garlock Overseas Corporation c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Road
Charlotte, NC 28217
12. Haber Tool Company Inc 42001 Koppernick Wayne
Canton, MI 48187
13. Holley Performance Products Inc 1801 Russellville Road Robertson
Bowling Green, KY 42102
14. Jamco Products, LLC 9426 Old Katy Rd. Harris
Houston, TX 77055
15. Menasco Aerosystems Inc 10900 N.E. 8th Street King
Suite 900
Bellevue, WA 98004
16. Stemco Inc 300 E. Industrial Blvd. Harrison
Longview, TX 75606
17. Walbar Inc Peabody Industrial Center Essex
Peabody, MA 01960-3369
-2-
56
DIVISIONS
Assignor Address County
- -------- ------- ------
Delavan Gas Turbine Products P. O. Box 65100 Polk
Division of Delavan Inc 811 Fourth Street
West Des Moines, IA 50265-0100
France Compressor Products 104 Pheasant Run Bucks
Division of Coltec Industrial Newtown, PA 18940
Products Inc
Garlock Sealing Technologies 1666 Division Street Wayne
Division of Garlock Inc Palmyra, NY 14522
Haber Tool Operation of 42001 Koppernick Wayne
Haber Tool Company Inc Canton, MI 48187
Holley Performance Products 1801 Russellville Road Warren
Bowling Green, KY 42101
Menasco Aerospace Everett 2701-94th Street, S.W. Snohomish
Division of Menasco Aerosytems Inc Everett, WA 98204
Stemco Truck Products Division 300 E. Industrial Blvd. Harrison
of Stemco Inc Longview, TX 75602-4720
Walbar Arizona Division of 323 S. Bracken Lane Maricopa
Walbar Inc Chandler, AZ 85224
Walbar Metals Division of Peabody Industrial Center Essex
Walbar Inc Fifth Street
Peabody, MA 01960-336
-3-
57
ANNEX C
to
SUBSIDIARIES SECURITY AGREEMENT
SCHEDULE OF RECORD LOCATIONS
Assignor Address County
- -------- ------- ------
1. AMI Industries, Inc. 1275 North Newport Rd. El Paso
Colorado Springs, CO 80916-2779
2. Coltec Canada Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
3. CII Holdings Inc 1100 North Market Street New Castle
Ste. 780
Wilmington, DE 19801
4. Coltec Industrial Products Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
a. France Compressor Products 104 Pheasant Run Bucks
Division Newtown, PA 18940
b. Plastomer Products Division 23 Friends Lane Bucks
Newtown, PA 18949
a. Porter Process 1600 Industry Road Montgomery
P. O. Box 310
Hatfield, PA 19440
c. Valves & Industrial Plastics 602 North 10th Street Camden
Camden, NJ 08101-0648
5. Coltec International Services Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
58
6. Coltec North Carolina Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
7. Coltec Technical Services Inc c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
8. Delavan Inc 811 Fourth Street Polk
West Des Moines, IA 50265-0100
c/o Coltec Industries Inc Mecklenburg
Three Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
a. Delavan Gas Turbine Products P. O. Box 65100 Polk
Division 811 Fourth Street
West Des Moines, IA 50265-0100
b. Delavan-Carroll Operation 400 North Bella Vista Drive Carroll
P. O. Box 826
Carroll, IA 51401-0826
c. Delavan Steel Treating 2250 Fuller Road Polk
Operation West Des Moines, IA 50265
d. Delavan Power Generation 2200 Delavan Drive Polk
West Des Moines, IA 50265
9. Garlock Bearings Inc 700 Mid-Atlantic Parkway Gloucester
Thorofare, NJ 08086
-2-
59
Assignor Address County
- -------- ------- ------
10. Garlock Inc 1666 Division Street Wayne
Palmyra, NY 14522
a. Garlock Sealing Technologies 1666 Division Street Wayne
Palmyra, NY 14522
a. Compression Packing 300 Alling Drive Wayne
Products Sodus, NY 14551
b. Garlock Rubber 201 Dana Drive Green
Technologies Paragould, AR 72450
c. Garlock Metallic Gaskets 1977 Kindred Street Harris
Houston, TX 77049
d. Lubrikup 208 Rose Street Lycoming
P. O. Drawer 3066
Williamsport, PA 17701
11. Garlock International Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
12. Garlock Overseas Corporation c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
13. Haber Tool Company Inc 42001 Koppernick Wayne
Canton, MI 48187
a. Danti Tool-Saginaw 1270 Agricola Drive Wayne
Saginaw, MI 48604
b. Danti Tool-Standish 4281 Air Park Drive Arenez
P. O. Box 767
Standish, MI 48658
14. Holley Performance Products Inc 1801 Russellville Road Robertson
Bowling Green, KY 42102
a. Springfield Plant 509 Industrial Drive Robertson
Springfield, TN 37172
-3-
60
Assignor Address County
- -------- ------- ------
15. Jamco Products, LLC 9426 Old Katy Rd. Harris
Houston, TX 77055
16. Menasco Aerosystems Inc 10900 N.E. 8th Street King
Suite 900
Bellevue, WA 98004
a. Menasco Aerospace Everett 2701-94th Street, S.W. Snohomish
Division Everett, WA 98204
17. Stemco Inc 300 E. Industrial Blvd. Harrison
Longview, TX 75606
18. Walbar Inc Peabody Industrial Center Essex
Peabody, MA 01960-3369
a. Walbar Arizona 323 S. Bracken Lane Maricopa
Chandler, AZ 85224
a. Walbar Tempe 811 West Broadway Maricopa
Tempe, AZ 85282
b. Walbar Metals Peabody Industrial Center Essex
Fifth Street
Peabody, MA 01960
a. Greenwood Plant 5502 Highway 25 North Greenwood
Hodges, SC 29653
19. Jamco, LLC 300 E. Industrial Blvd. Harrison
Longview, TX 75606
-4-
61
ANNEX D
to
SUBSIDIARIES SECURITY AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATION
Assignor Address County
- -------- ------- ------
1. AMI Industries, Inc. 1275 North Newport Rd. El Paso
Colorado Springs, CO 80916-2779
2. CII Holdings Inc 1100 North Market Street New Castle
Ste. 780
Wilmington, DE 19801
3. Coltec Canada Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
4. Coltec Industrial Products Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
a. France Compressor Products 104 Pheasant Run Bucks
Division Newtown, PA 18940
b. Plastomer Products Division 23 Friends Lane Bucks
Newtown, PA 18949
a. Porter Process 1600 Industry Road Montgomery
P. O. Box 310
Hatfield, PA 19440
c. Valves & Industrial Plastics 602 North 10th Street Camden
Camden, NJ 08101-0648
5. Coltec International Services Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
6. Coltec North Carolina Inc c/o Coltec Industries Inc Mecklenburg
62
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
7. Coltec Technical Products Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
8. Delavan Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
a. Delavan Gas Turbine Products P. O. Box 65100 Polk
Division 811 Fourth Street
West Des Moines, IA 50265-0100
b. Delavan-Carroll Operation 400 North Bella Vista Drive Carroll
P. O. Box 826
Carroll, IA 51401-0826
c. Delavan Steel Treating 2250 Fuller Road Polk
Operation West Des Moines, IA 50265
d. Delavan Power Generation 2200 Delavan Drive Polk
West Des Moines, IA 50265
9. Garlock Inc 1666 Division Street Wayne
Palmyra, NY 14522
a. Garlock Sealing Technologies 1666 Division Street Wayne
Palmyra, NY 14522
2860 Plymouth Drive Ontario, Canada
Oakville, Ontario
Canada L6H 5S8
4100 Rue Garlock Quebec, Canada
Sherbrooke, Quebec
Canada J1L 1W5
-2-
63
a. Compression Packing 300 Alling Drive Wayne
Products Sodus, NY 14551
b. Garlock Rubber 201 Dana Drive Green
Technologies Paragould, AR 72450
c. Garlock Metallic Gaskets 1977 Kindred Street Harris
Houston, TX 77049
d. Lubrikup 208 Rose Street Lycoming
P. O. Drawer 3066
Williamsport, PA 17701
e. Stemco, Inc. 300 East Boulevard Harrison
Harrison, TX 75606
10. Garlock International Inc c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
11. Garlock Overseas Corporation c/o Coltec Industries Inc Mecklenburg
3 Coliseum Centre
2550 West Tyvola Rd.
Charlotte, NC 28217
12. Haber Tool Company Inc 42001 Koppernick Wayne
Canton, MI 48187
a. Danti Tool-Saginaw 1270 Agricola Drive Wayne
Saginaw, MI 48604
b. Danti Tool-Standish 4281 Air Park Drive Arenez
P. O. Box 767
Standish, MI 48658
c. General Motors Corp. 2100 Burlingame Wyoming
Grand Rapids, MI 49509 (consignment
Inventory at
GM plant)
13. Holley Performance Products Inc 1801 Russellville Road Robertson
Bowling Green, KY 42102
-3-
64
a. Springfield Plant 509 Industrial Drive Robertson
Springfield, TN 37172
14. Jamco Products, LLC 9426 Old Katy Rd. Harris
Houston, TX 77055
15. Menasco Aerosystems Inc 10900 N.E. 8th Street King
Suite 900
Bellevue, WA 98004
a. Menasco Aerospace Everett 2701-94th Street, S.W. Snohomish
Division Everett, WA 98204
16. Walbar Inc Peabody Industrial Center Essex
Peabody, MA 01960-3369
a. Walbar Arizona 323 S. Bracken Lane Maricopa
Chandler, AZ 85224
a. Walbar Tempe 811 West Broadway Maricopa
Tempe, AZ 85282
b. Walbar Metals Peabody Industrial Center Essex
Fifth Street
Peabody, MA 01960
a. Greenwood Plant 5502 Highway 25 North Greenwood
Hodges, SC 29653
-4-
65
ANNEX E
to
SUBSIDIARIES SECURITY AGREEMENT
SCHEDULE OF TRADE, FICTITIOUS AND OTHER NAMES
Assignor Name
-------- ----
1. AMI Industries, Inc. AMI Aircraft Seating Systems
2. Coltec Industrial Products France Compressor Products
Plastomer Products
Porter Process
Camden Operation
Valves & Industrial Plastics
3. Delavan Inc Delavan-Carroll Operation
Delavan Fuel Metering Operation
Delavan Steel Treating Operation
Delavan Power Generation Operation
Delavan Gas Turbine Products
4 Garlock Inc Garlock Sealing Technologies
Garlock Rubber Technologies
Garlock Metallic Gaskets
Lubrikup
5. Haber Tool Company Haber Tool Operation
Danti Tool & Die, Inc.
Danti Tool - Saginaw
Danti Tool - Standish
6. Lewis Engineering Company Delavan Process Instrumentation
7. Menasco Aerosystems Inc Menasco Aerospace Everett
8. Quincy Compressor Ortman Fluid Power
9. Stemco Inc Stemco Truck Products
10. Walbar Inc Walbar Arizona
Walbar Metals
66
Annex F
to
SUBSIDIARIES SECURITY AGREEMENT
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
UTILIZED BY THE ANCHOR PACKING COMPANY
Registration No. Registration Date Description
---------------- ----------------- -----------
254,554 March 26, 1929 A & Design
160,368 October 24, 1922 A & Design
1,644,249 May 14, 1991 A & Design
342,295 January 12, 1937 AMFLEX
1,083,502 January 24, 1978 ANCHORPAK
617,860 December 20, 1955 ANKLON
1,086,914 March 7, 1978 ANKOFLUOR
1,040,442 June 1, 1976 ANKOLITE
608,562 July 12, 1955 ANKOLITE
605,166 April 26, 1955 ANKOPRENE
391,118 October 21, 1941 ANKOR-FLEX
224,948 March 8, 1927 ANKORITE
605,505 May 3, 1955 ANKOTALLIC
1,193,180 April 6, 1982 ANKOTEX
992,853 September 10, 1974 CONQUISTADOR
91,305 April 29, 1913 HYDROIL
824,892 February 28, 1967 MOL-ANKO-THANE
1,081,037 January 3, 1978 ROTA-FACE
58,839 April 28, 1908 TAURIL
550,937 November 20, 1951 TRIPLE "U"
920,213 September 14, 1971 TWICOM
1,033,285 February 10, 1976 ULTRAGLIDE
618,677 January 3, 1956 VY/FLEX
67
Annex F
Page 2
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
OWNED BY COLTEC NORTH CAROLINA INC FOR USE BY
THE COMPANY AND ITS SUBSIDIARIES
Registration No. Registration Date Description
---------------- ----------------- -----------
909,429 March 9, 1971 CORPORATE LOGO
1,699,817 July 7, 1992 COLTEC INDUSTRIES &
LOGO
1,712,599 September 1, 1992 COLTEC INDUSTRIES &
LOGO
1,737,584 December 1, 1992 COLTEC INDUSTRIES &
LOGO
1,742,117 December 22, 1992 COLTEC INDUSTRIES &
LOGO
1,767,835 April 27, 1993 COLTEC INDUSTRIES &
LOGO
1,835,154 May 10, 1994 COLTEC INDUSTRIES &
LOGO
68
Annex F
Page 3
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
OWNED BY DELAVAN INC
Registration No. Registration Date Description
---------------- ----------------- -----------
1,351,698 July 30, 1985 COLOR JET
1,454,865 September 1, 1987 COLOR JET
1,276,170 May 1, 1984 COLOR-BRATE
1,301,207 October 23, 1984 COLOR-BRATE
1,184,648 January 5, 1982 DEL-O-FLO
1,272,744 April 3, 1984 DELA-FIT
1,065,670 May 17, 1977 DELAVAN
1,052,304 November 9, 1976 DELAVAN
1,292,321 August 28, 1984 RAINDROP
1,012,800 June 10, 1975 RAINDROP
1,253,590 October 11, 1983 SDX
723,593 November 7, 1961 SONAC
704,944 September 27, 1960 SONAC
1,100,006 August 22, 1978 SWIRL-AIR
1,021,995 October 7, 1975 WHIRL-RAIN
167,179 May 16, 1991 BALL-JET
082,895 July 30, 1990 DURA-JET
1,837,824 May 31, 1994 DELAVAN
1,975,827 May 28, 1996 DELAVAN PROTEK
69
Annex F
Page 4
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
74/570,379 September 6, 1994 CLEAN AIR TECHNOLOGY
74/633,711 February 13, 1995 PRO-TEC
70
Annex F
Page 5
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
UTILIZED BY GARLOCK INC AND OWNED BY COLTEC NORTH CAROLINA
Registration No. Registration Date Description
---------------- ----------------- -----------
312,661 May 1, 1934 BELMONT
661,669 May 13, 1958 BELMONT
321,984 February 19, 1935 BELMONT & DESIGN
661,670 May 13, 1958 BELMONT & DESIGN
1,198,739 June 22, 1982 BLUE-GARD
48,356 December 26, 1905 CALIPER & SCALE DESIGN
181,026 March 11, 1924 CALIPER & SCALE DESIGN
642,595 March 12, 1957 CALIPER & SCALE DESIGN
647,488 June 25, 1957 CALIPER & SCALE DESIGN
439,630 July 6, 1948 CHEMISEAL
739,748 October 23, 1962 CHEMISEAL
605,500 May 3, 1955 CHEVRON
291,050 January 26, 1932 CHEVRON & DESIGN
610,403 August 9, 1955 CHEVRON & DESIGN
611,808 September 6, 1955 CHRISSCROSS BRAID
1,602,289 June 19, 1990 ENVELON
1,602,856 January 8, 1991 ES-FLO
763,513 January 21, 1964 FLEX-O-MATIC
807,815 May 3, 1966 FLUR-O-FRAN
818,903 November 22, 1966 FLUR-O-FRAN
662,591 June 3, 1958 FRANCE & DESIGN
1,076,821 November 8, 1977 GAR-FIL
1,127,190 December 4, 1979 GAR-MAX
908,922 March 2, 1971 GAR-SEAL
581,360 October 20, 1953 GAR-SEAL
849,823 May 28, 1968 GARFITE
904,160 December 15, 1970 GARFLEX
1,016,821 July 29, 1975 GARLOCK
647,010 June 18, 1957 GARLOCK
643,892 April 9, 1957 GARLOCK
801,648 January 11, 1966 GARLOCK
844,381 February 20, 1968 GARLOCK
642,594 March 12, 1957 GARLOCK
184,261 May 20, 1924 GARLOCK
356,210 April 19, 1938 GARLOCK
647,487 June 25, 1957 GARLOCK
1,284,068 July 3, 1984 GARLOCK
372,869 November 14, 1939 GARLOCK
377,981 May 21, 1940 GARLOCK
377,983 May 21, 1940 GARLOCK
71
Annex F
Page 6
646,952 June 18, 1957 GARLOCK
23,420 July 25, 1893 GARLOCK & DESIGN
806,599 April 5, 1966 GARLOCK & DESIGN
37,332 November 19, 1901 GARLOCK & DESIGN
1,209,712 September 21, 1982 GARPHIL
958,129 May 1, 1973 GARTHANE
1,301,678 October 23, 1984 GRAPH-LOCK
291,999 March 1, 1932 GUARDIAN
884,653 January 20, 1970 GUARDIAN
943,554 September 26, 1972 GUARDIAN
1,120,036 June 12, 1979 GUARDIAN
860,761 November 26, 1968 GYLON
1,067,113 June 7, 1977 HC & DESIGN
508,591 April 12, 1949 KLOZURE
572,833 April 7, 1953 LATTICE BRAID
378,035 May 21, 1940 LUBALL
1,577,765 January 16, 1990 LUBRIKUP & DESIGN
756,832 September 17, 1963 MARBLOCK
855,561 August 27, 1968 MARINEPAK
612,198 September 13, 1955 MECHANIPAK
1,600,832 June 12, 1990 MILL-RIGHT
800,512 December 14, 1965 MULTI/FACTURING
728,548 March 13, 1962 F/S
1,305,022 November 13, 1984 PACKMASTER
930,297 March 7, 1972 PLAST-O-LON
871,317 June 17, 1969 PLASTI-PAK
769,027 May 5, 1964 PLASTI-THREAD
830,588 June 20, 1967 POLYFLEX
1,624,844 November 27, 1990 SLUDGE-PAK
1,278,970 May 22, 1984 SOLDIER DESIGN
721,009 September 5, 1961 STANDARD PACKING OF
THE WORLD
1,237,326 May 10, 1983 SYNTHE-PAK
1,078,252 November 29, 1977 THERMOLUBE
1,107,793 December 5, 1978 UNI-CARTRIDGE
1,717,214 September 15, 1992 POWR-STOR
1,983,797 July 2, 1996 THE SEAL CIRCUIT
2,057,119 April 29, 1997 SIGNUM
72
Annex F
Page 7
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
74/486,360 February 4, 1994 FLUIDTEC
74/505,505 March 24, 1994 FLEXSEAL
74/570,376 October 6, 1994 MICRO-TEC
74/713,822 August 10, 1995 IFG & Design
75/008,867 October 20, 1995 GARLOCK & Design
75/013,746 November 1, 1995 CRISSCROSS-BRAID
75/213,220 December 13, 1996 GARLOCK SEALING
TECHNOLOGIES
75/326,418 July 16, 1997 MODEL 64
75/282,702 April 29, 1997 ISO-GARD
75/274,704 April 15, 1997 QUICKSET
75/274,880 April 15, 1997 QUICKBUSHING
75/307,615 June 12, 1997 IFG
75/313,975 June 24, 1997 DURATUFF
75/346,277 August 25, 1997 MICRO-TEC
75/367,992 October 9, 1997 SHIPSET
75/367,993 October 3, 1997 STRESS-SAVER
73
Annex F
Page 8
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
UTILIZED BY STEMCO INC AND OWNED BY COLTEC NORTH CAROLINA
Registration No. Registration Date Description
---------------- ----------------- -----------
1,595,097 May 8, 1990 AUTOCOACH
935,683 June 13, 1972 BATT-METER
1,105,543 November 7, 1978 DRIVELESS HUBODOMETER
1,109,921 December 26, 1978 ENGLER
1,595,098 May 8, 1990 FUELCOACH
1,034,829 March 2, 1976 GRIT GUARD
876,024 September 2, 1969 REVO-COUNT
1,517,800 December 27, 1988 S & DESIGN
1,636,155 February 26, 1991 SS4
788,516 April 20, 1965 STEMCO
801,703 January 11, 1966 STEMCO
1,016,820 July 19, 1975 STEMCO
801,705 January 11, 1966 STEMCO in Oval
788,172 April 13, 1965 STEMCO in Oval
1,418,935 December 2, 1986 STEMCO in Oval
1,646,844 June 4, 1991 STEMCO SYSTEM 4
1,394,705 May 27, 1986 STEMCO-ENGLER
1,420,805 December 16, 1986 STEMCO-MONROE
602,976 March 8, 1955 WIG-WAG
1,044,631 July 27, 1976 PRO-TORQ
1,417,174 November 18, 1986 PRO TORQUE
1,977,349 May 28, 1996 HYCARB
2,038,511 February 18, 1997 SPINDLE NUT KEEPER RING DESIGN
74
Annex F
Page 9
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
75/345,012 August 21, 1997 SENTINEL
75/349,954 August 29, 1997 SS4
75/355,075 September 11, 1997 HIGHER STANDARD OF
PERFORMANCE
75/356,563 September 15, 1997 ESP
75/362,550 September 25, 1997 DISCOVER
75/362,551 September 25, 1997 VOYAGER
75/385,341 November 5, 1997 STEMCO & "S" Design
75/406,981 December 17, 1997 ADVANTAGE 2000
75/408,576 December 19, 1997 GUARDIAN HP
75
Annex F
Page 10
UNITED STATES TRADEMARK REGISTRATIONS
UTILIZED BY WALBAR INC AND OWNED BY COLTEC NORTH CAROLINA
Registration No. Registration Date Description
---------------- ----------------- -----------
992,349 September 3, 1974 WALCOAT
1,796,539 October 5, 1993 SIMULCOAT
76
Annex F
Page 11
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
UTILIZED BY COLTEC INDUSTRIAL PRODUCTS INC
Registration No. Registration Date Description
---------------- ----------------- -----------
1,776,257 June 15, 1993 MULTILUBE
Serial No. Filing Date Description
---------- ----------- -----------
75/041,642 January 11, 1996 The Cylinder Solution
People
77
Annex G
None.
78
Annex H
to
Subsidiary Security Agreement
UNITED STATES PATENTS AND PATENT APPLICATIONS
UTILIZED BY GARLOCK INC AND OWNED BY COLTEC NORTH CAROLINA
Patent No. Issue Date Title
---------- ---------- -----
4,258,927 03/31/81 Shaft Seal with Retractable PTFE-Lined Sealing
Lip
4,274,641 06/23/81 Shaft Seal and Method
4,289,318 09/15/81 Hydraulic Motor Balancing Ring Seal
4,289,321 09/15/81 Pressure Shaft Seal and Method
4,308,938 01/05/82 Disc Brake Assembly and Method
4,311,316 01/19/82 Shaft Seal and Method
4,328,974 05/11/82 Stuffing Box Packing System and Method
4,335,889 06/22/82 Shaft Seal with Liner Flange
4,364,588 12/12/82 Band Seal Clamp
4,406,847 09/27/83 Method for Making a Lip type Shaft Seal Having
a Resin Liner
4,501,429 02/26/85 Mechanical Seal Flush Agitator and Wear Monitor
for Mechanical Seals
4,504,067 03/12/85 High Pressure Shaft Seal with Low-Friction
4,510,966 04/16/85 Plug Valve with Floating Stem Seal
4,552,367 11/12/85 Hub Seal and Axle Assembly and Method for Its
Making
4,817,966 04/04/89 Rotary Shaft Bearing Isolator Seal
4,852,890 08/01/8 Rotary Shaft Bearing Isolator Seal
4,859,526 08/22/89 High Temperature Compressed Asbestos Sheet
79
Annex H
Page 2
Re.33,192 04/03/90 Method of Molding an Elastomeric Shaft Seal
with a Polytetrafluoroethlene Liner
Simultaneously Formed Thereon
4,900,629 02/13/90 High Compressibility Gasket Material
4,913,951 04/03/90 Fabrication of Reinforced PTFE Gasketing Materia
4,961,891 10/09/90 High Compressibility Gasketing Material
4,990,296 02/05/91 Welding of Filled Sintered PTFE
4,994,303 02/19/91 Fiber Impregnation Process
5,004,248 04/02/91 Unitized Seal with Unitizing Joint Remote from
Seal Lip
5,024,451 06/18/91 Multi-Position Labyrinth Seal Ring
5,480,161 01/2//96 Shaft Seal With Controlled Porosity Elements
5,484,173 01/16/96 Flowing Arch Expansion Joint Using FEP Liner
Bonded to Fiberglass Fabric Layer and
Reinforced With a Plurality of Fabric Plies
Covered with Elastomeric Outer Layer
5,533,737 7/9/96 Seals With Particle Exclusion Means
5,511,797 4/30/96 Tandem Seal
5,603,513 2/18/97 Compressed Non-Asbestos Gasketing for Steam
80
Annex H
Page 3
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
08/877,002 June 16, 1997 Gasket With Wedge-Shaped Grooves for Facing
Materials
08/620,406 March 22, 1996 Compact Five Ring Stuffing Box
08/783,094 January 14, 1997 Anti-Buckling Spiral Wound Gasket
08/844,445 April 18, 1997 Floating Wiper Seal Assembly
08/869,692 June 5, 1997 Labyrinth Seal Device And Method
of Assembly
81
Annex H
Page 4
UNITED STATES PATENTS
OWNED BY COLTEC INDUSTRIAL PRODUCTS INC
Patent No. Issue Date Title
---------- ---------- -----
5,501,827 March 26, 1996 Laser Markable PTFE Resin Material and Method
of Making
5,697,390 December 16, 1997 Process for Producing Filled PTFE Resin
Composite Materials
5,722,667 March 3, 1998 Seal for Use Between Planar Surfaces
82
Annex H
Page 5
UNITED STATES PATENTS AND PATENT APPLICATIONS
OWNED BY JAMCO LLC
Patent No. Issue Date Description
---------- ---------- -----------
5,421,594 June 6, 1995 Gasket
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
08/647,435 April 30, 1996 Hybrid Gasket
83
Annex H
Page 6
UNITED STATES PATENTS AND PATENT APPLICATIONS
UTILIZED BY STEMCO INC AND OWNED BY COLTEC NORTH CAROLINA INC
Patent No. Issue Date Description
---------- ---------- -----------
4,989,222 01/29/91 Electronic Hubodometer
4,939,481 02/05/91 Axle Ring Removal Tool
5,328,275 7/12/94 Unitized Wheel Hub and Bearing Assembly
5,478,642 12/26/95 Resin-Based Friction Material Comprising
Aramid, Acrylic and Carbon Fibers In a Phenolic
Resin Binder
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
08/381,699 January 31, 1995 Vented Hubcap
08/501,494 July 12, 1995 Resin-Based Friction Material
08/572,921 December 15, 1995 Vent Valve Concept
08/916,978 August 14, 1997 Unitized Wheel Hub and Bearing Assembly With
Lubricant Distributing Vanes
08/891,477 July 11, 1997 Contaminent Excluding Hubcap Vent Plug
08/957,807 October 24, 1997 Hub Seal With Machinable Thrust Ring
84
Annex H
Page 7
UNITED STATES PATENTS AND APPLICATIONS
UTILIZED BY WALBAR INC AND OWNED BY COLTEC NORTH CAROLINA INC
Patent No. Issue Date Title
---------- ---------- -----
4,293,338 10/06/81 Diffusion Coating Composition of Improved
Flowability
5,482,578 1/09/96 Diffusion Coating Process
5,492,726 2/20/96 Platinum Group Silicide Modified Aluminide
Coating Process and Products
5,668,607 11/18/97 Platinum Group Silicide Modified Aluminide
Coating Process and Products
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
08/520,282 August 28, 1995 Improved Diffusion Coating Process
85
Annex H
Page 8
UNITED STATES PATENTS AND APPLICATIONS
OWNED BY DELAVAN INC.
Patent No. Issue Date Title
---------- ---------- -----
4,186,877 02/05/80 Bypass Nozzle
4,360,156 11/23/92 Fluid Metering and Spraying
4,570,858 02/18/86 Coating Spray Nozzle Tips
4,623,277 11/18/86 Self-Tightening Shaft Coupler
5,058,809 10/22/91 Foam Generating Aspirating Nozzle
5,115,634 5/26/92 Simplex Airblast Fuel Injection Method
5,152,463 10/6/92 Aspirating Simplex Spray Nozzle
5,224,333 7/6/93 Simplex Airblast Fuel Injection
5,472,145 12/5/95 Straight Stream Nozzle
5,491,972 2/20/96 Combination Ignitor and Fuel Atomizer Nozzle
Assembly for a Gas Turbine
5,701,732 12/30/97 Method and Appartus for Purging of Gas Turbine
Injectors
5,732,730 12/31/98 Combined Check Valve and Metering Valve Assembly
Pending Applications:
Serial No. Filing Date Description
---------- ----------- -----------
08/866,467 May 30, 1997 Purging of Fluid Spray Apparatus
86
Annex H
Page 9
UNITED STATES PATENTS
OWNED BY AMI INDUSTRIES INC.
Patent No. Issue Date Title
---------- ---------- -----
5,643,128 07/01/97 Harmonic Drive Using Guided, Floating Cam
Driven Cylinders As Power Transmitting Elements
87
Annex I
to
SUBSIDIARIES SECURITY AGREEMENT
UNITED STATES COPYRIGHT REGISTRATIONS
OWNED BY GARLOCK INC
Registration No. Registration Date Description
---------------- ----------------- -----------
VA 455,795 March 11, 1991 Slide Chart